A California appeals court has ruled that a DVD technology licensee was contractually obligated to comply with confidential technical specifications that were provided to the licensee only after it had signed the license agreement. The license agreement explicitly stated that the specs would be provided in this way, and the parties’ actions confirmed that this had been their expectation. The court held that the specs were not incorporated by reference, but were made binding anyway by the post-signing disclosure provisions of the license agreement. See DVD Copy Control Association, Inc., v. Kaleidescape, Inc., No. CV031829 (Cal. App. — 6th Dist. Aug. 12, 2009) (reversing trial-court judgment in favor of licensee and remanding for further proceedings).
(The concurring opinion of presiding judge Rushing, beginning on page 37 of the PDF, is worth reading for its discussion of business realities.)