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1. First, what is the nature of the new work? Is it transformative or merely derivative; is it educational and noncommercial or commercial?
2. Second, what is the amount of the old work re-used?
3. Third, is the old work largely creative or largely fact-based?
4. Fourth, what is the impact by the new work on the market for the old work? The first and fourth prongs are given considerably more weight than the second and third prongs.

Let's consider a student setting up a tape recorder and simply recording your lectures. (We'll set aside any Honor Code violations that explicitly give you the right to ban taping; we'll only deal with your "intellectual property" right.)

1. First, if the students aren't selling the recordings and using the recordings to help themselves and others learn, prong one cuts in their favor. Also, they're transforming your ephemeral audio into more durable format, so prong one further cuts in their favor under the transformative question.
2. Secondly, although they may be taping the whole old work and prong two cuts against a finding of Fair Use, this is only one prong and a less important one at that.
3. Third, your lecture is likely primarily fact-driven, so the third prong cuts in favor of finding Fair Use.
4. Finally, you're most likely not selling your existing lectures in a recorded format. You may be selling your lectures via tuition at the University, but so long as these tapes are not serving as a substitute for the University experience and/or degree, you're not being harmed. (On the contrary, I've had many people tell me they decided to go to law school because of LoaLS, because it de-mystified what law school was. In this way I'm helping the market for my law school professors, and so your hypothetical recording students could be helping the market for your copyrighted works.)

In summary, a student would likely have a legal right to record your lectures under Fair Use because three of the four prongs (and both of the important ones) would cut in their favor. If you would like make your lectures available for sale or distribution that might change the analysis. But the key thing is to disabuse yourself of this notion that your "intellectual property" is an absolute. Fair Use is explicitly codified in the Copyright Act because it is recognized that oftentimes the incu

This is a shameless plug, but it's on-topic.

I've been recreating my law school lectures at the University of Cincinnati (where I am a first-year student focusing on copyright and technology law). Instead of recording the raw lecture audio, and dealing with the copyright and privacy concerns, I've been taking detailed notes, adding my own analysis, and capturing new creative expression. (Yes there are still some copyright issues, but my lawyer and I are in agreement that what I am doing does fall under Fair Use.) This new creative expression is then placed under CC-Attribution and the GNU FDL so others can do new and innovative things with it.

I recorded roughly one 15-20 minute episode per lecture, with about 40 lectures in each of my four substantive classes.

My episodes are available for manual download and in podcast format through the iTunes Music Store (search for "Life of a Law Student"). This semester I have recruited some additional students to come on board. This way we can expand to other law schools and to undergraduate law / political science courses.

Here is the site, and I am still looking for students to help. Additionally, if you have technology skills (this is Slashdot after all), I need volunteers as we revamp our back-end software and deal with an influx of new material.

Contact me if you are interested in being a part of this.

- Neil Wehneman

P.S. For those who are wondering if my "re-lectures" are credible, I scored a 3.77 GPA last semester. Although I don't get my class rank for a few more days, I've been told by the administration that this should land me in the top 10% of the class.

This is a shameless plug, but it's on-topic.

I've been recreating my law school lectures at the University of Cincinnati (where I am a first-year student focusing on copyright and technology law). Instead of recording the raw lecture audio, and dealing with the copyright and privacy concerns, I've been taking detailed notes, adding my own analysis, and capturing new creative expression. (Yes there are still some copyright issues, but my lawyer and I are in agreement that what I am doing does fall under Fair Use.) This new creative expression is then placed under CC-Attribution and the GNU FDL so others can do new and innovative things with it.

I recorded roughly one 15-20 minute episode per lecture, with about 40 lectures in each of my four substantive classes.

My episodes are available for manual download and in podcast format through the iTunes Music Store (search for "Life of a Law Student"). This semester I have recruited some additional students to come on board. This way we can expand to other law schools and to undergraduate law / political science courses.

Here is the site, and I am still looking for students to help. Additionally, if you have technology skills (this is Slashdot after all), I need volunteers as we revamp our back-end software and deal with an influx of new material.

Contact me if you are interested in being a part of this.

- Neil Wehneman

P.S. For those who are wondering if my "re-lectures" are credible, I scored a 3.77 GPA last semester. Although I don't get my class rank for a few more days, I've been told by the administration that this should land me in the top 10% of the class.

You know the drill: IANAL, but I am a law student. Also, I view EULAs to be legal abominations that should not be enforced by state or federal courts for a number of policy reasons.

reselling Windows is a legal right regardless of the contents of the EULA

No. Reselling Windows is explicitly a legal right regardless of the contents of the EULA in those jurisdictions that have ruled so. A federal district court decision is binding only in that district. A district may be anywhere from a fourth to a whole of a state. California and Texas both have four districts, so based solely on your referenced decisions this behavior is explicilty allowed, as a matter of law, only in those parts of those states.

And even then, it's not a given. I'd have to read the opinions (don't have time now), but if the judges actually relied on federal law (copyright right of first sale) as opposed to sitting in diversity and applying state contract law (which EULAs tend to fall under), then it would be binding. If the courts relied on state contract law, then the decision isn't even binding on those state courts that fall within the district. It does, however, remain persuasive ("persuasive" being a term of art.) Also, sister districts within a state tend to look at each other as very persuasive.

As a quick refresher, federal district court decisions relying on federal law are binding on state and federal courts in those same districts. Federal circuit courts relying on federal law are binding on state and federal courts in those same circuits (which cover multiple states). Federal supreme court decisions relying on federal law are binding on state and federal courts throughout the nation. If any federal court sits in diversity and relies on state law, then the decision is only persuasive, and is less persuasive outside of the federal court's jurisdiction.

- Neil Wehneman

You are partially incorrect. There is minimal due process, but that due process is lacking significantly. Specifically, your rights may be determined by a "properly authorized" military tribunal, with relaxed rules of evidence.

The issue of rights of enemy combatants was litigated in Hamdi v. Rumsfeld . You can find my discussion of that case, based upon my law school lecture, at this location.

  - Neil Wehneman

To your first set of points, I agree with you completely and believe that reality cuts strongly in favor of not enforcing EULAs. Unfortunately the court in ProCD and some others cases did not see it that way.

As to your child clicking through for you, as I mentioned elsewhere in this thread, the copyright holder's most likely legal argument is that your child had agency and was able to bind you. I believe in that situation the fact that the child is a minor is irrelevant.

I am not aware of any caselaw that deals with this specific question, however.

  - Neil Wehneman

You know the drill: IANAL, but I am a law student.

As to your million dollar example the EULA would almost certainly state that modification is not allowed, and by modifying the EULA you are actually making a new offer. Since the copyright holder has never agreed to that offer (by conduct or otherwise) you would be in violation of copyright as you never accepted the holder's only offer of license.

As to you switching the buttons, you would not be acting in good faith, would not have accepted the license, and would be breaking copyright.

As to your niece, it could be argued that she has some form of agency and as such would bind you to the contract.

Just some quick thoughts, and I'd like to reiterate that I believe that EULAs should not be enforced by courts for several reasons I have articulated by reference elsewhere in this thread.

  - Neil Wehneman

You know the drill: IANAL, but I am a law student.

I agree that enforcement of EULAs are a bad idea legally. However, I'm going to play devil's advocate here.

If you had a valid "default" license to the copyrighted work, then Section 117 of the Copyright Act would apply. That valid "default" license would come with the implied contract that accompanied the sale of the software. For example, I buy a CD without additional terms, and I can do whatever the Copyright Act says I can do with that CD.

However, when a copyright holder attaches terms to the sale (through the EULA that is referenced and made known before the sale) then they are not selling a regular "default" license with the rights of Section 117 (and the rest of the Copyright Act for that matter). Instead they are selling a stripped down license that includes whatever rights they choose to offer you in the EULA. By not returning the software, you are accepting that offer through specific action (ie not returning it).

Again, this is not the perspective I believe the law should take (for a number of policy reasons articulated in my ProCD analysis). It is, however, the perspective some courts have taken.

  - Neil Wehneman

IANAL. However, I am a law student.

To respond to your post: actually depending on your jurisdiction, it may be a binding contract. One of the keys is that acceptance of an offer to contract may be manifested by conduct. Some courts have recognized that conduct as running the software and/or failing to return it. However, the EULA is still vulnerable to the doctrine of unconscionability, among other reasons for a court refusing to enforce a contract.

Perhaps the seminal case on the subject of EULAs is the 7th Circuit Court of Appeals decision ProCD v. Zeidenberg , from 1996. I dissect that case (and my strong opposition to it), in this episode of my podcast.

Courts have not been consistent with their treatment of EULAs, so what the law is will vary based upon where a case is brought. At the tail end of the ProCD episode I outline some of the ways we can legally fix the damage caused by EULAs.

- Neil Wehneman

IANAL. However, I am a law student.

To respond to your post: actually depending on your jurisdiction, it may be a binding contract. One of the keys is that acceptance of an offer to contract may be manifested by conduct. Some courts have recognized that conduct as running the software and/or failing to return it. However, the EULA is still vulnerable to the doctrine of unconscionability, among other reasons for a court refusing to enforce a contract.

Perhaps the seminal case on the subject of EULAs is the 7th Circuit Court of Appeals decision ProCD v. Zeidenberg , from 1996. I dissect that case (and my strong opposition to it), in this episode of my podcast.

Courts have not been consistent with their treatment of EULAs, so what the law is will vary based upon where a case is brought. At the tail end of the ProCD episode I outline some of the ways we can legally fix the damage caused by EULAs.

- Neil Wehneman