Slashdot Mirror

The legal status of shrink-wrap licenses in the US is somewhat unclear. At particular issue is the difference in opinion between the courts in Klocek v. Gateway and Brower v. Gateway. Both cases involved a shrink-wrapped license document provided by the online vendor of a computer system. The terms of the shrink-wrapped license were not provided at the time of purchase, but were rather included with the shipped product as a printed document. The license required the customer to return the product within a limited time frame if the license was not agreed to. In Brower, the Supreme Court of New York ruled that the terms of the shrink-wrapped license document were enforceable because the customer's assent was evident by his failure to return the merchandise within the 30 days specified by the document. The U.S. District Court of Kansas in Klocek ruled that the contract of sale was complete at the time of the transaction, and the additional shipped terms contained in a document similar to that in Brower did not constitute a contract, because the customer never agreed to them when the contract of sale was completed.

The Internet Archive did not move to dismiss copyright infringement claims defendant asserted arising out of its copying activities, which will also go forward.

She's obviously a bit of a loon, though - her 'contract' stipulates a fee of $5000 per page for copying, with a $50,000 penalty per page plus another $250,000 if you breach this alleged contract.

Perhaps the hospitals in Colorado have been closed, and all the residents thrown on the streets....

She did. She sent them a removal request and a bill for $100,000 for violating her "contract". Archive.org actually sued her instead of the other way around. http://www.phillipsnizer.com/library/cases/lib_cas e456.cfm

She filed pro se.

http://www.phillipsnizer.com/library/cases/lib_cas e456.cfm

Are Here and her site in question is here.

Somewhat stupidly she has an 825KB JPEG at the top of the page, it seems as though she isn't too bright and has used 100% quality and is simply resizing it to a lower res in the browser. (actual image size is 2880x659, she's resizing it in the html to 1032x208)

Plus, i've seen better things than that site in my toilet after a particularly spicy dinner.

I think this is a case of somebody who is totally ignorant of pretty much everything internet wise, the lack of knowledge put into the site design, images etc. Indicates such.

It appears her site is at http://www.profane-justice.org/

Check out this article here: http://www.phillipsnizer.com/library/cases/lib_cas e456.cfm

According to this, she requested that the site be removed from the Archive in December, 2005, and they complied. They're actually countersuing her. They moved to have her claims dropped for various reasons, but the court chose to only drop the ones related to conversion, civil theft and the RICO claims. The issue of breach of contract and copyright infringement still apply.

I think it's absolutely ridiculous that this can go forward, especially when there are two established methods to stop the Archive's activity: The opt-out, which will remove history, and robots.txt (which she didn't use and appears to still not use), which will prevent that spider from ever archiving her site again.

Her site shows up in Google, I wonder why she hasn't sued them? Could it be that she likes the exposure of the big search engine, but doesn't want any history of her site archived by the Internet Archive?

She did request that they did, and they did so. Then she asked them for $100,000 in compensation for copying in the first place. You can read more here.

> 2) No porn sites
> 3) No warez sites
    [...deletia...]
> Stop complaining that windows cannot account for your depraved porn, warez and teen sex chat habits. That is not what it is for.

It must be nice to be as perfect as you. You never make typos like "wwwpainewebber.com" (see http://www.phillipsnizer.com/library/cases/lib_cas e108.cfm) or "hotmial.com". I suppose that's because you type in the IP address rather than the URL, in order to protect yourself against against "pharming", when your ISP's Windows-based DNS server gets its cache poisoned. Even properly typing http://slashdot.org/ would take you to a drive-by-download site in that situation.

Oh yeah, did I mention that most mainstream commercial websites use 3rd parties to serve banner ads, and those 3rd parties can be infected? See http://www.theregister.co.uk/2004/11/21/register_a dserver_attack/ for an example. For that matter, one of NIMDA's attack vectors consisted of compromising webpages generated by a Microsoft product, and attaching attack code to those webpages.

It isn't slander if I lie about someone and defame their family ON THE INTERNET.

Making phone calls, viewing websites, Instant messaging, and emailing your friends all day at work are not all the same thing anymore. Not when a business can be held liable for their employees actions. Case in point the Article here: http://www.phillipsnizer.com/library/cases/lib_cas e417.cfm I have every right to protect my business from this type of thing even if it means limiting what my employee's do online. If the employee doesn't see it my way, then move on, I'm sure I will find a more mature adult out there that wants your job. BTW I never have seen a job that allowed an employee free access to call anyone they felt like at any time they wanted too. Give me a break people. You are at work too work, not to make phone calls to all your girlfriends / boyfriends. If they can stop the frivolous law suits against businesses that try to be nice to their employees then I say it's fine to go online, as long as what your doing online is legal. But don't hold a grudge against a employer because you can't get to your favorite porn site. Your employer has more to worry about than you "getting off". Give me a break people.

We are in the times in which the people have to protect each other. And we all are the people, and the ones that are against the people are the powerful that will not take into consideration peoples rights.

What NSA is doing is an abuse, but the people that communicate through the internet are very vulnerable to abuse, not only by the governments, but also by mafias and groups of a diversity of allied criminals, some of them acting with white gloves.

Internet is today the field for criminal activities. In the last few days I have been receiving an enormous amount of emails which were fake from ebay, pay pal, the Netherlands Lotto etc... trying to get from me my password to this accounts. And some of them looked so good that could be mistaken by the real thing, but users of the internet that engage in criminal activities disguise themselves in anonymity that internet provides.

Our communications throuh the internet are surveiled since time immemorial by NSA, and a wealth of information about us can be collected and may be collected. And this is a great danger to the people, and no law protects us these days.

What about an internet between authenticated and identified users... so that the majority of internet users that don't mind to be identified because they live in a free country and at the same time, not being engaged in fraudulent activity or criminal activity don't mind to inter-communicate with other identified and authenticated members of the net. Why should anyone want to be anonymous if not engaged in criminal activity?

This is my point. We should suport the institutions, companies and private people that support the target to bring privacy and security within identified users when using the internet to communicate This is the case of a company called Amteus.

Now, once in communication with an identified user, which is properly authenticated, then you provide privacy, so... unless you want to make it public, nobody can access your communication because it is properly secured and encrypted. i.e. it travels in a closed envelope and it is unlawful to open it, and it is being between identified and authenticated users that trust each other. Otherwise, not only the governments with their NSAs involved in their own practices will snoop on us, but gangs of gangsters will easily intercept our communications, phishing like the email I have received will only be the beginning. I am starting a website to support this kind of approach.

This requires legislation, but also requires technology. Like the one developed by Amteus. But there are many other.

I hope that the people with vision that have given to the internet a view that will promote freedom and cleanliness, like John Perry Barlow will help this company to succeed in a very honorable project.

It is very distressing these days what is going on with the Internet. Hopefully companies like Amteus Plc that are bringing a technology to overcome this problem of snooping, spam, phishing etc.. will survive attacks from those that hide behind anonimity.

Ramon Leonato

The enforceability of an EULA depends on several factors, one of them being the court that the case is heard in. Most courts that have addressed the validity of the shrinkwrap license have found them to be invalid, characterizing them as contracts of adhesion, unconscionable, and/or unacceptable pursuant to the U.C.C. Step-Saver (939 F.2d 91)--see, for instance, Vault Corp. v. Quaid Software Ltd. (at harvard.edu) and Rich, Mass Market Software and the Shrinkwrap License (23 Colo. Law 1321.17). A minority of courts have determined that the shrinkwrap license is valid and enforceable: see ProCD, Inc. v. Zeidenberg (at findlaw.com), Microsoft v. Harmony Computers (846 F. Supp. 208, 212, E.D.N.Y. 1994), Novell v. Network Trade Center (at harvard.edu), and Arizona Cartridge Remanufacturers Association Inc. v. Lexmark International Inc. may have some bearing as well.

The 7th Circuit and 8th Circuit subscribe to the "license" and "not sold" arguments, while most other circuits do not. In addition, the contracts' enforceability depends on whether the state has passed Uniform Computer Information Transactions Act (UCITA) or Anti-UCITA (UCITA Bomb Shelter) laws. In Anti-UCITA states, the Uniform Commercial Code (UCC) has been amended to either specifically define software as a good (thus making it fall under the UCC), or to disallow contracts which specify that the terms of contract are subject to the laws of a state that's passed UCITA.

Recently, publishers have begun to encrypt their software packages to make it impossible for a user to install the software without agreeing to the license or violating the Digital Millennium Copyright Act (DMCA) and foreign counterparts.

The DMCA specifically provides for reverse engineering of software for interoperability purposes, so there was some controversy as to whether software license clauses which restrict this are enforceable. The case of Blizzard v. BnetD (at eff.org) is an illustration of this controversy."

Earlier they went after CyberNet Ventures, the people behind the Adult Check age-verification service.

They seem to be extremely serious about protecting their copyrights (as they interpret them). Google is just the latest target.

...before, at least for the IT field. The rulings have basically said that a year-long hiatus in the IT field might as well be infinitely long, due to the pacing of the business. Another ruling (which I cannot find now) basically said that if an employer wants to enforce a non-compete ruling, then they needed to be willing to compensate the employee for the duration. It's important for businesses to realize that non-competes are not a form of punishment for employees who decide to leave, but rather a means to keep trade secrets or competetive edges for a short amount of time.

There have been several rulings on this, the most significant being the Earthweb v Schlack case a few years ago (1999). In California, it's also important to recognize that non-compete agreements are all but illegal, which is probably why Google is interested in bringing up the suit there.

Of course, these rulings do not apply throughout the US yet, because none of the suits have had enough merit to even make it to the Supreme Court, and have been overturned at the local, state or circuit level. (None of the employers have had the wherewithal to take the suits all the way to the top, most likely for fear of a non-favorable ruling).

Personally, I think non-competes are a sign of what employers really think of their employees. If employees are thought of as the most valuable asset the company has, and are treated as such, there is no need for non-compete agreements. My current employer, which is a very succesful, publicly traded company does not require non-compete agreements for the majority of employees. But they treat us so well that no one leaves to start a competing firm or to join the competition. We have very low turnover, and the turnover we do have is generally people who leave to start their own companies in unrelated fields.

• Non-competes have to be reasonable to be enforceable. Reasonableness is determined by the courts based on the specific facts in each case. Primary attention is given by the courts to:
• 
  the geographic scope of the non-compete,
  the duration of the non-compete, and
  the type of activity the ex-employee is precluded from engaging in.

Here's another example.

• In determining whether a non-competition agreement is valid, courts assess the following questions:
• 
  
  1. Does the agreement protect a legitimate interest of the employer?
  
  2. Is the agreement too restrictive in terms of its duration? Is the agreement limited to the amount of time necessary to reasonably protect the employer?
  
  3. Is the agreement too restrictive in terms of the geographic boundaries specified? Is the agreement limited to the geographic areas necessary to reasonably protect the employer?
  
  4. Is the agreement supported by good consideration? In other words, was the agreement entered into upon the initial employment of the employee or upon advancement of the employee with the employer?

Catch the term "Reasonably"? It's there on purpose.

Instead of the opinions of third parties, let's see what the courts have said about it.

Earthweb Inc. v. Schlack

The courts held that...

• [T]he one-year duration of EarthWeb's restrictive covenant is too long given the dynamic nature of this industry, its lack of geographic borders, and Schlack's former cutting-edge position with EarthWeb where his success depended on keeping abreast of daily changes in content on the Internet.

In Keener v. Convergys(Google for it, I'm tired of linking pages that you probably won't read anyway)
the court threw out a non-compete for being too restrictive.

A non-compete must be REASONABLE for a court to enforce it. The definition of that word may be subject to the interpretatio

It seems like there are a number of lawyers who have not yet figured out that the first amendment does in fact apply on the internet, as we can see by these examples. Although this is becoming a little less common, many business owners/managers have tried to have critical websites shut down for little reason other than they don't like what is being said.

Well, you can read up pretty easily by just googling on "Harlan Ellison copyright binaries". The short form is that Ellison discovered some of his works were being posted to an alt.binaries group and got ticked off in his own uniquely Ellisonian ranting, raving, frothing-at-the-mouth way. AOL requested and received a summary judgment because, "Hey, we're complying with the DMCA, therefore we're not liable."

This appeal decision is basically a higher court saying, "Oh, no you're not in full compliance...not only did you change the email address without telling anyone, someone had already told you about it when your email address worked. Let's send this through that lower court one more time."

IANAL and all that, of course.

On April 24, 2000, the writer Harlan Ellison filed suit against an individual named Stephen Robertson, a Usenet company named RemarQ, and AOL over four of Harlan Ellison's stories posted on Usenet by Stephen Robertson.

If I understand it correctly, AOL was sued only because that happened to be the service provider of the two who tracked down the identity of Stephen Robertson.

Read about it here

Here's a 2002 story on zdnet about it

The following is from this article:

In April, 2000, Harlan Ellison was told that an individual using the screen name and e-mail address shaker@tco.net was scanning stories by him and other writers and posting them to a newsgroup called alt.binaries.e-book. (The designation alt.binaries means that it is a newsgroup where files of material are exchanged; there is relatively little discussion among the participants.) John Miller (former SFWA(R) secretary) and Susan Parris assisted in tracking the works which were copied to the newsgroup, which they received as part of the subscription to America Online. Four of Harlans stories, all apparently scanned from copies of the Nebula Awards(R) anthologies, were identified as copied by Shaker.

We learned that Shaker was actually Stephen Robertson, a 40-year-old living with his parents in Red Bluff, California. Although Robertsons ISP was Tehama County Online, TCO outsourced its newsgroup services to RemarQ Communties, Inc. TCO cooperated by blocking Shakers account immediately upon notice of the infringing activities and revealing the services provided by RemarQ and was therefore not included in the lawsuit which followed.

The original complaint was filed on April 24, 2000. Stephen Robertson settled with Harlan almost immediately and is no longer a part of the case except for evidence he may have to provide during discovery and trial. The complaint was amended in late May and the Court permitted the filing and service of a second amended complaint in October.

We faced a series of procedural challenges to the complaint prior to answer by either AOL or RemarQ and its new parent company Critical Path, but we have prevailed and are now out of the pleading stage and facing the discovery phase.

AOLs original motion for dismissal or summary judgment on the first amended complaint was heard in July, and resulted in a temporary partial victory for AOL. However, the effect of this early ruling in favor of summary judgment on the copyright allegations has been essentially overruled by the Courts more recent ruling on AOLs motion to dismiss, or in the alternative for a more definite statement, the second amended complaint, which was heard in January and resolved in Harlans favor. AOLs answer to the second amended complaint was due on February 5, 2001.

RemarQ/Critical paths original motion to dismiss or in the alternative for summary judgment on the first amended complaint was scheduled for hearing and moved several times before being declared moot by the Court when granting leave to plaintiff to file the second amended complaint at the end of October. [Note: RemarQ provides its Usenet newsgroup services under the name SuperNews; SuperNews remains one of the prime origination news servers for illegal material posted to alt.binaries.e-book.] RemarQ/Critical Paths motion to dismiss or in the alternative for summary judgment on the second amended complaint was denied by the Court in January. RemarQ/Critical Path answered the second amended complaint on January 26, 2001.

In its order of January 12, 2001, the Court demonstrates a better, but not complete, understanding of the DMCA than evidenced in July. What is important about this ruling is that it sets ou

Recently copyright law was changed to cover databases. This means a database can be copyrighted, even though the contents isn't (Doesn't make sense to me either). All you have to do is claim your collection of prices is a database.

The spam might have an AOL address in the From: header, but that has absolutely nothing to do with the actual sender.

Sorry... Following up my own comment...
This earlier decision said:

"If the article is altered or edited in a different matter, or if a defamatory article is placed in a new form (such as the first posting of a previous print-only publication on the Internet), a new statute of limitations period will begin to commence on the date of such republication. Said the court:

A republication will occur when the defamatory article is placed in a new form (paperback as opposed to hardcover) or edited in a different manner."

I am sick and tired I am of the Libertarian bull**** that people like you spew. If you want to live in a cabin in the woods, hating the government, and erecting booby-traps, cameras, and fences to keep people out, go for it. But don't give the rest of us a bunch of crap because we don't want to spend our lives erecting barriers to the rest of the world.

Re a pool, there is something reasonable--you put up a stinkin fence with cameras. We have laws if they encrouch on your property, you get them for trespassing, disorderly conduct, etc.

Re the lawn mower, duh. Get a lock and key.

The question is not whether I can find some way to defend my property. The question is whether or not we make it illegal for people to use my property without my permission.

It's silly to expect when you hand out party invitations in a public manner (and yes, it's public--network traffic is considered public) that there won't be a party crasher.

You are simply wrong as you can see from that link. A mail server is private property.

Use SSL authentication. Procmail/filter out. Use several addresses. Block multiple connections. Yes, when you put up a mail server, it's going to get connected to. The internet is not yours. It's PUBLIC. You ACCEPTED that when you had the choice to or not. You further had the choice whether to authenticate or use VPN. Did you? No.

Quit trying to impress everyone with your knowledge about how to construct a mail server through which no one can send mail. I'm unimpressed. I've consulted with a company that sells an expensive spam blocking system and probably know more effectively blocking spam than you ever will.

A mail server that cannot be accessed by normal people who e-mail through mass-market ISPs is as good as worthless.

Yes, when you put up a mail server, it's going to get connected to. The internet is not yours. It's PUBLIC.

The Internet is public but my mail server is PRIVATE! The road leading to your house is public, but that doesn't mean that I have a right to drive a car off of that public road and onto your private property.

If it's truly for your friends and specific organizations, filter.

If I put up a web page that says "e-mail me with comments about this web page", I don't have a list of who is going to e-mail me, but I have specifically limited the invitation to those who want to comment on the web page.

As to my e-mail filtering, it's DAMNED good. For every spam that gets through, I probably block 50 or more.

But I realize that the average person does not run their own mail server, does not know how to run one, nor should they have to learn how. I also know that mail filtering that works for me would never work for a wide audience at an ISP (I block all of Brazil, for instance).

"Face it, by installing a telephone, you are consenting to receive obscene phone calls at 3:00AM."

Yep.

Nope. Obscene, harassing phone calls (unlike their e-mail equivalents), are illegal.

"Face it, by putting up a pool, you are consenting to let random strangers hop in and piss in it."

No. I don't really see the similarity at all actually.

Then let me spell it out in simpler terms:

My (hypothetical) pool is my private property. I pay for the equipment, the maintenance, and the recurring costs (chemicals, water, electricity, etc.) I have put it there for my use and the use of my invited guests.

My mail server is my private property. I pay for the equipment, the maintenance, and the recurring costs (bandwidth, electricity, etc.) I have put it there for my use and the use of my invited guests.

Storing your lawn mower outdoors is not the same as storing it in front of a sign which says "free lawn mower rental"

I have not put up a public announcement stating that anyone who wishes may:

a. Use my lawn mower for free.
b. Jump in my pool.
c. Send me advertisements via e-mail.

Therefore, I don't want to find random people using my lawn mower, swimming in my pool, or sending me random ads in my e-mail. Pretty simple to grasp, eh?

If you are going to argue that any e-mail server is a public facility, stop now. You are simply wrong and it has been proven over and over in court cases.

RAM copies being covered by copyright is silly but there are legal precedents (MAI vs Peak Computer is one) where that is the case.

It should be fair use, because making a copy is NECESSARY to even USE the product, and one is expected to be allowed to use a copyrighted work that one was bought. That's logical, but not in all cases what the courts have decided.

There are also legal precedents where fair use is overridden by the DMCA (the DeCSS case in the Southern District of New York)

Of course it's unenforceable. But until I see the Journal, or any other publisher, going after linkers who don't pay, I'm not gonna complain. Heck, I probably won't say a word even then, 'cause the courts will slap down that for me.

I move to consider this nothing more than a step toward the voluntary payment system for Internet content that some have advocated.

Summarised here

Seems a slightly odd ruling. More like the judge didn't really want to get involved in the domain hijacking dispute.