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Fruit-Wrap, or Contracts Jump the Shark

Via boingboing, grapes with an End User License Agreement:

The recipient of the produce contained in this package agrees not to propagate or reproduce any portion of the produce, including (but not limited to) seeds, stems, tissue and fruit.

To paraphrase Johnny Mac:  They cannot be serious!

But I suspect that they are.  More commentary shortly.

What’s going on? As some of the more informed comments at boingboing point out, the legend on the grape package is likely an extension of a patent on the relevant cultivar, meaning that the producer mostly wants to stop production of the grape by competitors who clone this cultivar, rather than invest in their own.

So far, so good; that explanation comes right out of the standard IP playbook. The weirdness begins with the fact that the legend appears on the package at all. Patent rights are enforceable regardless of the presence or absence of any “contract” not to infringe the patent. (I put that word in quotation marks because it’s pretty doubtful that any reasonable judge or jury would find that this amounts to a binding agreement). Giving the world notice of patent rights by marking the product can be a good thing because it protects the patent owner’s right to seek certain remedies. But I’m skeptical that this legend amounts to a form of effective marking on that score. We might regard the notice as an in terrorem reminder that cloning is forbidden, whatever the source of the rule. Pirates beware! But the small print undermines that speculation. How many grape pirates read the package so closely?

The weirdness continues with the fact that the legend appears on a package that looks like it’s in the consumer or retail market. In other words, ordinary grape buyers might read this — despite the tiny print — and wonder whether they can use the grapes to make grape jelly or do whatever else you might want to do with the grapes, other than simply eat them. So far as I know, nothing in patent law prevents grape buyers from doing any of these things, even with patented grapes.

One wonders, however, whether a notice that says “Not licensed for jelly making” would be enforceable. My belief is that it would not, but I suspect that many people would disagree. Suppose the notice said “These grapes are licensed for jelly making, but only so long as the jelly maker agrees to share the recipe for the jelly with anyone who asks.” Someone buys the grapes, makes jelly, then rejects a request from a third party for the recipe. The grape producer sues. What result? Is the result different if the grapes are patented? Is the result different if the grape cultivar is the product of expensive engineering — but the producer did not obtain a patent? I’ve heard it argued that the patent makes a difference here, and the idea of a downstream servitude is a legitimate effort to calibrate a public/private balance regarding access to things and ideas. But why should the inventor who forgoes a patent be denied the opportunity to create an equivalent balance? I’m not suggesting that the “make the recipe available” servitude should be enforced regardless of the existence of a patent. I question whether the IP right itself is doing the work here, as opposed to the right owner’s investment and/or intention.

What is merely weirdness in the fruit-wrap context is more clearly problematic in other, more familiar contexts, such as the “Licensed for Private Home Use Only” legend that appears on or in connection with a lot of pre-recorded videotapes and DVDs. Is that legend effective to bar teaching, scholarly, journalistic, and/or critical uses of those materials that might otherwise fall within the fair use doctrine or the exception in Section 110 of the Copyright Act for public performance of copyrighted works in a classroom setting? Again, I think that it is not (and it rarely purports to be a contract, as the fruit-wrap tries to be), but again I suspect that many would disagree, especially if they are in the film or television industries. More to the point, many teachers, scholars, journalists and/or critics either uncritically follow the legend or are bound by institutional policies that expect that they do so.

All of this calls to mind the hypothetical question that lurks behind my interest in these things. If the disposable camera carries a legend that says “Licensed for Single Use Only,” can you use it twice?

Overbreadth. An IP problem from the produce section to your family room.

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