Pro CD V. Zeidenberg - Facts

Facts

The case involved a graduate student, Matthew Zeidenberg, who purchased a telephone directory database, SelectPhone, on CD-ROM produced by ProCD. ProCD had compiled the information from over 3,000 telephone directories, at a cost of more than $10 million. To recoup its costs, ProCD discriminated based on price by charging commercial users a higher price than it did to everyday, non-commercial users.

Zeidenberg purchased a non-commercial copy of SelectPhone and after opening the packaging and installing the software on his personal computer, Zeidenberg created a website and offered the information originally on the CD to visitors for a fee that was less than what ProCD charged its commercial customers.

At the time of purchase, Zeidenberg may not have been aware of any prohibited use; however, the package itself stated that there was a license enclosed. Moreover, because "the software license splashed across the screen and would not let him proceed without indicating acceptance," Zeidenberg had ample opportunity to read the license before using SelectPhone. Zeidenberg was presented with this license when he installed the software, which he accepted by clicking assent at a suitable dialog box—this type of license is commonly known as a click-through license or clickwrap. The license was contained, in full, on the CD.