Slashdot Mirror
Washington Supreme Court Upholds Shrinkwrap Licensing
rudedog writes: "According to this Seattle Times article, the Washington Supreme Court has upheld a shrinkwrap license limiting recovery of damages due to buggy software. Apparently, the software manufacturer agreed that there was a bug that cost the plaintiff $1.95 million, but asked the court to dismiss the claim based on the license agreement [which disclaimed all liability]. Kinda answers the old open source FUD question 'who you gonna sue if something goes wrong?'. According to the WA courts, nobody." The opinion is available here, and a dissenting opinion by two of the judges is also available.
Microsoft's "End User License Agreement" assumes that before you agree to it, you have no right to use the software. The EULA, therefore, is phrased as a "license" to use the software. GPL, on the other hand, assumes that you already do have the right to use the software; what you lack, due to copyright law, is the right to redistribute it. The GPL, therefore, is phrased as a license to distribute the software, under certain conditions.
You'll note that you don't have to click on the GPL in order to be bound by its terms when you redistribute GPLed software. Why? Because the GPL is not a contract. The GPL is solely a license. In fact, the GPL clearly states that you do not have to "agree to" it; if you don't want to obey its terms, that's fine -- but if you do disobey its terms when distributing GPLed software, that distribution is a violation of copyright. You may obey the GPL's provisions when redistributing GPLed software, in which case you are within your rights, or you may violate its provisions when distributing GPLed software, in which case you are breaking the law.
(Note, if you will, the difference between agreeing to something and agreeing with something. The latter is an expression of opinion; the former is a declaration that one consents to be bound by a set of terms. Note also the difference between agreeing to something and obeying it. You don't need to agree to the laws against copyright violation in order to be penalized for not obeying them.)
In contrast with GPL and related licensens, proprietary EULAs aren't licenses at all; they're waivers masquerading as contracts. In exchange for the dubious "right to use" the software, they state that you must agree to waive certain rights you would otherwise have. By clicking on the little "I Agree" button, you thereby (supposedly) waive those rights in exchange for the "right to use".
But there is no "right to use" -- or rather, the right to use is inherent in legitimately-granted access to the software.
Consider: If I operate a college computer lab, I grant access to the computers in that lab to any number of students who have not clicked on any "license agreement". What grants these students the "right to use" any proprietary software that may have been (legitimately) installed on that computer? If one has to agree to an EULA to have that right, then those students, not bound by any EULA, are just as illicit as any warez d00d.
My interpretation is that what grants the students the right to use the software is the fact that they came by it legitimately -- that the software was legally installed on the computers (i.e. it was not "pirated") and that they had the right to use those computers.
Similarly, if you legitimately come by a piece of proprietary software -- say, by purchasing a CD containing it in a store, or downloading it from the manufacturer's Web site -- then you already do have the right to use it. You don't have to agree to anything. Go ahead and unzip Microsoft's Kerberos documentation with WinZip, Stuffit Expander, or unzip(1), instead of running the self-extracting archive and seeing the bogus "trade secret" EULA. You already have the right to use it within if you downloaded it legally. (You don't, however, have the right to redistribute it without a license to do so. That's copyright law.)
===
A Parable on Licensing:
Imagine, if you will, that I own a bagel shop and you purchase from me one bagel. You leave my shop; I follow you to the park, where you plan to eat the bagel. Before you take a bite, however, I exclaim: "By biting into that bagel, thus making use of the intellectual property of its recipe, you agree to waive your right to sue me if it contains radioactive waste, cyanide, or dead roaches! I do not grant you permission to eat that bagel unless you agree to these terms!"
Assuming that you do not immediately become disgusted and toss the bagel in my face or the trash can, does your biting into the bagel create an agreement between you and me? Of course not. Did you need my permission to eat the bagel? Of course not. You already had the right to eat the bagel, as you came by the bagel legitimately -- by buying it from me, its creator.
(Little hint, though: You shouldn't buy bagels made by people who want you to waive your right to sue if they contain radioactive waste.)
Underwhelm discusses the very issues I've been beating on for the last ten years: Shrinkwraps are a harbinger of much more evil practices yet to come. One hypothetical situation in my parade of horribles (hi, Andrew!) is the following:
One day, you walk into Sears, and find all the hammers are gone, having been replaced with two hammers: the Craftsman(R) Personal Hammer, and the Craftsman(R) Enterprise Edition Hammer.
Both hammers come in a box with a "license" printed on it. On the Personal Hammer, the license says that you can only use the hammer for personal projects, home repairs on your own home only, etc. In particular, the license forbids you from selling/profiting from anything you use the hammer to build. On the Enterprise Edition Hammer, you are allowed to use it to build stuff for sale, provided you give to Sears 1% of the gross sale price of objects the hammer was used to build.
The Personal Hammer is $35.00; the Enterprise Edition Hammer is $550.00. In all other respects, the hammers are absolutely identical .
According to all the case law out there dealing with shrinkwraps, Sears could get away with this, and would have the right to sue you if you misused "their" hammer.
Some would argue that Sears should be able to get away with it; they should be free to offer their products under any terms they choose, and if you don't like them, you can shop somewhere else. If this argument has merit, then it should be possible to purchase software under different terms.
I challenge anyone here to produce a shrinkwrapped box of closed-source software (a Linux/BSD distro doesn't count) that doesn't come with a "license." Games used to be free of such instruments; sadly, this is rapidly vanishing. Thus, the choice of alternate terms for commercial software, in practical terms, does not exist.
I believe this is an extremely bad state of affairs, and must be corrected.
Schwab
Editor, A1-AAA AmeriCaptions
Software vendors shouldn't be held responsible for their bugs. Why? Because it's pragmatically impossible to create bug-free software when you're dealing with millions of lines of code. Even if it is possible, it is economically infeasible to bring the required level of engineering to every project.
Instead, software vendors should be made accountable for process . Software Engineering is a mature body of research on the processes required to produce solidly engineered code. If Brand X software crashes my computer, I'll just have to live with it unless I find out that Brand X rushed their development cycle, slashed their budget, hired script kiddies to implement last minute hacks, and spent a whopping 10 minutes testing the final product. If that happens, I should be able to sue Brand X into nonexistance.
We could even taken it one step further and imagine a codified set of symbols that software vendors could place on their packages to indicate the level of rigor used during production. Third-party certification agencies could back these claims, and people who sue would only win when the company failed to live up to their published level of rigor. Entrepreneurs take note! There may be a market for this.
-1, Too Many Layers Of Abstraction
The capitalist system has begun an evolution. Spurred by corporate power, we have entered a new economic system I'll call License Economy.
The waning form of capitalism, the one where goods and services are exchanged for units of value, slowly yields to the new capitalism. In the new capitalism there are no goods, only services. Services are services. Goods are services. Maybe even money will be a service.
The necessity for the License Economy is clear--As the digital media companies have discovered, as the complete cost to reproduce a good approaches zero there is no incentive to purchase the good. In order to profit from a "good" in the License Economy, the goods must magically become a service; therefore converting the good into a revokable and scarce commodity, creating "value" where none existed in the economic sense.
The trick is that the License Economy will seep out of the digital domain. Licensing reliably increases margins on every non-consumable good put into the market. After all, isn't the idea behind capitalism that as the domain of the economy expands, the cost to produce a good approaches zero because of competition and trade (ignoring for the moment as economists like to do, the depletion of natural resources)?
e.g.: My client is an architect. The plans he drew for your house are an expensive combination of engineering/drafting school, knowledge of local and national code, and art, too. In fact, so very much went into your house: the blood of the construction workers and the marketing of the mortgage company, that, well, you need to pay a royalty of just 1% of your montly payment to these hardworking artisans in perpetuity. In addition, if you should ever sell the house, this does not negate the hard work and creativity put into building that house, so your buyer will need take over paying the royalties. Should you care to make an addition to the house, well, you will need to run it by the architect--to make sure it is in line with his artistic vision. He certainly has the right to control how his art is used!
What? You want to defraud these craftspeople? How will they make their living?! Etc, etc...
All long-winded allegory beside, as long as descretely ubiquitous licensing is permitted when purchasing software, it will certainly follow elsewhere, mutating goods into services as we relinquish our notions of personal property and of ownerwhip to the corporations. Sure we'll get to buy our toothpaste and other consumables, but the moment we decide to avail ourselves of a product that might stand a change of outlasting us--a corporation will be set to lease it to you, with certain provsions (for example, upon your death posession is transferred back to the parent company... Those ConGlomCo shareholders worked hard hours to assemble those raw materials into a telephone and hey certainly have a right to profit from it in perpetuity!)
NDAs are licenses for knowledge. The corporate battle against the expiry of copyright will continue to encourage the unending license of all recorded works. Oh, and does anyone remember having to lease a telephone from MaBell? Well, that's the work of a pathetic internet startup compared to the intrusions we can expect with corporate oligopolies in every corner of the market. (Here, I'm mostly talking to those pro-monopolists who decry the MS trial with "Back when ATT was in one piece was the last time I could orgasm.")
Ownership is obsolete. The money's in licenses -- and not just because you can disclaim everything under the sun; you can do that, and still own what you're "selling" too!
Does any of this sound strangely like a certain... underappreciated economic model?
I don't need large brains to have a good time.
I remember watching a PBS law special on this type of argument. The main argument was the liability of a "provider of goods" to the consumer. The main case-in-point was a gentleman who chipped his teeth on a pearl he found in an oyster. Should the proprieter of the restaraunt be held liable for any damages?
The argument, and the law, is this: The manufacturer/proprieter cannot be held accountable for any damages encurred from something one could reasonably expect in a good. So...can one reasonably expect bugs to be present in a given program? Unfortunately for the consumer...the answer is a resounding YES. The manufacturer's claim is furthered by the fact that the consumer, in this case, agreed to the terms of the software. While you may not, in a court of law, sign away your rights as a consumer, there is no constitutional, or otherwise, right to bug-free software.
caveat emptor!
FluX
After 16 years, MTV has finally completed its deevolution into the shiny things network
"It is seldom that liberty of any kind is lost all at once." -David Hume