In mid-February, the New York Attorney General’s office settled a complaint against Blue Coat, a business hardware and software company, for its End User Licence Agreement which prohibited benchmarking. The NYAG challenged the provision, which was only revealed to customers after purchase. The settlement comes with an approximately $30,000 slap on the wrist, an a promise not to include any anti-benchmarking language in EULAs for products sold in New York.

Here is the NY Attorney General’s press release. This is the second time, I believe, that the NYAG has gone after speech restrictive clauses in EULAs on behalf of consumers and succeeded. The success is particularly notable because Judge Easterbrook’s decision in ProCD v. Zeidenberg, often cited as the seminal case on EULA enforceability, suggests a different result. Yet, as I often inform my students, just because there is strong law against you doesn’t mean you can not win.

A couple of questions: First, why won’t the California AG’s office also be a leader in this area? Second, how did the NYAG win, and can consumer rights lawyers around the country expand this victory to challenge anti-Fair Use and reverse engineering clauses as well? Third, do this successes spell the end for ProCD?