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Richard Stallman on UCITA
Andy Tai writes "In this LinuxToday article, Richard Stallman writes about why the Free Software community must resist UCITA. Worth a read." UCITA, you'll remember, is the legislation being pushed in state governments which would make "click-wrap" license agreements enforceable, allow software manufacturers to ban reverse engineering and criticism of their software, etc.
RMS has made a major contribution to the human race and will be remembered long after you're dead, chickenhead. What have you contributed to mankind lately? You can't even criticize
You are just a sick fucker. Crawl back in your hole.
I know a lot of you look up to Richard Stallman, he seems like a great guy, champion of the community and all that. But he's not; in fact his antics are hurting us, and our cause more then anything else. We need to recognize RMS for what he is. A money grubbing hippy, who will happily whore himself for money to anyone with more then $20.
Listen to ESRs criticisms of Stallman, who said about the man "shut up and show me the code." And he's right. With all his pompous punditry, RMS has done hardly any real coding for the community. Unlike people like Linus and ESR, who have made real code contributions. RMS hasn't written anything remotely useful in over a decade!
Of course, I agree with him on the issue of the UCITA. But I think we, as a community need to stop putting him on this pedestal. He is no one, other then a game player, who's grabbed hold of the Open Source movement to make his fortune.
Who moderated that as 'funny'?
RMS has made a major contribution to the human race
Major contibution my ass. A text editor and a complier is not that big deal. You need to crawl out of your hole and read someone else besides RMS and Katz.
You know, that's not how the poem goes.
And even so, just quoting it does not an argument make. In fact, it dosn't even make sense in this argument whatsoever. The UCITA is going after everyone who uses a computer. I use a computer as do you. so please, shut up.
open source has absolutely no future in the corporate world. Do you think a corporation wants their ideas accessable to all competitors????
if source is givin with software, it should be double in cost (free speech, not free beer).
If software is givin out for free, it should be closed sourced with advertising (some kind of revenue model is needed)
just my $0.69
And you proved your ignorance with your first post.
Think what you want, but when the corporations and the government, and you aren't allowed to think anything but that which is sanctioned, then you'll see where you are wrong. Until then, it would be hopeless to try to talk sense into you. Therefore, I won't.
(JustShootMe, posting anonymously, because I feel like it.)
Keep your threshold at 1 or 2. Simple as that. You won't see this kind of stuff.
Yeah, sick, libel, blah blah blah... It was still funny (because it was FICTION!)
You're a manager at a large corporation. You employ thousands of people, some very experienced, others that you're just beginning to train. You send your team of lawyers to FooSoft's headquarters and negotiate a site-license that doesn't let FooSoft rape you. Meanwhile, consumers are screwed.
Remind your fellow Canadians how stupid American lawmakers can be, and that this kind of garbage can move north.
Wow. I shudder to think that this guy is walking
around in reality somewhere.
FBI is prolly onto him though. Do enough sick
shit on the internet and one's bound to get someones
attention. This guy don't seem especially bright either...
Where would we be without Rosa Parks? Black people would still be drinking from separate fountains.
Somehow I have my doubts of this.
Thank you Some days it seems like I slave away at the keyboard for days at a time for nothing. That no one appreciates my work at all. Thank you BoredAtWork, you've convinced me not to take my own life.
:)
Or something like that. Anyway, switch ESR with RMS and then RMS with ESR and you'll get a schizophrenic essay from someone ranting incoherently about Eric Raymond. But if you switch the names at the same time you'll get something closer to what I really think
what's realy so sad, is they they couldn't even write their own little stupid story. I mean, to be unable to make up a stupid story of your own. oh hummm, somewhere out there, god is crying, and it's all because of this luser troll refuses to die.
he simply breaths too much, yes that is his problem, and he needs to do less of that.
I consider what I had to say to be important. And I will be the judge of that. And I'll leave it to the moderators to either affirm or correct me on that decision.
In other words, if you get pissed off, it's your problem, deal with it.
Well, first of all, I'm not the above poster. The fact that some lamer is trying to take 'credit' for my post as a troll is proof of the rapidly declining intelligence level on slashdot
RMS has done MORE real coding than ANYONE in the free software movement. Emacs, gcc, and many, many other small utilities come to mind. So he's not released a major package in a few years. He could retire right now, and go down in history as one of the greatest programmers ever.
Emacs, GCC, Emacs GCC, yippy. One is a bloated, useless pile of undecipherable LISP, and the other was a toy compiler until Cygnus took over. Yes, GCC, as it is, is important to the free software world. But RMS did not create it as it is Cygnus did. And that only goes to show that ESR is right, without some embrace of corporate money, Open Source is worthless.
Emacs may be a useful text editor, but it is just that, a text editor. Nothing thousands of people haven't coded before. Of course Emacs has a ton of LISP crap, as well, but since no one knows LISP (for very good reasons) We'll never know how useful it could really be
fuck off.
have you actually read some of these liscences, they already say that the maker of the software cannot be sued for the software not preforming its function or causing other damage.
Text editor and compiler? RMS's efforts resulted in
near *everything* in Linux except for the kernel.
Do you even run Linux, or are you just talking
out of your ass?
Wow, you can be civil when you don't know who you're responding to...
Signed, a karma whore
I'm the same AC who told you to shut up before.
Anyway, you can get as righteous as you want, and you can call people ignorant all you want.
However you cannot change the fact that software for medical use has to be approved by the FDA, in a process that takes years. And the maker is responsible. The existence of this fact would appear to make you an idiot who doesn't know what he's talking about. So, I reiterate. Please shut up.
yeah....but those products are shit
maybe YOU should go to business school...and maybe know as much as I do.!
I say Stallman is a crackpot, and I agree with him about the ills of proprietary software and UCTIA.
Just look at his first footnote. That kind of religious flaming is the entire reason that the Open Source Movement founders chose to jettison the term "Free Software" in the first place. Stallman denounces the OSM, while the whole difference between "open source" and "free" software is amounts to two items: which term to use, and the status of the APSL.
I'm actually glad RMS refuses to acknowledge his unity of purpose with the Open Software movement; it keeps him in the background, where he can alienate fewer potential converts. You cannot convince most people by screaming doctrine at them, and we need to convince people. (Unless, of course, you like having more primitive tools and less software then people willing use proprietary software.)
How do they know people are using unregistered software? Do they track them somehow? They can't just look at the IPs of people who downloaded the program, as those people may have deleted it before their trial period was over.
Some demagogues might find this a great issue to get publicity defending the consumer, but I doubt it will get more than a ripple. There are many ways the consumer gets unrighteously ripped now (520% interest on paycheck loans, used cars sold without warranties, can't even buy a car on the internet, etc), so why should we expect something like UCITA that the attorneys general have already signed off on to get derailed?
Thank you for your participation in the discussion. For more information you should refer to http://www.emacs.org and http://www.gnu.org.
You and Stallman aren't crackpots simply for being passionate about a cause. You're crackpots because each of you seems to be unable to speak publicly without working in some comment about your pet cause. Stallman couldn't complete the essay on the UCITA without dropping in a few sentences advocating 'Free Software' over 'Open Source', and you can't seem to post to slashdot without mentioning your dispute with Mattel.
Yeah, if I were running a corporation's MIS department, the last thing I would want is for my competitors to know how our computers access their filesystem, or how our word processors and web browsers work. My employer would lose his competitive advantage and I would get layed off!
But by buying Microsoft products, I am safe from that, because my competitor (nor myself) will never know how it all works. Now all I have to do is figure out a way to keep them from using the same products. When I figure that out, I'll really be on the road to success!
Well, the obvious solution is just to get the entire Internet population of China using it. They'll get millions of notices, and good luck suing anybody....
Well the US can pass silly laws, but they gotta convince Europe to play ball, and I doubt it. Even if they said ok tomorrow, they could stretch out implementation for 35 years. Hell, look at GATT and agricultural subsidies. slow or what.
Dont get scared. I am from BC too, and there is nooo way I will put up with orgs taking away my right to think and share information. I cant believe that a reason to stir a debate as this even exists. People, dont back down. A bandwidth cap/content filter on the mind is a joke. Canadians, the charter applies, and the Supreme Court is still on our side, I think. Its nice to see that some people realize something is wrong here. Phew.. Maybe I should get an account.
"He hates me, but I think he's a good guy."
Cool, why?
pcp.lanl.gov/MEMES.html
RMS has made a major contribution to the human race and will be remembered
I think you'll find ~95% of the human race doesn't have a clue who Richard Stallman is - or give a damn.
Go on. Walk down a busy city street and ask passers-by if they know who Richard Stallman is.
I think you'll find he's not made a major contribution to the human race at all...
but you can lose it
even if the supposed free market actually worked as free market zealots claim, there is still a long time period when the situation is NOT GOOD. why not prevent that from even having to occur? should people have to put up with corporations violating their rights AT ALL? in your free market system the corporation gets away with it until it becomes unbearable and the people respond. free markets might sound nice on paper but in my opinion they do not correct problems fast enough AND they create way too many other problems. I equate the free market ideals with giving a child everything it wants. eventually the kid gets spoiled and starts acting like a brat, and when it finally grows up it's all fucked up in the head and acts like an asshole to everyone. free markets have the same effect on civilization.
By "advocates" you don't mean the actual players putting corporate products into the market, right? Some "advocates" talk out of whatever side of their mouth is convenient for increasing sales and profits. There's nothing they'd like better than a totally un-free market dominated by themselves, selling to addicted consumers totally unaware of anything that might make them hesitate to buy, like labels with real and complete info.
Usual money machine behaviour re markets is maximal exploitation of existing market inefficiencies, and creation of artificial inefficiencies (e.g., DVD region control) to exploit if they don't already exist.
Then of course calling the exploitation a mechanism of market evolution ensuring ultimate efficiency, to make it seem they're only playing a benevolent part in a beneficial process.
I won't do business with anyone who thinks they have to fool me to sell to me, if I can help it. And I need help, the way labeling laws are going. What I don't need is decisions made for me that are rightfully only mine to make, such as what goes into my body and (deciding with the other parent) my childrens' bodies. I can enforce that right of decision in a hospital, why the hell not at the grocery store??!!
The attack on our fundamental right make informed decisions for ourselves may be the most dangerous side effect of GM crops.
Next stage: I just scanned the license paragraphs for the response codes to type back. I didn't read for content. What license?
Next stage: F*ck it. I don't need this.
Newsflash: RMS is not anti-commercilal-software, he is for free software which he himself SELLS commercially. (OK which FSF sells?) The poing is, he is all for selling free software. He is not even for giving away non-free software.
Bob Clip - friend of A Nony Mouse
... does this mean you have also completely distorted the poem?
is if that law could stop you from campaigning against it in future. If the Internet becomes run by software using UCITA licenses, there could be a condition added to those licenses requiring you to refrain from using the software for the purposes of invalidating its license. This would stop you putting a web page up saying how crap the law was.
> telnet -port=25 ***.***.***
220-***.***.*** SMTP Service ready.
220-The use of this SMTP service is conditioned on acceptance of a License
220-Agreement. To use this service you must agree to:
220-. Pay $1000 per unsolicited commercial e-mail (SPAM) transmitted
220-. Pay $1000 per e-mail address transferred or sold to another spammer
220-. Release all users of this site from shrinkwrap/clickwrap license agreement
220-. Hold this agreement in confidence, or pay a $1M penalty per disclosure.
220-This license agreement enforcable under the terms of the UCITA.
220-So don't try bitching about "I didn't read the agreement" you weenie.
220-If you do not agree to these terms, type "QUIT".
220 To agree to these terms and continue this transaction, type "HELO" or "EHLO"
HELO gates.microsoft.com
250 ***.***.*** ; Hello gates.microsoft.com, you can send the money now.
sure esr is a gun-lovin weirdo (include gun control flame war here), and a lot of people don't care for his rhetoric, including myself, however he HAS done more coding than most people are aware or give him credit for. stuff he has done (off the top of my head): maintained/architected ncurses and fetchmail, worked on various emacs/elisp projects, maintains a large variety of FAQS/HOWTOS/DOCS, maintained metalab.unc.edu ftp site (formerly sunsite), currently doing some project with python (software index?). i'm sure there is a bunch of stuff i don't know about or don't remember too. basically he's done more than most free software authors/advocates (although not as much as RMS :)
No, I agree, I was just being silly.
Don't get too comfortable. I doubt a photocopied UCITA (CUCITA?) will be implemented, but monied interests in the USA have always had a curiously undemocratic influence over Canadian legislation.
I think you'll find ~95% of the human race doesn't have a clue who Richard Stallman is - or give a damn.
Go on. Walk down a busy city street and ask passers-by if they know who Richard Stallman is.
I think you'll find he's not made a major contribution to the human race at all...
ermm.. not to comment on the actual significance of his contribution, but what relevance does the number of people who've heard of him have? You think most people will be able to name early pioneers in computing or genetics or the printing press for that matter? His achievements are eitehr significant or not (presumably you think not), either way the number of people who know of them is irrelevant.
Here the dutch used to see movies about the land of be-free.
Does anyone remember the era of George Washington?
Did it occur to you the US are in a continuous threat of surpression?
- Not to mention Jorg Haider of Austria-
'nuff said.
"Passers by don't know RMS, therefore RMS hasn't
contributed"
Hmmm...no need to debate this any further.
Onto a more appropriate discussion:
When you close your eyes, does the world stop
until you open them?
What hapens to the mail, after you place it in
your mailbox?
What is the difference between a tree and a
rabbit?
With your logic, these are the types of questions
that are more appropriate for you. For your
sake, I hope you aren't an adult!
Arguing the merits of something as complex as
GNU software is beyond your cababilities.
Go play. Tell your mother that the internet is
tired of watching her stupid kids.
You must be illiterate. Zico never criticized Stallman's point. He simply pointed out that Stallman isn't going to have much credibility in the eyes of those outside the free software movement.
I prefer defense in depth myself. Multiple layers. Fight first in the legislature, if that fails fight in the courts.
Richard Stallman believes in freedom. As in
free pouring, not free grits.
What if one wrote a piece of software that looked of the words "I Agree" in every file in a directory and replaced them with "No Thanks" (OK - we are talking binary files here - and changing them is non-trivial - but this is a thought experiment so that's OK). You could run this on the binaries of a not-yet-installed program (you havn't agreed to any click-through license at this stage - so that's gotta be OK) - then install the program. It spews the license conditions at you - you click on "No Thanks" (it still registers your agreement to disk somewhere - even though you didn't agree). You could even run your program under something like WINE - and hack WINE to replace any button that contains the string "I Agree" with one that says "No Thanks"...that way you wouldn't be changing the binary that you are installing. This is the software equivelent of crossing out chunks of a contract you don't agree with - and then signing the amended contract. Presumably (and IANAL) that makes the contract invalid...but who cares - you are still running the software you purchased with no contract having been agreed to. What if I have my three year old son click on the "I Agree" button? He's a minor and can't be held to a contract...now I'm running the software with again, no contract having been agreed to. Now you have a copy of the software that you paid for - and can run - and which is unencumbered by any kind of click-through license/contract?!? Where is the flaw in this?
Good point. Possibly you could do this with patents: The protocol is patented, and the patent is licensed to anyone who implements the protocol in open-source code, but no one else.
Millenium Copyright act is a law, ainnit?
Obviously, interoperability is a basic requirement for just about any software. But you knew that.
Well... it IS pretty sick... but if it helps any, it's just Cult of the Dead Cow stuff, with the names changed. The original has been sitting on the web for years now, at, er, let's see here... [looks] http://www.cultdeadcow.com/cDc_files/cDc-0018.txt.
Well if you spot an American on his side of the border, pretend you don't and hope he goes away. If OTOH he sets foot on Canada, BC, or your backyard get your biggest gun and shoot him with it. Or ask to borrow his "for a second"; he's bound to be carrying one, or have one in his car, && being an American he'll never guess you don't absolutely love him, so you're quite safe doing it that way. No but seriously, get busy on some kind of genetic countermeasures that can render Americans sterile, it's our only hope. And citizen Asparfame, when I say "our" I'm mean us, as in the Human race.
Personally, I'm tempted to believe that if UCITA is enacted, the market will deal with it. I see the possibility that a commercial software company sporting a more liberal license will have a competitive advantage over the others. It may take a few casualties before consumers realize what it means for them, but once they do, UCITA could be the WORST thing that ever happened to the companies who lobbied to have it enacted in the first place.
--
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Just lurking, thanks!
RMS is anything but a money grubbing whore. The man refuses to take jobs that don't meet his ideals and refuses to take money from groups that don't meet his ideals.
RMS has done MORE real coding than ANYONE in the free software movement. Emacs, gcc, and many, many other small utilities come to mind. So he's not released a major package in a few years. He could retire right now, and go down in history as one of the greatest programmers ever. Now, ESR, as much as I agree with him sometimes, is really a black pot screaming at the kettle here. This is a man who wrote... fetchmail. He didn't single handedly create the foundations of a new operating system. He didn't start a "movement". He wrote a (actually, revised an existing) small but useful utility. And he tried to change the name of the Free Software movement to Open Source.
Anyways, RMS has NOT grabbed hold of the Open Source movement. In fact, he's not fond of the term at all.
I really have to wonder if this isn't an exceptional troll, or someone who's really clueless...
--
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Just lurking, thanks!
It's not bad because people don't read the EULAs. That's their own damn fault. It's bad because they don't have to let you read it before you buy the software, and once you open the software to read the EULA, they don't have to let you return it if you don't agree to the EULA. The law would make contracts binding even though one party hasn't been given the chance to read the contract.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
If I open a box of software, run the installation program, read the EULA that pops up and decide I don't want to agree to it, what recourse do I have? I can't return the software since it's been opened. We all saw that Microsoft refused to honor the return clause in its own EULA when people tried to return Windows. That was even before UCITA. With UCITA as law they can do it with absolute impunity. They won't even have to try to pass the buck to the OEMs.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
Read up on network effects.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
you are entitled by law to return it for a refund.
Jeez. We have to pay for a lawyer and take a company to court every time we want to return a piece of software? That'll get extremely expensive. We've already seen that simply trying to return it doesn't work, as evidenced by the unsuccessful attempts to return Windows.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
That makes a bit more sense, but I'm not sure it was even a factor with the Windows returns. Most of the people who tried to get one were rejected outright without the OEM or Microsoft even getting any information from them about when they made their purchase. UCITA will just make it harder to get a refund because you'll likely have to get a lawyer to do it.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
Clickthroughs are already enforceable (there's a long line of cases on this)
Could you cite a couple? I'd love to read up on them.
the First Amendment makes it impossible to prohibit criticism of software (there's an even longer line of cases on that).
Companies wouldn't prohibit you from criticizing the software, they would just prohibit you from benchmarking the software, thus preventing you from effectively backing up your criticism with hard numbers.
As to the poster who talked about "one-way" contracts: the problem is you need a license to use software.
The real problem here is that you don't get to read the contract until after you've bought the software and opened it, at which time it becomes unreturnable. Unless they start printing the EULA on the outside of the package, customers are going to get screwed.
The only good thing I can possibly see coming out of this is that it may have the effect of encouraging consumers to swear off commercial software from companies that try to screw their customers over. Microsoft is far from alone this time in their bad business practices, although they are going to be one of the most noticeable given their marketshare and prominence.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
Too much of the US govt and corporate America has let the courts decide much of the policy making -- they should be more pro-active rather than retro-active, though the former is not easily done as it requires being up to date and effort. In this case, at least slashdot helps us with the research side of things.
"Pinky, you've left the lens cap of your mind on again." - P&TB
"I can see my house from here!" - ST:
Parts of the UCITA that try to account for banning of reverse engineering AT THE STATE LEVEL are explicitly given by the DMCA AT THE FEDERAL LEVEL. Thus, UCITA in this regard automatically loses. State legislation cannot override federal laws or deny rights given by federal law.
In addition, click licenses are basically parts of interstate transport-- an area of judistriction that the state governments cannot control. (If you bought a CA-based program in CA as a CA resident, the state can affect you usually by sales tax, but not other way).
Some have suggested that UCITA may allow one company to introduce a new format (propriatary of course) into the next major release of the software, get it used by > 50%, then bait and switch, forcing they format as the defacto one for the entire industry, and as reverse engineering would be outlawed by UCITA, everyone else would be screwed. However, I cannot see how that would not be picked up by any monopoly watchers before it got to fruitation. And again, this relying on the inability to reverse engineer for interoperability.
However, that's only part of the issues with UCITA -- it's the loss of consumer protection that can come about if it's passed. I'd be more worried about this front than any other part of the UCITA.
"Pinky, you've left the lens cap of your mind on again." - P&TB
"I can see my house from here!" - ST:
While this doesn't excuse not including a copy of a license on the outside of the box, here's the real reason software started being shrinkwrapped:
Because software used to be sold on magnetic media, and there was a chance of software being stolen, or a disk with a virus being introduced.
*rant* this still didn't protect you from the jerks at the store who took the software home, ran the thing on a machine with no virus scanner, re-wrapped it when they came back to work, and stuck it back on the shelf. *end of rant*
And here's the reason software retailers stopped giving refunds (okay, two:)
1. Software used to be sold on magnetic media, which could be written to, and there was the risk of the introduction of viruses.
2. Some companies, such as Microsoft, have such a strict licensing agreement that once the software is sold, the license is non-transferrable. That includes even cases where the buyer reads the agreement, says "screw this," and takes it back to the store. No dice; you have to go through proper channels, which means Microsoft (or whoever the vendor is.)
Which brings me to my point: in most cases, if you RTFM (or RTFLA) you'll find that, if *for any reason* you need to return the software or get a replacement, you must do so through the company. Yeah, it's a pain in the ass, but it's the way to do it.
Simply going to a store and being a jackass doesn't cut it. It just makes you look like an asshole and makes the clerk irritated. Do it the right way.
Stating on Slashdot that I like cheese since 1997.
If a company doesn't want their "ideas" (I suppose you mean source code?) published, so be it. They don't have to. America, at least, is a semi-free country; no one is forcing anyone to use a particular license (except RMS, and he doesn't count.)
Quite frankly, I'm getting a bit tired of this "all-or-nothing" rant. I just wish people would stop being so damn idealistic and start being realistic.
Stating on Slashdot that I like cheese since 1997.
According to this interview, he's not in as big a trouble as some are making out. Apparently, he didn't write the encryption code.
Sure he's a crackpot. But, he's a crackpot who stays true to his cause, a driven crackpot, exactly the kind of crackpot we need. Without RMS and the FSF providing the "lunatic fringe" of the open source (note the lack of case) revolution, the world would consider pragmatists like ESR and the Open Source(TM) movement to be the lunatic fringe. Which would probably mean that The Establishment would outright reject the concept of distributing the source code with the object code.
As it is, we have The Establishment embracing Open Source(TM), which is probably more than we could without RMS and his cronies.
In short, RMS may be a loonie, that's fine by me!
Ahh - My eye!
The doctor said I'm not supposed to get Slashdot in it!
NOTE: This doesn't mean we shouldn't fight it, if no one fights it then it MAY go through.
I don't know about you, but sometimes it's good to let laws like this go through so that they can be shot down by the courts. Don't get me wrong, I'm not in favor of excessive litigation, but some things definitely need to be tried in court. The deCSS thing is one of those things. This may well be another. Personally, I'm glad that the CDA was actually passed and then erased by the courts. What's the old saying, something like, "The undefined is the most dangerous?" If companies aren't explicitly told that they can't do this, they may very well do it.
IANAL, so they may already be told they can't do this. But if there's currently no legal basis one way or the other, I'd take a court decision over a law any day. Court precedents do a lot more to help you in present day America, with its highly litigious environment, than actual laws do.
If Judy in the secretarial pool clicks on a click-through license, that won't bind the corporation to anything because Judy is neither an actual nor an apparent agent of the corporation.
If Judy in the secretarial pool pirates software, nobody questions the company's liability.
UCITA puts anything and everything the software company desires into the same Verboten Behavior category.
You're also ignoring the fact that managers too download random software...
Bottom line, all liability becomes questionable. And where there's a question, there's a lawsuit. Lawsuits, my friend, become both inevitable and expensive.
What part of fishing for dollars don't you understand?
Yours Truly,
Dan Kaminsky
DoxPara Research
http://www.doxpara.com
UCITA is dead in the water, and here's why:
You're a manager at a large corporation. You employ thousands of people, some very experienced, others that you're just beginning to train.
Let me tell you what you can't afford. You can't afford the liability of any of your thousands of employees having the ability to commit the company as a whole to damn near anything. It's one thing to be liable if an employee pirates something. It's something completely different if you have to have your very expensive lawyers evaluate every single software EULA that any piss-ant department might be exposing your company to.
A mandate to only use standard EULAs is the end result from corporations, and suddenly most software companies have no chance of defeating Microsoft(whose EULA has to be accepted) or Open Source Software(whose licenses are standardized and non-threatening by default.)
Lets not forget that benchmarking restrictions apply just as strongly within a company--oops, now your managers aren't allowed to ask your engineers which database server would best fit your business's needs. More importantly, lets not forget that using a given piece of code could suddenly obligate your entire company to a full disclosure on how that code is being used--running a database on MSSQL? Oops, maybe in the next revision they'll say they have a right to retrieve "performance metrics" and "critical statistics" automatically...oh, don't try to firewall them, they'll remotely disable your server anyway...
And it'll all be legal. Violations of personal privacy pale in all sorts of aspects to the vitriolic reaction against violations of corporate privacy.
Now, nobody's stupid. This isn't going to happen, folks. UCITA's going nowhere, because it's just too much risk to too many people with far too much money.
The only reason this is even a topic of discussion is because more lawyers see a fountain of money flowing from the lawsuits than they see a fiduciary duty to their retained corporate clients to disclose the tremendous amount of legal risk such an ill-advised bill would create.
Never in the history of law has an unlimited amount of liability been enforceable in a unidirectional contract negotation! The fact that such a bill got thoroughly rejected in the United States Congress should say more than a little about the advisability of such a dangerous standard of liability.
Yours Truly,
Dan Kaminsky
DoxPara Research
http://www.doxpara.com
The GNU GPL is not an end user license agreement (EULA). The GPL does not put any conditions on the use of GPL-covered software. The GPL regulates distribution, not use.
If you are a user of GPL-covered software then the GPL has no legal relevance to you. In fact, the GPL does not even begin to concern you until you distribute the software. For this reason, the GPL is not an End User License Agreement. It would be more accurate to call the GPL a "distributor's license agreement".
Restrictions on the distribution of software are well grounded in copyright law. UCITA is not needed to enforce distribution terms, nor does it aid in enforcing distribution terms. UCITA is all about use of software, and not at all about distribution of software. Usage restrictions such as a ban on benchmark publications or a ban on reverse engineering are much more enforcable with UCITA than without.
Please don't confuse the GPL with a EULA. A EULA attempts to restrict the ways that you can use the software, while the GPL only addresses software distribution and places no restrictions on use.
Here is the bad news ... if any state passes the ammendment to the Unform Commerce Code a software vendor can still force that the licence be interpreted under that state's law even though the user's state has not passed the ammendment unless the state had passed legislation to forbid that.
Which state are you in? It sounds like it might be the best place to start with a campaign for anti-UCITA legislation.
What is the GPL but a very restrictive license then?
A very unrestrictive license.
Think about it. Every license starts at what you get with copyright law. Every EULA-esque license out there wants to *take* away those rights:
"You have a license to use this software, but:
You can't disclose performance benchmarks.
Or you can't make a backup copy.
Or you can't disassemble it.
Or you can't run it in an emulator or an unlicensed player/computer."
Or whatever they can think of to push the limits:
"You can't read it's files with a competitor's product.
You can't store it's files on a competitor's server.
You can't use it except in conjunction with the following list of other software.
We can remotely disable it if we believe you have broken this license.
You must succumb to the power of the Dark Side."
With the GPL, on the other hand,
"You have a license to use this software.
You have all rights copyright law gives you with this software.
In addition, you get these rights:
The right to modify or recompile the software and use the modified software.
The right to distribute the software or it's modifications under the GPL, as long as you distribute the source as well upon request.
The right to charge a fee for that distribution (not for the license or the source code, though)."
In other words, You don't even need to agree to the GPL to use GPL'ed software. However, if you don't agree to the GPL, you just have the ordinary copyright law restrictions to deal with, and you don't get the extra rights the GPL affords you; you can't modify or copy the software.
Granted, it's more restrictive than public domain software, but it's less restrictive than about every commercial license out there.
If the GPL were found to be legally invalid (which I don't expect to see), it wouldn't mean GPL'ed software suddenly became public domain; it would mean that GPL'ed software suddenly became restricted as per copyright law until it could be released by the authors under a different license.
Score 3, insightful? I give it a -10, -3 for demagogy, -3 for unoriginality, -5 for godwin-compliance.
See, I've met a few holocaust survivors -- jews and ex-communists. I've actually visited a death camp. I've seen plenty of documents, photographs, thousands of naked dead bodies being thrown in a hole in the ground with bulldozers.
And when I see you making just an implied comparison of this with the shrinkwrap license problem, I can't help but think that you're an ignorant and pathetic loser
So moderate me down. I know what I'm talking about.
"I consider what I had to say to be important."
No you're considering that the right to be a communist is not important. You left it out and there's a good reason for it. You have completely distorted the poem towards a completely meaningless and pointless plagiarism. You've removed all its substance to it.
if UCITA passes, a UCITA-esque EULA could become the standard EULA, and if some network protocol for some proprietary app somewhere becomes an industry standard, the prohibition on reverse-engineering would nail Open Source groups to the wall and ream them with a wheedwhacker.
We could always take care of this in the Free World ...
In amongst the fuss about click-o-matic licenses, a more important point has been ignored till now; the law makes anyone who doesn't modify the default by using a shrinkwrap contract totally liable in law for bugs. In other words, ordinary free software authors and especially public domain software authors are giving almost anyone a license to sue if they lose so much as a dime from any bug in the program.
Absolutely - the more trivial, the better.
"Wise men talk because they have something to say; fools, because they have to say something" - Plato
So far so good, except:
if UCITA passes, a UCITA-esque EULA could become the standard EULA, and if some network protocol for some proprietary app somewhere becomes an industry standard, the prohibition on reverse-engineering would nail Open Source groups to the wall and ream them with a wheedwhacker.
There is something that bears mentioning:
Overall, corporate interests should be antithetical to UCITA.
Imagine how lovely it would be for an insurance company to live with the fear that their entire WAN can be knocked out of operation by an irate software company. No more billing until they pay up whatever is disputed. And how just swell they must feel knowing that UCITA's proposed disabling codes could be hijacked by a disgruntled employee of some software company. Gee, won't they love to see that happen to their actuarial software.
Pretty much any financial firm, be it a thrift of some kind or a brokerage, or anything, should find UCITA to be nauseating. For a bank the thought that their software writers could be protected from a liability even if they know that there are backdoors in the ATM protocols or what-have-ye.
Then there are the airlines, also, very much a WAN-dependant industry with little in the way of a fallback if they lose their software.
Why am I saying this?
Because a well directed effort could get insurance-industry-dominate Connecticut and the state of New York not just to ditch UCITA, but to pass a "you gotta be kidding" type resolution.
Although UCITA passing would not mean that a company would have the audacity to try to use a UCITA-endorsed contract in dealing with a large software customer like a bank, it is still in the interests of many corporations in the US to lobby to give UCITA a well-deserved smackdown.
The GNU copyleft license uses copyright to a purpose diametrically opposed to the original intent of copyright law. Hence the nickname. But it still uses the fact that the author has copyright to do its magic to guarantee that others cannot misuse (ie make proprietary) the freely released code.
So yes, his words are copyrighted by Richard Stallman. But what would he do with that copyright? Why make sure that nobody used his words in a way he disapproved of!
Not strange at all.
Cheers,
Ben
My usual seat in the cluetrain is at A HREF="http://pub4.ezboard.com/biwethey.ht
You might actually have had a chance at making a case there, but you blew it on personal slams.
Yeah, I'm sure Satan will love this clause: "Note, this contract need not be read to be enforceable..."
Wonderful! Now you can sell your soul without even knowing it!
*/sarcasm*
Richard, Eric, Bruce, and everybody else on the soap box - step down for a moment and look around. Our message is going nowhere. People see the software, they use the software.. but they aren't terribly interested in whether they have to pay for it or not. "Does it work? Great, I'll take one."
We've been patting ourselves on the back long enough now. The honeymoon is over - let's knuckle down and start talking to the press. We need to boil these issues down to 1 page press releases, fliers, websites - and we need to make this accessible to the average consumer. We need to get them up in arms. I don't care how - make it a controversy. Invite RMS, ESR and the board of MPAA directors to a Jerry Springer show and let them throw chairs at each other - BUT MAKE IT HAPPEN. Turn this thing on it's head - it sounds like just another holy war now to the media - what's the interest? Put a spin on it - make it controversial. GET US A SPOT ON 60 MINUTES!
IANAL but the guy who wrote this is, and it bascially details the federal law has precidence over state law, hence this law will probably be made null.
Anyway read the following EULA problems, so I guess it goes to court and expires.
"Because we are not employing at entry level, offshoring will kill our industry stone dead."
Perhaps you have no argument against his, even when I doubt you read the article since you post a link that is already there. I fart in your general direction.
That said, I think that while RMS's opinions seem a bit extreme to me sometimes, we need him to balance all the people who a) are apathetic about freedom issues in software, or
b) are against freedom in software, like you. As for your opinions about him, the first may well be true, the second is not, and both are irrelevant to the discussion.
Cheers,
IfZicoKnowsWhyDoesHeWriteSuchCrap@coolmail.org
Hint. It isn't anyone remotely friendly to the authors and users of Free (as in Liberty) software.
... surprise! Member conglomerates of the MPAA, the RIAA, and the DVD Forum. Remember those guys?
In fact, if you look at the conglomerate structure and trace back most of these magazines you find
Now, compare that to the groups which are promoting the UCITA in its various forms and lobbied for passage of the extremely draconian Millenium Digitial Copyright Act. See any similarities? I thought you might.
We can rely on no one but ourselves to get the word out about this. Tell your family and friends, and anyone else who will listen with any tolerance. If enough people will do this the truth will spread in much the same way Linux has, by word of mouth and sneakernet. Talk yourself horse about these issues -- we all have to make up for the resounding silence the "primetime" media will maintain on a subject this close to their pocketbooks.
Organize internet wide awareness, via logos on web pages a la' the blue ribbon campaign.
Stop subscribing to these magazines, and make sure they know why (their silence on the DVD story, UCITA, and the MDCA, in other words, shoddy reporting and/or editors who have whored themselves out to their own special interest).
Please post other ideas -- currently our efforts on the DVD and mp3 front (I submitted a story days ago about yet another lawsuit against mp3.com from the RIAA which was never posted, knocked out in favor of "Phantom Menace Pre-Orders Available", no doubt -- now promoting a major product of these folks was real helpful to this struggle on slashdot's part, but I digress), as well as the DMCA and UCITA, are fairly fragmented.
We need to bring these efforts under an umbrella concept that lends itself (I shudder to say this, but must) soundbytes, banner ads, and little "click-me" buttons that can be spread around the net and made ubiquitious. It's early here in Chicago and I'm not exactly bursting with clever catchwords and phrases at the moment, but if anyone else has ideas please follow up with them.
This issue is far too critical to our personal freedom and our professional lives to be ignored or passively accepted.
The Future of Human Evolution: Autonomy
The United States had a great deal of respect for the laws of England, it was, and continues to be, the basis for our legal system. Respect for the King and the Parliament is a different matter.
Mea navis aericumbens anguillis abundat
Please clarify. Back doors are not a threat because (a) nobody in their right mind will buy a product that contained one or (b) they would be illegal under this legislation. The former is insufficient reason, since products have already been sold that have back doors, usually without the knowledge of the buyer.
This is a non sequitur. The downfall of Lotus 123 and Wordperfect had 100% of nothing to do with their contract terms and everything to do with Microsoft's belligerent marketing of MS Office. Microsoft's failure with MS Bob proves that they can't force a bad product down our throats without the right leverage. (It may have been a different story if they had decided to bundle it with Windows, but they seem to reserve that tactic for killing competitor's products.)
What if, pray tell, Microsoft decide to assert their new-found rights under this bill and modify all future releases of Windows (and their respective licenses) such that "you agree to allow them to connect to your computer via the Internet in order to verify that you have a legally licensed copy of the software"? Will the free market suddenly move away from Windows in droves? Will all new computers suddenly be purchased with an alternative operating system? The god-like powers of the "free market" only work when the market is actually free, and a certain Judge Jackson finds that Microsoft has monopoly power in this area at the moment, which means the market is not in fact free.
proof, n. A demonstration that a conclusion is implied by certain premises and axioms.
The author of the comment to which I am responding seems to know more about the state of law than I do (I am not even an American, let alone a lawyer), but here are the salient points as I understand them.
The main point of this law is that it finally makes the legality of a "software license" -- click-through or otherwise -- a definite thing. Software companies have been doing this "license" thing for a long time, but to my knowledge there has never been any legal precedent established as to whether they are in fact enforcable. Why is their enforcability in question?
Let's look a little at what a software license is. Software has been granted protection under the auspices of copyright law, which means there are certain things you may and may not do by merit of the fact that the software is a copyrighted work. Software licenses tend to re-state these terms, but you would have been subject to them anyway (even without the license terms) because that's what copyright law dictates. Software licenses also tend to extend these terms by such constraints as prohibitions on reverse engineering and disclaimers of warranty. Compare this to the GNU GPL which conditionally waives rights available to the copyright holder. Copyright normally prevents you from making duplicate or derived works; the GPL conditionally permits these actions.
Therein lies the crucial difference. I do not need your agreement in order to grant you privileges, but I do need your agreement for you to waive your rights. You have certain rights and prohibitions under copyright: the GPL relaxes or abolishes some of the prohibitions, and the BSD license relaxes even more, but a typical software license tries to take your rights away.
Now we move to step two: non-negotiability. You can, if you wish to do so, enter into an agreement with another party under which you waive certain rights or adopt certain responsibilities. That is what contract law is all about. Contracts are negotiated. This "software license" thing that you have to click through or rip open is not a contract. It is rarely disclosed up front, you have no opportunity to negotiate it, and you do not sign it. These fatal flaws in the scheme are weasel-worded around by such phrases as "by opening this package, you agree". Balderdash! Opening the package is the clear right of anyone who has purchased a product! You should not have to give up additional rights in order to use what you have rightfully purchased! Nor should you have to agree to a click-through license. There is a strong legal argument, I believe, in the notion that you have not agreed to a license just by clicking on "I Agree" -- it was simply a necessary action in order to use the product. It smacks of coercion, and a coerced contract is no contract at all.
Finally, what are we talking about here anyway? A license, or a contract? It looks like a contract, because you are expected to agree to it, but it calls itself a license. What's the difference? In my ignorant non-lawyer way of understanding things, a contract is a set of terms to which two parties mutually agree, whereas a license is a conditional grant of rights by an authoritative party. You do not have a right to drive: you must first obtain a license to do so. Nor do you have the right to bear arms if you live in a country which requires all firearms to be licensed: it is, rather, a privilege that the government grants you. So what's with this "software license" crap? Who gave the software companies the right to dictate to me what I can and can't do with software beyond the scope of copyright? The GPL and BSD licenses are true licenses because they grant privileges to the end-user; privileges which the software author is in a legal position to grant under copyright law. Any "thou shalt not reverse engineer", or "thou shalt not complain", or "thou shalt not say bad things about us" are unmitigated nonsense with no legal weight in a license unless the law already grants the copyright holder the option to assert these rights. Alas, we see a move towards granting many of these exact rights with the "Digital Millennium Copyright Act".
This is what the UCITA is about. It is a broad approach to making whatever language the software companies decide to put into their license terms legally enforcable. It establishes once and for all that a "software license" is a one-sided contract that you do "sign" by opening the packet or clicking on "I Agree", and thus opens up a whole new range of antisocial and unethical behaviour to the realms of legality.
That, at least, is my impression as an uninformed non-laywer who would almost certainly not understand the legislation even if I read it (and I haven't). Caveat lector.
The copyright holder of this post, The Famous Brett Watson, hereby places it in the Public Domain (P) 2000.
proof, n. A demonstration that a conclusion is implied by certain premises and axioms.
Why does the father of the "copyleft" decide to put "copyright 2000 Richard Stallman" on his written words, but not on his software? Should we not be able to use his writing as we see fit?
I like music
I'm sorry, but Stallman's piece isn't going to advance the UCITA debate one iota because of his fringe beliefs. I mean, we're talking about a guy who thinks charging for software is immoral and who tacitly endorses software piracy. It's like, "Newsflash: Commercial Software Opponent Complains About Law Which Benefits Commercial Software Vendors But Hurts Consumers!" Well, duh.
If you go to http://www.badsoftware.com/oppose.htm, you can find tons of sources who aren't anti-commercial-software who still think this is a terrible law. These are objective voices that you want to make heard on this issue.Cheers,
ZicoKnows@hotmail.com
Bingo. There seems to be an attitude going around that if you actually care about anything, it must mean that you need to "get a life."
Whenever someone tries to tell me that, I tell them to take their fatalism and go fsck themselves.
---
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
--
"But, Mulder, the new millennium doesn't begin until January 2001."
send all spam to theotherwhitemeat@ropine.com
One of the things I like about stories like this is that you get information on HOW TO DO SOMETHING ABOUT IT. There's not just a mention of why you should be alarmed. There's not just a portent of trouble. There's an email address to someone you can contact if you're interested in actively working towards a solution.
Most of the mainstream media is really just entertainment. It's informational too, but hardly ever says anything about how you could be involved. Hence the term Infotainment (and I admit, it's a laughable term, and smacks of copywrighter syndrome, but I sort of like it). Possibly, it's as damaging as no news at all... in the same way as being continually exposed to calls for help from drowning people without doing anything about it might be.
(Except without the drowning people. I think I waxed a bit dramatic there.)
Anyway, I'd like to see more of the "how you can help" style. Probably won't come to USA Today or even CNN anytime soon, though. Thanks to Stallman and Slashdot saying something about it.
(Admirable how Bruce Perens encouraged people to donate to the EFF over on Technocrat.net, too. )
Tweet, tweet.
And to think I almost posted this article, but then I figured, "naah, it must have been posted already..." :P
Anyway, Stallman is, as usual, the best at what he does - which is, being preachy, but in a good way. However, he's evidently preaching to the choir: I'd wager that most of the people who read TLJ already know that UCITA is eeeeevil, and must not be allowed to pass. Meanwhile, outside the established community, very few people even know who Stallman is, let alone read his stuff.
So the foremost priority is to get him published somewhere big. Wired. Any of the big fancy Times-style newspapers. Heck, even a cover story on CNN.com would do.
Until that happens, Stallman will remain in obscurity, and maybe UCITA will be allowed to pass through with little complaint... in which case I'll promptly withdraw all my applications to American colleges.
I'll finish off with a haiku:
Dick watches with grief
Over the frozen water
A bird's lost its wings
To the editors: your English is as bad as your Perl. Please go back to grade school.
To what extent will these `click-wrap' licenses be enforcable, then? I mean, if somewhere in small print down the bottom of the text, it says something about the user being required to witness a weekly RealVideo broadcast of Bill Gates shagging a goat for the duration they use the software... is that enforcable? I hardly think a software manufacturer could write anything they liked.
There must be some enforcement of statutory rights; if this bill is just being pushed through by software manufacturers, what will your government say to one industry that wishes to disclaim all responsibility for its actions? My guess is it ain't gonna happen.
And what's with the hysteria of snap decisions on licensing? What's the difference between a click in the installation process, breaking the seal on a CD jewel case or just firing up the software for the first time? As long as you know what you're agreeing to, as long as you know what signifies your acceptance, and as long as the contract you're agreeing to is legal, where's the problem?
I'm not trying to sound confrontational with my post but there's a lot of hysteria flying about and nobody's quite told me what it's about yet.
--
Matthew
Matthew @ Bytemark Hosting
The reason you can't post to /. without mentioning your lawsuit is because it's in your tagline... :)
Stallman has talked about this before. It's a serious issue that must be fought, tooth and nail, with lobbying and with civil disobedience, if necessary.
Civil disobedience? A fine idea, but one must choose a method of civil disobedience that would be appropriate for the issue at hand. I suggest that the place to apply the civil disobedience pressure is the place where such software is usually sold.
Here is how such shink-wrapped software is usually sold:
Now my civil disobedience version (made available to all freely under the GPL):
Do this enough, and stores will begin to get the idea that selling shrink-wrapped software isn't such a great idea, after all.
An important point to consider when considering civil disobedience within the software store is that such stores do not take enough responsibility with respect to these agreements. In particular, the store does not give the customer an opportunity to read the text of the license agreement before purchasing the software. Either the FULL TEXT of the license agreement must be printed on the box, or the store must give the customer a copy of the FULL TEXT of the agreement to read before money changes hands.
Shrink-wrapped software isn't always where you expect it, either. I found one such example in a printer I recently bought, and if I didn't agree with it, I was not allowed to use the printer drivers. This shows how disruptive shrink-wrapped license agreemeents can be.
Disclaimer: I am describing the usual method of purchasing shrink-wrapped software within Australia. Your mileage may vary....
--
The only thing necessary for the triumph of evil is for good men to do nothing. - Edmund Burke
I hate jumping into a thread that consists largely of petty bickering aimed at individuals instead of a debate about the merits of an idea, but I'm going to do it anyways and I'm going to do it here.
While it may be unfair to compare UCITA to the rise of facism in Europe, just as it may be overstated to compare Stallman's creation of the GPL to Constantine's conversion to Christianity, but this last post has, IMHO, got to the nub of the gist.
Stallman is, as far as I can tell, calling for legal political opposition to a proposed piece of legislation. I think that it is clear that the anti-reverse engineering provisions of UCITA represent an unacceptable limitation on personal liberty. Current intellectual property law already adequately protects the interests of proprietary software vendors, many of whom have made their products by reverse engineering the work of others.
Stallman takes the position that a program, as a symbolic representation of thoughts and ideas, is equivalent in every respect to speech. Thus it can be copyrighted and sold, but it cannot be limited. You may disagree with this position.
The provisions that forbid reverse engineering would be like saying that because an idea has been expressed, no one else is allowed to think of the idea themselves and elborate on it or state it in a new way. Copyright law prevents me from publishing "I have a dream" as if I had said it, but it does not prevent me from talking about civil liberty, racial justice, or social inequity. (Note that I am not suggesting Stallman is comparable to Dr. King).
Who cares if a young man overstates the case? Firey overenthusiasm is a privledge of youth. Even older and more sage heads should mind the substance and not the form of the argument. Opposition to UCITA does not mean opposition to intellectual property. As I get tired of pointing out, Stallman's own GPL depends on intellectual property law.
UCITA is more than an extension of copyright, it amounts to a gag order on algorithms. While I don't see anyone progressing from this to censorship of thought directly, it is still something to be opposed.
I do agree with those who think civil disobedience of a bill (not a law) is putting the cart before the horse, but again, can't you see that this is the fervor of youth? Let passion spend. Wisdom comes with age and age is inevitable. Give him his head and he will tire. I hope never again to see the insightful phrase "shut up" in this forum.
First they came for the communists
Apart from that your post is complete blather. You should get some sleep and you shouldn't post at (+1) unless you have something really important to say - otherwise you show up when I'm cruising at Threshold 2 and it pisses me off.
Thanks
Crush
Ignorance is not really any defence.
Emmm...that's the point of fighting the law isn't it? We make sure it never gets on the books and then it doesn't matter whether or not anyone is ignorant of it. The point is...this is a bad law...not that ignorance is a defence.
UCITA has another indirect consequence that would hamstring free software development in the long
term -- it gives proprietary software developers the power to prohibit reverse engineering. Again, this is
already the case. You can't use it if you don't have a license, and all they have to do now to keep you from
reverse engineering is bury in the license "PURCHASER agrees not to reverse engineer the PRODUCT."
By doing that it becomes a promissory consideration of the license, a breach of which destroys the
license's consideration, making it revocable at will. Again, this is all common law. Don't need a statute for
that. All a law that says the same thing will do is change the language used in the lawsuit. The only attack
to a no-reverse-engineering provision in a current license agreement is unconscionability -- and if you
win that you have to surrender your license and the fruits of your reverse engineering.
How about just starting by disassembling the installer, jumping over the eula and using it then?
Respect for the rule of law is contingent upon the law deserving respect. The United States was founded upon disrespect for the laws of England. And as others have argued more eloquently than I could, this is more than a matter of petty convenience.
--
Do I look like I speak for my employer?
Well put. But let's not forget.... the same thing can happen to us. It's important that we remain vocal.
OpenBSD is based in Calgary? Hmm.. I'm in Calgary....
Hey... anyone in Calgary got any old SGI gear they wanna unload? *hint hint*
Right. Ignorance is no defense, in other words, it is everyone's duty to learn and understand the law.
Why is it then, that in court, the judge tells you you must have a lawyer, and that you are not capable of understanding or interpreting the law yourself?
the First Amendment makes it impossible to prohibit criticism of software (there's an even longer line of cases on that).
Bzzz, sorry, wrong answer. The First Amendment protects your free speech rights from the government and only from the government. You can perfectly well waive your rights to speak of something under a contract (NDA is a very common example). The sequence is as follows:
> You agree to a license which, among other things, says "I agree not to discuss this software".
> You go to Usenet and post an article saying "This software sucks"
> You are sued for breach of contract: you agreed to do something, you broke your promise, the counterparty suffered damages because of this. Where does First Amendment come into this?
Kaa
Kaa
Kaa's Law: In any sufficiently large group of people most are idiots.
Alright, I'm pissed. (And I normally don't give a damn). Its just sad to see slashdot becoming a haven for such stupidity. (And notice I didn't say trash, I could care less about the trash, its the stupidity of such a post like this that bothers me). But I'm as much an anti censor as the other guy, but this is rediculus, as accually close enough to libel (or is it slander, I always get the two mixed up). That I would be willing to chance my right to post here for the opportunity to remove items like this. I mean chance my opportunity to post as in if I delete an item.. just One item unfairly, my account can be revolked.. I'd make that trade.. sound fair enough?
Well, there is this little thing called the GPL, which doesn't allow very many admendments. But if I released a software package today, that used GPL code, I would not be able to include many additional protective licenses for myself. And that law would affect me.
But, you don't need a license to use software. You buy a book and you can use it in any way you wish, except as violates copyright law. Ditto with a book on digital media. Thus, it should be the same for software.
/users.pl for replies, so even if you can't do it while the thread is current, I'll still see them.
I don't understand why a license to use software would be required.
And, based on the assumption that no license is required, if you are sold a book/software, you have just bought the right to use it, any other agreements you are expected to enter need to be followed up with additional consideration. (For example, agree to this semi-restrictive license and we'll provide additional support for two years.)
You are right, the actual text of the contract doesn't need to be known when you agree, as long as it wasn't misrepresented. If you bought software and were told that you must agree to a license before actually using it, then it would be part of the agreement, as long as they didn't slip in horrendous terms that would be ruled unreasonable.
But, if you haven't already paid for the software, like in the case of shareware, or downloadable software, and you agree to the license, anything goes. There is no initial agreement, so if you click 'I Agree', the use of the software is your consideration, because you haven't already paid for that right.
IANAL, but I did take a year of law, and it was pretty clear that while there are some assumed contracts (like handing money to and getting an item from a retailer constitutes a legal sale even if no words are spoken) that every party must get consideration, and must have awareness of the agreement, if not the specific wording.
Awareness, as in, you can't be assumed to have agreed to a contract just by entering a store, or something.
Furthermore, any contract deficient in any of these (and other) aspects, or between non-capable people (minors, the mentally ill, etc) is void, and can be agreed to without burden. Sort of like a gift contract, where you hope the something will be done, but can't enforce it. The exception was contracts where they appear to be valid, and the problem is an intentional loophole intended for fraudulent use.
This means, I could offer you a contract whereby you pay me $1M, and I do nothing (not valid for lack of consideration) and you could sign it, but it wouldn't be binding because it isn't valid, so when I came to collect, you could ignore me.
This basically establishes my argument for click-throughs being void. You've paid for the software, thus gaining the right to use it immediately. Any additional restrictions not mentioned at purchase-time are a second contract. If they offer you the contract but offer the use of the software, that counts as no consideration because you already bought it. Additionally, they are withholding your right to use something you own until you agree with them, that doesn't give you the freedom to turn down the contract if you reject it (you have to say 'I Agree' or it's a coaster) so it's again invalid. Thus, the contract can be accepted without burden.
This bit about freedom is, contracts signed under duress aren't valid. If I was to sit on your car and require you to sign a contract, even if the contract was valid in all ways, before I'd move and let you use your car, the contract wouldn't be valid, because I have no right to withhold access to the car, and you, having to have access to something you own, which I am withholding, would be forced to sign. Alternately, this could be viewed as the implied addition of me returning your car to the contract, and because me not letting you use your car is illegal, the contract would again be invalid. The parallel is the software company requiring you to sign the contract (click 'I Agree') to use the product you already purchased. Once again, this assumes that you weren't given proper notification that use of this product was dependant on a later contract, before you agreed to the sale.
Canadian law could differ a bit from US law, but most of this sort of thing, asside from the proposed UCITA and the (existing) DMCA, are the same or very similar.
Anyways, if you want to provide cites, I'd appreciate it. I'll check my
Thanks for the opinions.
I'd like to see some of this list showing that clickthroughs are already enforceable.
Currently, the only cases I know of that supported them are ones in which the license just reiterated the obvious, like the copyright. Similar to shooting down the old defense of "Well it didn't have the (c)" or "It used (c) instead of a C in a circle", where the judge just reaffirmed that the copyright is still valid even if you don't use any symbol.
So, to the best of my knowledge, the clickthrough license has never been valid because it is not a valid contract in many ways, lack of consideration and lack of disclosure being the two most obvious. (You already bought the software before being asked if you agree, so they can't offer you anything at the point which you don't already have. Also, you don't see the contract until after the sale is finalized, where you get your right to own it, and you can't be expected to agree to a secret contract, so it's invalid.)
While a contract can specify nearly anything for consideration (pretty well anything legal), the contract has to itself be valid, or the whole thing is meaningless. So, while they could, with a valid contract (that you sign before purchase, and are paid for) get you to agree to not talk about the product, not reverse engineer, not use while wearing green, etc, they can't do any of this with clickthroughs because they are totally invalid.
Ditto with shrinkwraps, for mostly the same reason.
The UCITA wants to change contract law, such that you don't need to know about a contract (or even have it be implied, like retail sales, etc) to be bound by it, don't need to receive consideration, and don't need to actively agree.
This *will* fail, because if it passes, contract law will be useless. Someone will sneak "And you agree to transfer title to everything you own to Company A." into a EULA and sue that user for everything they own, when that user is a big company, or a government depertment, the shit'll hit the fan, the defendant will buy as many judges as the software industry, and it'll be show down, probably with freaking huge punative damages.
This is not at all a good assumption. Government generally has the power to establish how contracts work, and since the Constitution does not cover things like "Thou shalt not make click-wrap licenses valid", the court system doesn't have any sort of leg to stand on to overturn the law.
This is part of the fundamental problem with UCITA - we are used to enjoying certain standards in our dealings with others. If you buy a defective product, you expect to have the right to return it. You don't expect to have to agree not to criticize the company or product when you install a piece of software. UCITA would change these fundamental assumptions about "how things should work", and not in your favor, either. It's dangerous.
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Michael Sims-michael at slashdot.org
if he's a spoiled little kid, I wonder what you are?
Do you have a point, I've seen you pipe up on this issue before.
I like free software. If the guy who *started* the whole shebang says this is a bad thing and threatens free software, I believe him. I've seen what UCITA promises, it's scary. I'm sure Doubleclick, M$, and Real all support it though, this might be a big fight.
+&x
This is, quite simply, false. The laws were passed by the Parliament, which had since the time of the Civil War been largely in the hands of wealthy non-nobles. The colonies' quarrel was not with the King but with his Parliament. Unfortunately, to fight the one was to fight the other.
In fact, George Washington and his officers regularly toasted the health of the King well into the Revolutionary War.
What the Brits should have done while they had us was to create New World peerages and added some seats for MPs from the colonies.
Imagine how different history might have been if the colonies had never split. Sigh...
You get screwed anyway. Just ask the petitioners in Walker v. City of Birmingham: all it takes is a rogue judge with an ex parte injunction, and you're screwed regardless.
I admire your enthusiasm, but I question your knowledge of history.
"If one is really a superior person, the fact is likely to leak out without too much assistance" -- John Andrew Holmes
The quote is by Pastor Martin Niemöller. The correct quote is:
"When Hitler attacked the Jews I was not a Jew, therefore I was not concerned. And when Hitler attacked the Catholics, I was not a Catholic, and therefore, I was not concerned. And when Hitler attacked the unions and the industrialists, I was not a member of the unions and I was not concerned. Then Hitler attacked me and the Protestant church -- and there was nobody left to be concerned. " [As quoted from the Congressional Record, 14, October 1968, page 31636]
"If one is really a superior person, the fact is likely to leak out without too much assistance" -- John Andrew Holmes
We need some popular primetime newsmagazine to do a special this thing to really kill it.
Yes, I do think it's that huge. Everyone computer user should know about this conspiracy.
Shrinkwrap and clickthru licenses DO form contracts. There's a lot of caselaw to that effect. I posted a few citations on this here on Slashdot the last time this issue came up. Do a law journal search on "clickthrough" and you'll find HUNDREDS of law review articles that will discuss the issue to death. (My Westlaw access is currently suspended or I'd dig up a few cases on point.)
The truth is far more interesting. There are Circuit Court opinions supporting both views, although it appears that the ProCD case (shrink-wrap yield a contract) seems to be leading the "trend." Such ambiguity is one of the UCITA proponents principal arguments for the need for a uniform Act.
Finding that there are differences between various different types of licenses doesn't amount to an argument that one kind of license is not enforceable under UCITA (but is enforceable under the UCC).
Even if your arguments were true, why would the distinction make a difference?
Are you forgetting about copyright law? You do not absolutely need a license to use software. If you legally acquire a copyrighted work whether it's a book, movie or software, copyright law gives you the right to use it.
I dissent.
The first sale doctrine (17 U.S.C. s. 109) applies only to the distribution rights, and not to reproduction. You are no more permitted to make copies (from disk to RAM; see the MAI and Southeastern cases) of a computer program because you own the copy than you are permitted to photocopy a book.
You seem to think that I'm making this up, just to press a point. I am not. We are not arguing what the law of Copyright should be, but what it is. You don't need to rely on me, but I practice daily in precisely this area of law.
Your supposition that you are entitled to "use" (whatever that means) a work merely because you own a copy, is in error. The Copyright owner who has sold you a copy retains complete exclusive rights to reproduce, make derivative works from and distribute the work, subject to first sale. If your notion of "use" entails making copies (of any kind, except as subject to Sections 107-120), which is to say reproduction of the work, you commit actionable copyright infringement. In certain circumstances, that infringement can be a crime.
Your example of "using" a book is inapposite -- if you make copies without a license you have committed an infringement.
Your example of "using" a video tape of a film is inapposite -- if you make copies without a license you have committed an infringement. (For AV works, there is also a public performance exclusive right, by the way).
As to software, I am telling you (and you may choose to ignore me once more if you like) that there is authoritative case law holding that the use of the software without a license (or beyond the scope of a license) constitutes Copyright infringement by the intermediate copies made in RAM. I don't know if the MAI and Southeastern cases are available on-line (check out the 9th Circuit web site), but if you are truly interested in learning more about this, contact me privately and I'll get you the full citations.
In the meanwhile, you may take it as read that your incredulity is unwarranted -- I offered you a fair characterization of the Copyright law, which does not support your supposition as to what you may and may not do with copies of a work you believe you have purchased. There are defendants who have paid heftily because their supposition that ownership of a copy of software implies use was inconsistent with the Copyright Act.
By the way, Congress expressly considered legislatively overruling MAI and Southeastern last year, and actually did so, but only in the limited circumstance of "using" system software to repair a machine. Thus, the Congress expressly embraced the status quo except for that small example. If you know any cases to the contrary, I'd be most interested -- but I doubt you'll find any.
Which inconsistency is that? I am unaware of any case addressing the unlicensed use of a DVD. It may well be that DVD copying without license is infringement. Of course, I'm not sure why one would think they were not licensed to view their film at home -- the package of every DVD I own says "licensed for home viewing" or similar language to that effect. (I do have one that says, "for home viewing only.") In each case, a license is implied by that language.
BTW, what's with the blanket statements about copying==infringement. Don't know much about Fair Use, but even I know that I can quote and publish excerpts for the purposes of review and literary criticism (among others).
The quoted passage mischaracterizes what I wrote:
Section 107, cited above, codifies the fair use defense.
*sigh* I am satisfied that I have addressed all your points to the extent they had any merit at all. We'll simply have to agree to disagree.
You see, UCITA says that by default a software developer or distributor is completely liable for flaws in a program; but it also allows a shrink-wrap license to override the default.
With all due respect to RMS, I dissent! It seems that UCITA is actually more friendly to OSS developers than the status quo in this very regard.
First, with respect to liability "defaults," how is UCITA any different from the status quo? Under the UCC, for example, there are implied warranties against infringement, of merchantability and suitability for a particular purpose. Present law also permits a contract to override this default. On the other hand, if the GNU license agreement is not binding, then you are stuck with all implied licenses (and if not a contract, perhaps a claim in tort in those states showing chinks in the armor of the Economic Loss Rule)! The risk of unlimited liabilty under the status quo is substantial -- and it is the need to reverse this risk of liability which typically forms the strongest argument for a pro-mass-market position UNDER THE STATUS QUO.
Now as to mechanisms for such reversal, it appears to me that UCITA provides zillions of avenues to argue that assent to the GNU was manifest by conduct, even if the license were not (and it probably is) enforceable as a mass-market license. To the best of my knowledge (it has been a while since I looked at it, the words "shrink-wrap" do not appear in UCITA.
Compare this with the status quo, where we are at best at the mercy of a court to determine whether our GNU license limitation of liability provisions are enforceable against a user. Indeed, under the common law, only "shrink-wraps" and "click-wraps" have been accepted -- it remains to be seen if a license accompanying an electronic record without some mechanism to limit access is enforceable under the status quo.
So, I agree with RMS' points, but think that it argues FOR the adoption of UCITA rather than against it. I AM opposed to certain other provisions of the Act, but these provisions seem to me most among the most helpful to the OSS and free software movements.
Somehow I doubt breaking this law would disrupt the orderly working of society. And look at what civil disobedience has got us in the past... Rosa Parks, Ghandi, DeCSS, etc.
Become a FSF associate member before the low #s are used
Stallman has talked about this before. It's a serious issue that must be fought, tooth and nail, with lobbying and with civil disobedience, if necessary.
Many people are going to say that RMS is a crackpot or a communist. If he were a crackpot, he would talk for hours about this stuff, but never produce anything. Instead, he's slaved over keyboards for years, destroying his wrists to build free software for all of us to share.
Some people here have never actually read anything by RMS, and they don't understand why he, and many others, think that proprietary software is bad. I recommend http://www.gnu.org/philosophy/philosophy.html as a starting place.
Become a FSF associate member before the low #s are used
One of the things I like about stories like this is that you get information on HOW TO DO SOMETHING ABOUT IT.
Good point. For example, if you live in Washington State, you can contact your state legislators at www.leg.wa.gov as well as the committees - for both the Senate and the House. Most other states have similar URLs.
But make sure, when contacting people, that you give your name, address, zip and phone. Ones without are usually filtered. Ask politely and give them URL links to info in the emails.
Will in Seattle
Could you explain why this is? If I don't need a license to read a book I have purchased, why do I need one to use software that I have purchased? Where do music recordings fall; do I need a license to listen to them? I guess what I'm asking is, in a nutshell, why do software producers feel they are entitled to rights beyond what is normally granted by copyright? For that matter, why is the license game restricted to intellectual property? Why cannot car manufacturers, for instance, get in on the action with their own license agreements when you buy their products?
Also, what terms can they put in these licenses? What about these examples? As the purchaser you agree:
I'm pretty sure I have seen (1) in EULAs before. Is it enforcable? I bet music companies would love to have this right. Do they, and it's just that nobody ever thought of "licensing" CDs before? Should any copyright holder have the right to say you can't sell a product secondhand when you're done with it?
Number (5) also appears routinely in EULAs; it was the crux of the flap over converting NT Workstation, in effect, to NT Server by changing a registry key. Why is it that if I buy a car I can make whatever modifications I want, but if I buy software I'm not allowed to make any modifications whatsoever? If Chrysler wanted to include a "license agreement" with any cars it sold that forbade any unauthorized modification, could they? Would it hold up?
What about number (2)? Presumably that isn't legal, right? But (3) routinely appears in EULAs as a "thou shalt not reverse engineer" clause. If a protocol or file format is proprietary, doesn't (3) amount to (2) in effect?
Anyhow, I hope one of the more legally versed among the readership will take a few minutes to explain some of these issues because from where I'm sitting it looks an awful lot like a case of "what's ours is ours, and what's yours is ours too," but I'm sure it can't be that because big business would never do that to us, right?
As far as I can tell, what it boils down to is that copyright holders (with software manufacturers in the vanguard) are increasingly trying to control not just distribution of their products, but also the use of their products. As a mere citizen, I no longer pretend to understand the law well enough to say whether they can get away with it. (Had I but known it would come to this, I would have studied law instead of science, simply as a matter of self-preservation.), but, at least to a legal outsider, it seems like copyright shouldn't convey the right to dictate terms of use. The lawyer-priests may tell us that it should, and I guess that makes it so, but that doesn't mean we have to like it, and and it doesn't mean that we can't resist with all of our meager powers. I doubt it will do any good unless the lawyer-priests have a change of heart and decide to champion our cause, but it will at least give us something to do while we wait for the next round of buggy patches to all of our duly licensed software to download.
Sincerely yours,
Cynical in Charlottesville
The biggest danger from UCITA is the licenses which commercial software companies will impose. They'd be stupid not to; they can take rights from the customer in any way which is useful to them, without the customer even being able to read the license before buying the software. Maybe they won't all use those rights in serverely detrimental ways, but you can be sure that some company will at some point.
Think about Unisys and the GIF issue. Suppose the next version of MS-Office had a clause in the license saying that MS Word's file format was their intellectual property, and that MS reserves the right to change the license without prior notice. They probably wouldn't enforce that right immediately, because it would wipe out sales of MS Office. However, if it ever comes to the point where MS Office is essentially dead, they can impose the following trilemma on you: either (1) delete all non-microsoft software from your system; or (2) delete all your documents which are now, or *ever have been*, in MS Word format; or (3) Pay MS a royalty fee of $100/year for the use of the file format.
Stallman's point that free software authors will in future be held liable for bugs in software which is already around today is a problem which affects the free software community. It wouldn't be as much of a problem for a vendor of proprietory software, because they relicense the software to you at every release. The original copyleft license, by contrast, can still be in force in portions of code which were written 10 years ago but are still used in modern software today. E.g. If I wrote a gcc patch 10 years ago then I'm still liable for bugs occurring as a result of that patch *now*.
perl -e 'fork||print for split//,"hahahaha"'
The FSF doesn't need to convince the general public that the free software movement has better goals than the open-source movement. It only needs to convince potential authors of free software, so that they'll write stuff for the cause. I think the FSF does quite a good job of this.
perl -e 'fork||print for split//,"hahahaha"'
Martin Luther-King? Gandhi? George Washington? Jesus?
None of these people were working for their "petty convenience". They suffered much inconvenience for standing up for their beliefs. This applies also to RMS.
perl -e 'fork||print for split//,"hahahaha"'
Outside the developed worlds, hospitals don't have the financial clout to do as you say. They have to rely on shrinkwrapped software.
perl -e 'fork||print for split//,"hahahaha"'
UCITA is a law that would allow a one-sided contract... the user has responsibilities, but the software companies can remove their own responsibilities. Such a law would be shot down in the courts during the first trial ever brought up by it. These licences would be even less enforceable than the current shrink-wrap licenses... "You must pay this much for our software, you may not redistribute, reverse engineer, install, or use the software, and you may not have a refund because our software lived up to it's responsibliity of "CD-Coaster."". It would never succeed. Period.
NOTE: This doesn't mean we shouldn't fight it, if no one fights it then it MAY go through.
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linuxisgood:~$ man woman
Restating the obvious since nineteen aught five.
The e-mail I'm going to write to my state senater:
"By reading this e-mail, you agree to vote against any and all bills endowing "click-wrap" license agreements enforcable"
The cake is a pie
The most important point of this legislation is the prohibition of reverse engineering and other information restrictions. Information, it is said, wants to be free. Well, the internet has changed all that. Information is free. It will be free. Information cannot be held captive any longer. If a file format is used, it will be decoded. If functionality is published, it will be reproduced. It will. No legislation can change that now. We can pass a law forbidding the sun to rise, but it will rise. It will. We can arrest everyone who watches a sunrise, but the sun will rise. LZW compression, although patented, is used freely. The DVD folks wanted a monopoly. It's true. Why else would they try to use a format that nobody else could use. That's the definition of monopoly: total control of a good or service. That got cracked. KOffice can import Microsoft Office files. All this is as it should be. Information is a different commodity than anything we've seen before. It costs effectively nothing to copy. The big corporations with the deep pockets are absolutely confounded by the internet. The smart ones are riding the waves. The foolish ones are trying to pass legislation to ban the tides. Information is available quickly and cheaply. And as broadband access becomes more widespread, more information will be accessible. DVD movies WILL be downloadable in the not-too-distant future. If Hollywood is smart it will watch the music industry. The music industry is experiencing the changes that will be coming to the movie industry in the next 5-10 years. Smart coders WILL write players for any movie format that comes out. Obviously, it is in our best interests to fight this legislation. If we shoot this garbage down, we'll have a lot fewer headaches later on. But, in the long run, it won't matter. Information will be free. It will. As a side note, be very mindful of what companies support this legislation, and which companies condemn it. Any supposedly Linux-supportive company that supports this legislation is no friend of the open-source community, or of its customers.
We don't have any such pending legislation (Yet (I hope))If the UCITA is passed in too many US states then
I suspect that the US will experience a massive "Brain Drain" and corresponding "Exodus of Investment Capital" This might jolt legislators back to reality but probably not in time to prevent some nasty economic consequences (Proprietary Software Devlopers Excluded).
I question, however, is Canada safe from this legislation. US courts seem to have the ability to affect companies in Canada. The recent iCrave situation worries me. Many people on '/.' questioned how the US courts could make an effect in Canada but it seems to have happened. I haven't seen any information about how this was accomplished, but, I worry that some aspect of the UCITA could find it's way to MY COUNTRY.
I'm tired of watching bad laws and precedents get pushed forward that nobody I know wants and most people I know dislike. Somehow we've got to find better ways to get our message into the minds of more people in government.
I think there are a LOT of people who are sympathetic to our ideals for free and open software, but I don't think our views are well represented to people in politics. I'm also somewhat disappointed in the "linux companies" ability to stand up for their customer's values in the political arena. I don't know about others, but I would definately smile on a distro and be more likely to purchase it if I felt that by doing so I would promote some pro-consumer political activism. I consider this part of the "service" I want.
I'd like to hear from people on how we can be more effective at getting our message to the politicians. I think we may need to take a look at the methods of other successful grassroots organizations and see if we can't combine some of their methods with the strenghths of this community. Anybody got any ideas?
When replying to trolls, you lower yourself to their level by imitating their means.
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Internet Explorer (n): Another bug -- that is, a feature that can't be turned off -- in Windows.
I don't have a problem with license agreements on software. I can always use software that is licensed under the GPL or another free license. However, when the law will be changed retroactively modifying the GPL and granting to shrink-wrapped licenses a power to completely disclaim liability which is not available to free software, that is just wrong.
I am probably one of the people in the community that RMS was referring to when he said that some of us have argued that more restrictive licenses would drive customers to free software. What I remember saying is that the restrictiveness of the license is just another part of the overall cost to the customer. Software will compete on license restrictiveness as well as price, functionality and reliability. That is already the case.
I suggest a modification in the GPL (somebody put it in legalese):
Any supporter of UCITA agrees to permanently delete all software on all computers under his control that is not licensed under a license accepted under the definition for Open Source or Free Software or that is licensed under a license that depends on UCITA. Said supporter will never again use non-free software. Supporters are defined as any legislator who voted in favor of UCITA, his or her office staff, any attorney who has drafted a license that depends on UCITA, anyone who has authorized the use of such a license or paid to have one written that is actually in use. For the purposes of determining control, corporate executives will be deemed to have control of the computers used by their companies. This license, even if it is subsequently found to depend on UCITA in anyway, is not subject to this provision.
Remember, if this clause could hold up, then a clause in a proprietary license forbidding you to use it on a dual boot machine with free software could hold up as well.
The net will not be what we demand, but what we make it. Build it well.
Why reverse engineer existing software and protocols? The Open Source community styles itself as the most talented as well as innovative group of programmers ever to assemble.
Why copycat evil closed source software as opposed to creating your own open standards?
If the Open Source community really is all that it says it is, banning of reverse engineering should be no problem. You have numerous open tools, numerous open protocols, make your own software and be happy. Otherwise complaining about Microsoft's lack of innovation is simply hypocritical.
I'd love to provide you with some clickwrap citations but I'd have to meander down to the law school to do it. My Westlaw access is off at the moment and it's 1:10 a.m. so I think the law library is closed for the night. However, the consideration in a clickwrap license is promissory (you promise not to do certain things as set forth in the agreement you averred to have read when you click "I agree"), in exchange for the offeror's consideration of a license. The assent is evidenced by the click. There is no obligation of disclosure in contract law except insofar as disclosure is required to avoid fraud (and when required by statute). Your comment that "you've already bought the software" is off-point, both because until you agree to the license all you've bought is an overpriced "CD Coaster" and because the UCC explicitly entertains the possibility of making a cash sale with undisclosed terms subject to the condition that the buyer can revoke the sale within a reasonable time (10 days, I think, but might be 3) upon discovery that the terms are unacceptable to the buyer.
I don't see where you get that UCITA attempts to allow people to be bound by contracts unaware. A term like the property transfer you sarcastically suggest would be roundly booed down by a court as unconscionable -- and any corporation that actually did that might actually face a derivative action from its shareholders for gross misconduct (the BJR doesn't cover rampant stupidity).
Perhaps someone could provide a clear pointer to the actual text of the UCITA -- I'd be real curious to see how they intend to abrogate the doctrines of assent and consideration, or where they think judges who will go along with it are to be found.
If you purchase software with a undisclosed license at the time of sale, and subsequently discover that the license terms are unacceptable to you, you are entitled by law to return it for a refund. (I wish I could remember the UCC provision for this, but there IS one. I don't have a copy of the UCC handy.)
As for cases on clickthrough, go to your local law library and ask one of the friendly librarians to help you do a law journal search on "clickthrough". Then pull some of the journal articles; there will be plenty of cases in the footnotes.
Well, the problem with a lot of the people demanding refunds for unused copies of Windows is the UCC only gives you "a reasonable time" to claim your refund. I think it's ten days, but it might be three. You can't decide six months after you buy the software that you don't want it and return it for a UCC license-rejection refund.
Your statement "A [sic] EULA attempts to restrict the ways that you can use the software,..." is wrong. An EULA grants the user to the right to use the software, a right which she would otherwise not have. To that end, the GPL is an EULA. It grants the end user the right to use the software under certain (very broad) conditions. You must have a license to use software. If the GPL didn't say "The act of running the program is unrestricted..." then you wouldn't be able to run it at all.
Contracts which seek to prevent a person from speaking are scrutinized closely by the courts, and only upheld when the restraint is clearly reasonable. NDAs are permitted because the person presumably goes into them with their eyes open and receives substantial economic benefit as consideration. Gag agreements as part of settlements receive similar treatment -- but the remedy for breach of a gag agreement is recission of the settlement, not injunction or contempt: the imposition of those penalties violates the First Amendment rights of the gag breaker.
Also, keep in mind that while waiving the right to speak as part of a contract is permissible, using the courts to enforce that waiver make that enforcement a "public action". The court's action in enforcing the agreement is subject to the same strict scrutiny for constitutionality that any other state action which interferes with civil rights is subjected to. Courts can and do refuse enforcement of contract terms when those terms are "contrary to public policy", and the right to free speech is one of the strongest public policies in the United States.
What? UCITA modifies the law of agency, too? Or did you not know that an employee of a corporation can only bind the corporation if she has actual or apparent agency, where actual agency is being actually authorized by the corporation to bind it, and apparent agency is appearing to a reasonable third person as being an agent of the corporation, able to bind it. Note: reasonable person, not reasonable computer. If Judy in the secretarial pool clicks on a click-through license, that won't bind the corporation to anything because Judy is neither an actual nor an apparent agent of the corporation.
Article I, Section 9 only applies to Congress (not the States), and further has been interpreted as only to have application to criminal law.
"If Judy in the secretarial pool pirates software, nobody questions the company's liability." That's because copyright infringement is a tort -- you can hit the company for negligent supervision and hold them liable, or use agency theory in tort where agency is given a broader read. However, we were talking about breach of contract, which is not a tort.
BTW, most managers are not agents either, or only have limited agency. By default, the only individuals who are agents for a corporation are its directors, its officers, and its counsel of record.
Clickthroughs are already enforceable (there's a long line of cases on this) and the First Amendment makes it impossible to prohibit criticism of software (there's an even longer line of cases on that).
So I guess the real issue here is reverse engineering, and whether a contract which grants a software license in exchange for a promise not to reverse-engineer the software should be enforceable. Right now it is: contract law allows virtually anything except for that which "shocks the conscience." So a law which memorializes the common law may not be a step in the right direction, but it's not a step in the wrong one, either.
As to the poster who talked about "one-way" contracts: the problem is you need a license to use software. When you buy commercial software, you gain title to the "CD Coaster" and a license to use the software. Licenses are revokable at any time unless supported by consideration (which, in the case of a software purchase, is cash). When a license is supported by consideration, the license is revokable for breach of the contract of sale, and, as I mentioned earlier, the common law of contracts already allows virtually anything to be "consideration".
The real solution to this problem is to get Congress to amend the Copyright Act to make it clear that no license is required to USE software -- only to copy, distribute or modify it. This would make software more like a book. You don't need a license to use a book, after all.
Ok, I just read the article again. Let's see.
Of course, this is a secondary analysis from an article that was probably written without advise from legal counsel. I don't know where to find the text of this proposed law (was it authored by the American Law Institute like most uniform encodings, or is it a freelance effort?), so I can't give a more meaningful commentary.
definitely don't buy any software from any companies that are supporting UCITA is a start. tell your friends not to either.
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in a world of deceit, open your eyes
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you must amputate to email me
i read all replies to my comments
Particularly the UCITA list of articles at http://www.badsoftware.com/uccindex.htm
Yeah, you know you do it too. You, and your U-turn dink!
I think that the right to reverse engineer, heck ,to obtain any kind of information (unless it violates someones's privacy) should be inaliably protected by the constitution. We have an ammendment that protects our right to disburse information, now we need one that protects our right to gather it. Think about it - thechnically "the Matrix" is legal from an information standpoint - you have freedom of speech in the Matrix, you just don't know the information that you could freely speak about. The fact that we live in an increasingly media driven economy should alert us all to the fact that, unless we can protect our right to gather good, truthful information, the Matrix will become real very soon!
I appreciate efforts to Damn The Man as much as the next guy, but I feel a bit apprehensive to going against something which I don't even know what the acronym stands for.
Anyone have any actual legal docs on the UCITA, or for starters, can someone tell me what it means? United Communications In The Ass? Unlimited Corn Industry Task Allowence? Well?
I just hope the rest of the "freedom fighters" know more than I do...
------------
"Okay, who taught the cat how to type ctrl alt delete?"
I'm up in Beautifal British Columbia, Canada. Very often I see stories calling for political action by the free software/open source community. What can I do living in Canada? Any suggestions?
There's no reason for a sig here.
I think also the quantity of laws are showing to have an adverse effect on us. We blindly state that "ignorance is not a defense", yet we continue to pass law after stupid law.
So now it becomes the responsibility (more like burden) of the citizen to learn the laws. In the US, we have city laws, county laws, state laws, and Federal laws,... then we have acts which give certain agencies power to enforce arbitrary laws that they create, without little help from legistlation (OSHA, FCC, FAA, US Treas).
People, they have been passing laws for 200 years! If they don't have it right yet, then something is desperately wrong. We don't need our legistlators in office making new laws. They should be sitting back, and making sure everything is running smoothly.
And these legistlators aren't even representing us. I know a few of you touched on how "we need to change the opinion of the majority". I ask you, what will this do? Here in Michigan, the majority wants our roads fixed,... there are still potholes in my street.
These legistlators are crooks. They are going after the business of corporations. After all, who pays for their campaigns? I think we can say, with great validity, that there exists taxation without representation. This was a large motivation of our first Revolution.
The issue is clear. We need to become more vocal, and i'm not just saying that either. Here is what I am willing to do. I will write my state representative, senator, and congressional representative and inform them of my opinions, further, I will write letters to editors of a few major newspapers and request they run a story on this.
And I urge you to do the same. Because it isn't until we do something that will get The Man's attention, that we can ever expect our opinions to be heard.
We could try to change our licenses to avoid it. But since we don't use shrink-wrap licenses, we cannot override the UCITA default.
What is the GPL but a very restrictive license then?
On a more practical note, if we believed that UCITA would become law tomorrow, what should poor shareware authors do? In particular, suppose one wanted to be legally protected at all costs. I'm concerned about this because I have a GPL'ed package that could, if someone were exceptionally stupid, be used in a medical context. Not being a lawyer, I can imagine a few things it might be good to do now, to avoid having my assets seized. Of course, I hate the idea of doing any of these. But I don't think I would make an effective martyr.
Incidentally, I would really enjoy seeing GNU/Linux systems built from shrink-wrapped components. Can you imagine if every user had to type out the full phrase "yes, i agree to these terms," for each executable before running it the first time? System installation alone would take months.
Anyway, supposing I wanted to limit my liability at all costs. Would the following be good ideas?
1. Withdraw my package, try to identify anyone who might have downloaded it, and do what I can to make sure nobody uses it now or in the future, at least until I can shrink-wrap it.
2. Alter the documentation to indicate that the package's express purpose is to consume disk space by merit of being composed of information. Note that I consider treatment of any of this data as "executable" a severely dangeous step that may result in crashes, the destruction of data, or other undesirable consequences, including death, dismemberment, and destruction. Hope that someone else writes documentation describing the "off-label" uses.
3. Change my name and appearance, convert all my assets to cash, build a remote cabin.
I have to admit, if all this is characterized correctly (again, I'm not a lawyer), it's easily the scariest thing I've read in recent memory. I haven't seen a compelling argument in favor of it -- there seems to be no way anyone could support legislation like this with both reasonable knowledge of the software industry and good intentions. So my guess is that the people who support it are both ignorant and evil. But I'm willing to be enlightened.
dan
Hi!
(BTW--nice job in formatting your reply with HTML. Never dawned on me to use BLOCKQUOTE for, um, quoting....)
Nobody in their right mind will buy commercial TrojanWare. And no sane shrinkwrap producer will even consider shipping TrojanWare--because the immediate consequence of using a back door will be litigation. Anybody in business knows that it isn't the result of litigation that matters--just the fees for going to court will wipe you out. And, as eToys.com is discovering, a little bid of bad publicity can get your stock price hammered.
What the "self help" provision does is permit a vendor to include language in a contract that explicitly permits back doors or other means. I used to work for a company that did it--here's how it works. A lot of mid-priced software, and custom software projects, are sold on "thirds"--one-third of the contract price is due at the start of the project, one-third is due at delivery, and one-third is due thirty days after delivery. Sometimes getting that last third can be a real challenge--if you're dealing with a small company they may simply not have the cash and try to string you out; if you're dealing with a crook they might suggest that you pound sand--they're not paying. In a lot of custom development the vendor discovers that a lot of new features seem to get added to the feature list after he has delivered--"oh, I'm sure there'll be no problem with payment, if you just be sure to add this little thing for us...." That list can go on for months--because they know you need that last third. If the client tries to stiff you for that last third your only recourse is to take the client to court--but if the client is located across a state line you have to sue in federal court, where you have to demonstrate $50,000 in actual damages before you even have "standing" to sue. If you're looking to collect the last $15,000 on a $45,000 job you can try to hire a lawyer in the client's home state--but you might as well forget it. You'll burn through fifteen grand in legal fees before you get to court, so essentially you're screwed.
Unless you use some form of "self help." In the case of my former employer the system checked the date at startup (since this was an order entry system dates couldn't easily be spoofed) and checked a series of parameters to see if the software had been installed for more than 90 days. If it was, the operators would get a screen asking the supervisor to call customer service. Thirty days later, if the system still hadn't been paid for, another screen asked the supervisor to call customer service, as a serious problem exists with the system. (My employer viewed an invoice over 120 days old as a serious problem.) Thirty days later (thus, 150 days after installation, and four months after payment was due) every user logging in was prompted that the system could not function because a bill had not been paid.
We told every prospective client about that feature. To my knowledge it was never used--in part because the clients knew it was there. (We did do some weird stuff at startup if the date was Friday the 13th, but that's another story :-)
In the late 1980s the commonwealth of Virginia banned that kind of Trojan. And all of a sudden you simply couldn't collect that last third from deadbeats in Virginia--and the Virginia deadbeats knew it. The UCITA overturns that law, and similar laws in other states (I don't know if there are other states with similar laws or not).
Couple of additional points: first, my company doesn't use Trojans. We usually provide source code to our customers, and we typically do systems for companies that are large enough that they don't play those kinds of games. Second, the Independent Computer Consultants of America opposed the UCITA, especially the self-help provision. I don't know why, but it is an interesting perspective to this discussion that I'd like to learn more about.
RMS, once again, disappoints me. As the leading light of the Free Software movement he certainly has an important perspective to share on many issues--but in this article he simply reiterates many of the straw-man arguments that others have raised.
Simply put, the spectre of UCITA that he raises is that UCITA permits vendors and buyers to agree to contract terms. UCITA does not, in so many words, legalize Trojan Horses (so-called "self-help measures") without buyer consent. Nobody in his right mind is going to buy a TrojanWare shrinkwrap app. But "self-help" measures permit custom software developers to ensure that they get paid. They can only use self-help if the client agrees to them, in the contract.
Can Microsoft, IBM, Oracle, or another software giant force an onerous contract down your throat? Nope--markets do, in fact, work. In 1989 Lotus had a cast-iron lock on the spreadsheet market, WordPerfect had a lock on the word processing market, and Xerox had a lock on desktop publishing. Lotus 1-2-3 still has a dozen or so users, somewhere; Corel can't give away WordPerfect; and I'd bet most SlashDot users can't even name the erstwhile Xerox product that owned the DTP market. (Hint: Corel Draw was created as an add-on product for it, and Corel now owns it.) Lest you think that Microsoft hegemony can keep a bad product alive, two words: Microsoft Bob.
If you thought the world was going to end on New Year's Eve, you'll probably get panicked by UCITA as well. You shouldn't be--this isn't nearly as scary as the doomsayers are claiming.
From the article:
Some friends of free software have argued that UCITA would benefit our community, by making non-free software intolerably restrictive, and thus driving users to us. Realistically speaking, this is unlikely, because it assumes that proprietary software developers will act against their own interests. They may be greedy and ruthless, but they are not stupid.
This is *exactly* what my English 110 prof is talking about when she brings up "pursuasive writing". I didn't need to be pursuaded to be against the UCITA, but lines like the above quoted sure help get the wankers off the fence. Go Richard!
/me emails Skip Lockwood to see how he can help.
-- Count Spatula: The Culinary Vampire "...because my cooking sucks."
Some other AC mentioned an idea. LET'S let them close reverse engineering and all that other stuff.
We have all the tools we need to create BETTER protocols and BETTER applications then any closed source company could do.
Since most of us use GPL or BSD licenses, our own protocols would REQUIRE closed source companies to publish any changes they make (made). Because of our protection from the open source licences. We could force the closed source companies if we can generate protocols that make the general public/small business companies happy.
I see this as a possibility to isolate companies like Micro$oft and such by cornering them into using OUR OWN OPEN source protocols instead of closed protocols.
I have to agree with RMS on this one.
UCITA is perhaps the worst thing that could happen to the computing profession, and could be very harmful to OSS.
UCITA essentially gives software manufactures the right to ship completely defective, and dangerous, products with impunity. Yes, users could refuse to purchase software with such restrictive agreements, but who actually reads click agreements when they download the latest plug-in or media player.
And Stallman is also right when it comes to the harm to Free Software. Outlawing reverse engineering would kill any chance for a non-microsoft (or friend) to succeed (OSS or not). M$ could develop a new format, stop supporting all the others, and could be the only comp. that produced viewers/editors for such. Anyone who needs compatibility with M$ products (such as allowing IE to view their websites) would be forced to by their software or loose 90% of computer users.
If this becomes law the effects could be devastating.
Check out http://www.badsoftware.com/oppose.htm.
It seems that the MPAA and RIAA have taken vocal stands against UCITA.
I guess they want to eat their cake and have it too (the logical way to phrase that cliche).
Truly a nightmare.
Cem Kaner is a lawyer who's spent years fighting this. (He hates me, but I think he's a good guy.) His web site has a good summary of the situation, although it's out of date. Nobody seems to be tracking where this is in each state legislature, and somebody should be. It has to be opposed state by state now, and it may sneak into law in some states when nobody is watching.
It's not work, it's fun!!! Sheesh, you act like it's a bad thing.
If you can't figure out how to mail me, don't.
For linux tips: http://www.linuxtipsblog.com
Sorry, that should probably read "holding them responsible for their users failure to register their software". Yuck. Too much work...
If you can't figure out how to mail me, don't.
For linux tips: http://www.linuxtipsblog.com
I agree with this. Don't you think RedHat and VA Linux, etc., with their ridiculously high stock valuations, should get together and start to fund something like this?
Bob? Augustin? Anyone???
If you can't figure out how to mail me, don't.
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Then it is FTPPro I am referring to. Thanks for clearing that up. I wasn't one hundred percent sure, and I stated so.
If you can't figure out how to mail me, don't.
For linux tips: http://www.linuxtipsblog.com
You obviously missed my point in a big way.
If it were simply a matter of preventing shareware cheating, that's one thing. First of all, FTOPro is not shareware, it's evaluation software. Second of all, they hold the *ISP* responsible for the actions of users. Now correct me if I'm wrong, but the ISP didn't have anything to do with the user not paying the fee.
It also sends the username and host information to PROFtp, which is, IMO, something of an invasion of privacy.
If you can't figure out how to mail me, don't.
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I found out that ProFTP has been sending nastygrams to ISPs under the DMCA holding their users accountable for not registering their software. (I always get these mixed up, could be FTPPro... find out for yourself. It was on Bugtraq a while ago.)
The UCITA will take this despicable process to the next level. Make no mistake - we are at war with these people. UCITA must not be allowed to pass for the same reason that the offending parts of the DMCA need to be overturned. They're going too far.
If you can't figure out how to mail me, don't.
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Most of the time, what a contract says has nothing to do with how the courts interpret it.
That is why a large number of shrink-wrap agreements are so one-sided.
If you make any representation such as "If it's broke, I'll fix it", when the case actually gets to court, you will find that it is judged according to an entire body of law related to warantees and product liabilities - and you are now liable for a lot of things that you never intended.
To be safe, you can't even say that the CD will make a good coaster. Someone will sue you because his coffee leaked thru the hole in the center.
When you are dancing with wolves, never limp
Yes. To a certain degree. It does not protect the author from writing intentionally malicious content, but if someone does screw up their system using your software, you are covered.
As an example, look at the Debian distros, they say "Debian GNU Linux comes with NO WARRANTY to the extent permitted by the GNU GPL.
Hope that helps.
Munky_v2
"Warning: you are logged into reality as root..."
Jay
FTPPro is a windows application. ProFTPd is an FTP daemon with a GNU license.
I/O Error G-17: Aborting Installation
No one really needs Stallman to realize that UCITA is a bad thing.
And if any software professional is just becoming aware of it now, they need help.
This is just Stallman opening his trap once again. This bad law affects all software, free or not.
Just the Stallmeister looking for more publicity. I wonder who the next boycott is going to be against. The sheep are sure to follow. Pass the kool-aid.
I believe in this situation the same thing applies. Everyone respects the institution of law. The idea of a law based society makes sense for our civilization. The issue is where do these laws come from and how are they used. Are they popular laws created and enforced by the people, or are the laws imposed upon the people. In the case of the birth of America as a free country and of the United States, the laws were imposed by the King and his minions to profit themselves. The people woke up and decided they weren't gonna take getting shafted by the King anymore so they got rid of him and built their own governments. And in the case of DeCSS, UCITA, etc. the laws are imposed by Corporations and their minions. People are starting to wake up.
you have aparently been taught a different version of history than me. I was taught that the colonists hated the king. I don't understand how you mention the civil war, that was after the colonists rebelled.
I have a feeling that if the UCITA passes that a lot more children will be buying 1000 dollar software suites, if their under 18 the legal system would be hard pressed to enforce any contract they entered into, including the shrink wrap contracts. I can see it now:
... do you know what that is?"
Father: "Alright now son, go into Discount Computer Store and buy daddy the Mega-Debugger Suite Advanced 2001 Professional Addition."
Father shows his son the picture in the add.
Child: "Otay daddy"
Child Walks into the Discount Computer Store
Store Clerk: "Are you lost little boy, where is your daddy?"
Child: "I wanna buy dat!"
Child Points to the Mega-Debugger Suite Advanced 2001 Professional Addition box.
Store Clerk: "Um
Child: "Un-uh. Dat is Mega-Debuuga Sweeet Adwanced two-tousand 'en one, Professional Ah-ddition."
Store Clerk: "Do you know what it does?"
Child: "Nope. But I wanna buy it, will dis be enough mister?"
Child pulls out large wad of cash, the store clerk eyes light up.
------------------
Hephaestus_Lee
"[Y]our wise men don't know how it feels to be thick as a brick." -- Ian Anderson
Some people seem to believe that the GPL is somehow related to shrink-wrapped licences. It is not even close, either legally, morally or factually.
The GNU GPL is a copyright notice. As such, like any copyright notice, it covers modification and distribution only. There is nothing in the GPL about usage. The GPL even states that usage is not governed by its terms. You can therefore do whatever you want. You have no obligation to anyone.
Of course, if you want to distribute or modify it, you have to do so under the terms of the license. Not because you signed it or used the software, but because due to copyright law, the license is your only permission to do so.
That is an important part: since the GPL is just a copyright notice, it only covers only usage and modification. Contrary to popular belief, you do not have to agree to the GPL before using GPLed software, and are not bound by its terms simply by using the software.
Shrink-wrap licenses are not copyright notices. They are contracts. Contracts as in "I signed on a new mortgage", "I got married" or "I signed a NDA". And contracts can cover a LOT of ground, much more than mere distribution of modification.
With shrink-wrap licenses, you basically end up with legal obligations towards the other party. And with UCITA, shrink-wrap licenses can apply to internet content (articles and such) and be retroactively modified.
Question: do you really want to have legal obligations towards every news site you visit that feels like it? Remember, hitting the "Back" does not mean you never visited the site, never broke the "shrink wrap".
Well, I don't. Regardless of whether or not that power would be misused. But I'm in luck: I don't live in the US. If I did, I probably would be writing to my elected representatives, right now.
Dislike the GPL, if you must... But at least know it for what it is: a copyright notice, nothing more, nothing less.
Article 1, Section 9, U.S. Constitution:
"No bill of attainder or ex post facto law shall be passed."
If the previous law allowed a license that would allow the original creator to give up responsibility and authority to that product, such that it would no longer be under his or her domain after transmission, then any law that retroactively placed responsibility on the creator for a product the previous law had allowed him or her to give up the ability to prevent redistribution of would necessarily be an ex post facto law.
WARNING: there is a trojan on your
Excuse me if I seem ignorant, but how does the GPL prevent software authors from indemnifying themselves from legal woe if something goes wrong when the software is used?
VoodooBïrd
The article states
"But amateurs, and self-employed contractors who develop software for others, will be often be shafted because they didn't know about this problem. And we free software developers won't have any reliable way to avoid the problem.
Ignorance is not really any defence. Just because I don't know it is illegal to kill people, does not mean that I shouldn't be held accountable for my actions. There appears to be nothing stopping the addition of a licensing agreement to new releases of software, indemnifying the author against any liability as a condition of use.
Article goes on to state: "But we can't do this retroactively for software we have already released. Those versions are already available, people are already licensed to distribute them in these states--and when they do so, under UCITA, they would make us liable. We are powerless to change this situation by changing our licenses now; we will have to make complex legal arguments that may or may not work. "
What, prey tell, indicates thet the new UCITA would be retroactive? I don't see how it could apply to software released before its inception, which would indemnify authors of previously released software to the extent that they had benn indemnified previously.
VoodooBïrd
the problem with relying on the courts is that they are so unpredictable. not only that, they are slow. if this does get passed, it could be winding its way through the courts for years, all the while on the books and enforcable.
The biggest problem with this entire thing is that those who have the most to gain, also have the easiest means to make the law come about. consider these premises:
1) The people actually passing the laws (congressmen, legislators) know very little about computers, and so in an odd (ironic) way they really don't have a way to know the benifits/dangers from this law.
2)The lawmakers are going to try and become informed about this, but will turn to the very software makers that benefit most from this law for that information.
3) Money buys influence in Washington. (how much could Micro$oft "contribute").
Conclusion: So, the Law Makers are going to have a financial stake in being influenced by those who benefit
Now think about this pemise:
1) In many people's minds "open software"="freesoftware"=cheap bastards. That is to say that a lot of people see the open source movement being led by people who just don't want to have to pay for what someone else worked hard to make.
2) Again, in many people's minds "opensoftware"=hacking=criminals. I could ad to this, but I think we've all seen enough mainstream news stories about "criminal hackers" and not enough about "hackers as programs who give away their source code.
3) The Opensource/Freesoftware Community isn't the richest community out there, and there isn't a lot for "campaign contributions".
conclusion: The large corporations can portray the opensource community to the uneducated (in these matters) law makers as whinny criminals who bring nothing to the table.
Im not trying to say its all about money here, but Money at least buys access to talk to these guys. And, perceptions are important. And, the Legislators really don't know enough yet about this issue to vote yet. Just think about this. Go out and read all the news stories in the mainstream press (the ones these legislators read) and see what they say about opensource and about the DVD issue. Now you think what they WILL think.
The best way to counter this is with "clear information" This means sending polite and informative emails to legislators with links to news stories, even news posts about this issue.
It's our world now. But how can we really say that if we don't speak up once in a while.
"I mean, All you can definately say about a fellow who thinks he's a poached egg, is; He's in the minority." James Burke
This, as far as I know, is the actual text for the UTICA. http://www.law.upenn.edu/bll/ulc/ucita/ucitanc.htm
Take a look - it's long, but those of us who ARE lawyers might be able to give us some valid opinions as to what we should expect. The Q&A they have on the NCCUSL site http://www.nccusl.org/pressrel/UCITAQA.HTM says warranty stuff now apples to ALL software.
Implied warranty of merchantability. An implied obligation that a computer program will be fit for the ordinary purposes for which it is used. UCITA makes this warranty applicable to all computer programs, thus expanding the scope to software currently governed by common law, which does not have this warranty. Section 403.
Does anyone know if the authors of this even know of the existance of free software? The warranty should only be enforcable if you actually PAY for the software. I paste that section (as well as all of Part 4) here for consideration.
PART 4
WARRANTIES
SECTION 401. WARRANTY AND OBLIGATIONS CONCERNING NONINTERFERENCE AND
NONINFRINGEMENT.
(a) A licensor of information that is a merchant regularly dealing in information of the kind warrants that the information will be
delivered free of the rightful claim of any third person by way of infringement or misappropriation, but a licensee that furnishes detailed specifications to the licensor and the method required for meeting the specifications holds the licensor harmless against any such claim that arises out of compliance with the specification or required method except for a claim that results from the failure of the licensor to adopt, or notify the licensee of, a noninfringing alternative of which the licensor had reason to know.
(b) A licensor warrants:
(1) for the duration of the license, that no person holds a rightful claim to, or interest in, the information which arose from an act or omission of the licensor, other than a claim by way of infringement or misappropriation, which will interfere with the licensee's enjoyment of its interest; and
(2) as to rights granted exclusively to the licensee, that within the scope of the license:
(A) to the knowledge of the licensor, any licensed patent rights are valid and exclusive to the extent exclusivity and validity are recognized by the law under which the patent rights were created; and
(B) in all other cases, the licensed informational rights are valid and exclusive for the information as a whole to the extent exclusivity and validity are recognized by the law applicable to the licensed rights in a jurisdiction to which the license applies.
(c) The warranties in this section are subject to the following rules:
(1) If the licensed informational rights are subject to a right of privileged use, collective administration, or compulsory licensing, the warranty is not made with respect to those rights.
(2) The obligations under subsections (a) and (b)(2) apply solely to informational rights arising under the laws of the United States or a State, unless the contract expressly provides that the warranty obligations extend to rights under the laws of other countries. Language is sufficient for this purpose if it states "The licensor warrants `exclusivity' `noninfringement' `in specified countries' `worldwide'", or words of similar import. In that case, the warranty extends to the specified country or, in the case of a reference to "worldwide" or the like, to all countries within the description, but only to the extent the rights are recognized under a treaty or international convention to which the country and the United States are signatories.
(3) The warranties under subsections (a) and (b)(2) are not made by a license that merely permits use, or convenants not to claim infringement because of the use, of rights under a licensed patent.
(d) Except as otherwise provided in subsection (e), a warranty under this section may be disclaimed or modified only by specific language or by circumstances that give the licensee reason to know that the licensor does not warrant that competing claims do not exist or that the licensor purports to grant only the rights it may have. In an automated transaction, language is sufficient if it is conspicuous. Otherwise, language in a record is sufficient if it states "There is no warranty against interference with your enjoyment of the information or against infringement", or words of similar import.
(e) Between merchants, a grant of a "quitclaim", or a grant in similar terms, grants the information or informational rights without
an implied warranty as to infringement or misappropriation or as to the rights actually possessed or transferred by the licensor.
SECTION 402. EXPRESS WARRANTY.
(a) Subject to subsection (c), an express warranty by a licensor is created as follows:
(1) An affirmation of fact or promise made by the licensor to its licensee, including by advertising, which relates to the
information and becomes part of the basis of the bargain creates an express warranty that the information to be furnished under
the agreement will conform to the affirmation or promise.
(2) Any description of the information which is made part of the basis of the bargain creates an express warranty that the
information will conform to the description.
(3) Any sample, model, or demonstration of a final product which is made part of the basis of the bargain creates an express
warranty that the performance of the information will reasonably conform to the performance of the sample, model, or
demonstration, taking into account differences that would appear to a reasonable person in the position of the licensee between
the sample, model, or demonstration and the information as it will be used.
(b) It is not necessary to the creation of an express warranty that the licensor use formal words, such as "warranty" or
"guaranty", or state a specific intention to make a warranty. However, an express warranty is not created by:
(1) an affirmation or prediction merely of the value of the information or informational rights;
(2) a display or description of a portion of the information to illustrate the aesthetics, appeal, suitability to taste, subjective
quality, or the like of informational content; or
(3) a statement purporting to be merely the licensor's opinion or commendation of the information or informational rights.
(c) An express warranty or similar express contractual obligation, if any, exists with respect to published informational content
covered by this [Act] to the same extent that it would exist if the published informational content had been published in a form
that placed it outside this [Act]. However, if the warranty or similar express contractual obligation is breached, the remedies of
the aggrieved party are those under this [Act] and the agreement.
SECTION 403. IMPLIED WARRANTY: MERCHANTABILITY OF COMPUTER PROGRAM.
(a) Unless the warranty is disclaimed or modified, a licensor that is a merchant with respect to computer programs of the kind
warrants:
(1) to the end user that the computer program is fit for the ordinary purposes for which such computer programs are used;
(2) to the distributor that:
(A) the program is adequately packaged and labeled as the agreement requires; and
(B) in the case of multiple copies, the copies are within the variations permitted by the agreement, of even kind, quality, and
quantity within each unit and among all units involved; and
(3) that the program conforms to any promises or affirmations of fact made on the container or label.
(b) Unless disclaimed or modified, other implied warranties with respect to computer programs may arise from course of
dealing or usage of trade.
(c) No warranty is created under this section with respect to informational content, but an implied warranty may arise under
Section 404.
SECTION 404. IMPLIED WARRANTY: INFORMATIONAL CONTENT.
(a) Unless the warranty is disclaimed or modified, a merchant that, in a special relationship of reliance with a licensee, collects,
compiles, processes, provides, or transmits informational content warrants to that licensee that there is no inaccuracy in the
informational content caused by the merchant's failure to perform with reasonable care.
(b) A warranty does not arise under subsection (a) with respect to:
(1) published informational content; or
(2) a person that acts as a conduit or provides no more than editorial services in collecting, compiling, distributing, processing,
providing, or transmitting informational content that under the circumstances can be identified as that of a third person.
(c) The warranty under this section is not subject to the preclusion in Section 113(a) (1) on disclaiming obligations of diligence,
reasonableness, or care.
SECTION 405. IMPLIED WARRANTY: LICENSEE'S PURPOSE; SYSTEM INTEGRATION.
(a) Unless the warranty is disclaimed or modified, if a licensor at the time of contracting has reason to know any particular
purpose for which the computer information is required and that the licensee is relying on the licensor's skill or judgment to
select, develop, or furnish suitable information, the following rules apply:
(1) Except as otherwise provided in paragraph (2), there is an implied warranty that the information is fit for that purpose.
(2) If from all the circumstances it appears that the licensor was to be paid for the amount of its time or effort regardless of the
fitness of the resulting information, the warranty under paragraph (1) is that the information will not fail to achieve the licensee's
particular purpose as a result of the licensor's lack of reasonable effort.
(b) There is no warranty under subsection (a) with regard to:
(1) the aesthetics, appeal, suitability to taste, or subjective quality of informational content; or
(2) published informational content, but there may be a warranty with regard to the licensor's selection among published
informational content from different providers.
(c) If an agreement requires a licensor to provide or select a system consisting of computer programs and goods, and the
licensor has reason to know that the licensee is relying on the skill or judgment of the licensor to select the components of the
system, there is an implied warranty that the components provided or selected will function together as a system.
(d) The warranty under this section is not subject to the preclusion in Section 113(a)(1) on disclaiming diligence,
reasonableness, or care.
SECTION 406. DISCLAIMER OR MODIFICATION OF WARRANTY.
(a) Words or conduct relevant to the creation of an express warranty and words or conduct tending to disclaim or modify an
express warranty must be construed wherever reasonable as consistent with each other. Subject to Section 301 with regard to
parol or extrinsic evidence, the disclaimer or modification is inoperative to the extent that such construction is unreasonable.
(b) Except as otherwise provided in subsections (c), (d), and (e), to disclaim or modify an implied warranty or any part of it,
but not the warranty in Section 401, the following rules apply:
(1) Except as otherwise provided in this subsection:
(A) To disclaim or modify the implied warranty arising under Section 403, language must mention "merchantability" or "quality"
or use words of similar import and, if in a record, must be conspicuous.
(B) To disclaim or modify the implied warranty arising under Section 404, language in a record must mention "accuracy" or use
words of similar import.
(2) Language to disclaim or modify the implied warranty arising under Section 405 must be in a record and be conspicuous. It
is sufficient to state "There is no warranty that this information, our efforts, or the system will fulfill any of your particular
purposes or needs", or words of similar import.
(3) Language in a record is sufficient to disclaim all implied warranties if it individually disclaims each implied warranty or,
except for the warranty in Section 401, if it is conspicuous and states "Except for express warranties stated in this contract, if
any, this `information' `computer program' is provided with all faults, and the entire risk as to satisfactory quality, performance,
accuracy, and effort is with the user", or words of similar import.
(4) A disclaimer or modification sufficient under [Article 2 or 2A of the Uniform Commercial Code] to disclaim or modify an
implied warranty of merchantability is sufficient to disclaim or modify the warranties under Sections 403 and 404. A disclaimer
or modification sufficient under [Article 2 or 2A of the Uniform Commercial Code] to disclaim or modify an implied warranty of
fitness for a particular purpose is sufficient to disclaim or modify the warranties under Section 405.
(c) Unless the circumstances indicate otherwise, all implied warranties, but not the warranty under Section 401, are disclaimed
by expressions like "as is" or "with all faults" or other language that in common understanding calls the licensee's attention to the
disclaimer of warranties and makes plain that there are no implied warranties.
(d) If a licensee before entering into a contract has examined the information or the sample or model as fully as it desired or has
refused to examine the information, there is no implied warranty with regard to defects that an examination ought in the
circumstances to have revealed to the licensee.
(e) An implied warranty may also be disclaimed or modified by course of performance, course of dealing, or usage of trade.
(f) If a contract requires ongoing performance or a series of performances by the licensor, language of disclaimer or
modification which complies with this section is effective with respect to all performances under the contract.
(g) Remedies for breach of warranty may be limited in accordance with this [Act] with respect to liquidation or limitation of
damages and contractual modification of remedy.
SECTION 407. MODIFICATION OF COMPUTER PROGRAM. A licensee that modifies a computer program, other
than by using a capability of the program intended for that purpose in the ordinary course, does not invalidate any warranty
regarding performance of an unmodified copy but does invalidate any warranties, express or implied, regarding performance of
the modified copy. A modification occurs if a licensee alters code in, deletes code from, or adds code to the computer
program.
SECTION 408. CUMULATION AND CONFLICT OF WARRANTIES. Warranties, whether express or implied, must
be construed as consistent with each other and as cumulative, but if that construction is unreasonable, the intention of the parties
determines which warranty is dominant. In ascertaining that intention, the following rules apply:
(1) Exact or technical specifications displace an inconsistent sample or model or general language of description.
(2) A sample displaces inconsistent general language of description.
(3) Express warranties displace inconsistent implied warranties other than an implied warranty under Section 405(a).
SECTION 409. THIRD-PARTY BENEFICIARIES OF WARRANTY.
(a) Except for published informational content, a warranty to a licensee extends to persons for whose benefit the licensor
intends to supply the information or informational rights and which rightfully use the information in a transaction or application of
a kind in which the licensor intends the information to be used.
(b) A warranty to a consumer extends to each individual consumer in the licensee's immediate family or household if the
individual's use would have been reasonably expected by the licensor.
(c) A contractual term that excludes or limits the persons to which a warranty extends is effective except as to individuals
described in subsection (b).
(d) A disclaimer or modification of a warranty or remedy which is effective against the licensee is also effective against third
persons to which a warranty extends under this section.
"I object to doing things that computers can do." -- Olin Shivers, lispers.org
17 USC 117 (a):
Sec. 117. Limitations on exclusive rights: Computer programs
(a) Making of Additional Copy or Adaptation by Owner of Copy. - Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
Does 17 USC 117 (a)(1) not mean what it says? if a copy is necessary for the item to be used then it is allowed. The section is entitled Limitations on exclusive rights: Computer Programs.
I would hope that courts would not ignore this part of the law. The making of a copy without a license would be infringement under section 106, but section 117 overrides it explicitly. I am not a lawyer, but I think common sense would tend to argue for this interpretation.
Just because it CAN be done, doesn't mean it should!
What about books like "Windows for dummies?" You are saying windows is too hard to use. We'd have to cut out half of the slashdot comments. :)
Fight Spammers!
There are many people who consider anyone who fights the system to by crackpots.
Fight Spammers!