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Software packaging OK'd by judge

Software makers may use large boxes to package smaller computer disks without violating a law prohibiting misleading marketing practices.

In the first court decision of its kind, a California judge has ruled that software makers may use large boxes to package smaller computer disks without running afoul of a state law that prohibits misleading marketing practices, an attorney involved in the case said.

San Francisco Superior Court Judge Ernest Goldsmith dismissed suits filed against nine software manufacturers, said Claude Stern, an attorney who represented Corel and Mindscape. According to Stern, an attorney at Fenwick & West, the judge ruled that the law proscribing "nonfunctional slack fill" did not apply to software.

Stern added that the ruling was the first time a judge anywhere had considered whether such laws--which are designed to prevent consumers from being mislead by oversized packaging--applied to software. Stern said the ruling was likely to be followed in most other states, which have similar laws on the books.

Had the case gone the other way, "it would have meant that the entire software industry could be held up in different jurisdictions," he said. Other companies sued included Symantec, Sierra On-Line, and Xerox.

California's Fair Packaging and Labeling Act is aimed at products like cereal and soap, which are sold by volume, Stern said. Software is different, he added.

"What [software consumers] are really concerned about is functionality, what a product does. You don't buy a product because it's contained on two disks instead of one."

Software makers package their disks in oversized boxes in order to "extol the virtues of their product and describe what the product does, and without the box there is not other place to do it," Stern said.

An attorney for the plaintiff, a nonprofit agency, was not immediately available for comment.

Although not at issue in this case, computer resellers have often used oversized packages to prevent theft. Noteboooks, which are easy to steal in their original packages, are many times shipped in printer boxes to mislead would-be thieves.