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Court Finds Online Software License Not Binding
An Anonymous Coward writes: "The U.S. District Court ruled on Specht v. Netscape Communications Corp., 00 Civ. 4871, saying that a license that users don't even have to see before downloading online free software isn't binding. Calling these "browse-warp" licenses (as opposed to click-wrap), the court found that since usersdidn't have to look at them, users didn't assent to the terms. Netscape's use of SmartDownload, practice of harvesting information through SmartDownload with out an effective license is now suspect as since there is no license, and no assent, there is no agreement. See a report of the case at Law.com Or try to find the rulings at Find Law."
Perhaps there's another way to view this. Instead of us all cheering "hooray, we're free!" we should be saying "how are they going to MAKE it legal."
If my understanding of the ruling is at all correct, the license was not guaranteed to be read, and therefore was not binding. So, lets say the installer for software is no longer available without clicking through.. The file does not even exist per se, you have to go through a CGI to be served it.
Will this be the death of freely available to download software? Will everything be wrapped in a guaranteed license?
The silly part is, assuming they can say they didn't see the license, what gave them the right to use the software then? They should know it's copyrighted...
Copyright is not (for the most part) about use. It's about reproduction and distribution.
This is why there was (and is) so much uncertainty about "automatic" licenses that limit terms of use -- such terms are outside the scope of copyright law. The only way you could claim legal justification to enforce those terms is to claim that the license is a contract that the user has agreed to. This argument was never, that I know of, tested in court, so a coalition of big players lobbied for UCITA (twice, if you count Article 2B as a UCITA precursor) -- UCITA explicity recognizes shrink-wrap licenses as binding legal contracts.
Copyright law for decades has more or less explicitly (through judicial review) recognized the right of a legitimate owner of an artifact to use that artifact in any way that does not otherwise violate the law. In fact, at its base, copyright law allows anyone to reproduce, or to distribute, but not both. I am free (in theory) to make a thousand copies of a book, and keep them for myself. I am free to buy a thousand books and give them away or resell them. What I am not free to do is buy a book, make copies, and distribute the copies.
Of course as we all know, various industry groups have lobbied for and gotten various medium-specific additional restrictions -- witness the aforementioned UCITA, the DMCA, the Audio Home Recording Act, etc.
-- Old Man Kensey
Well, if you want to be pedantic, then yes, I'll concede that the GPL conditions under which you can make and distribute copies does constitute a "constraint" on that particular form of use.
However, I hope you would likewise concede that shrinkwrap "agreements" are considerably more onerous than the GPL:
Even if, as a software consumer, copying and redistribution are important to you, the GPL is vastly better than commercial shrinkwrap "agreements". And it's cheaper, too!
Schwab
Editor, A1-AAA AmeriCaptions
This is absolutely fantastic news. I find it astonishing that any court would consider these so-called "contracts" valid at all, but we have to take our victories where we can. This could be "camel's nose in the tent" that will lead to the invalidation of all shrinkwrap and clickwrap "agreements". For an explanation of why shrinkwrap agreements should not be allowed to exist, see my five-year-old editorial on the subject.
Those who worry that this decision may weaken the GPL, or any other Open Source/Free Software license, need not fear. Shrinkwrap "agreements" purport to constrain your right to use the software, whereas the GPL simply constrains your ability to copy and redistribute the software. In other words:
Which one is the product of a less childish mind is left as an exercise for the reader.
The effect of striking down a shrinkwrap "agreement" would be that the default terms of copyright law would apply, which is that you would still be free to use your software, and you still wouldn't be allowed to make copies of it, but all the other "rights" the vendor granted themselves would vanish. This means that the spyware the vendor installed on your machine without your consent would now be actionable.
The effect of striking down the GPL would be that you'd still be able to use your copy of the software but, legally, you wouldn't be entitled to make and distribute copies anymore. However, the practical effect would likely be nil. By releasing under the GPL, the authors are representing that they won't go after you if make and distribute copies of the source. It is likely they would continue to make that representation even absent an enforceable GPL. And they would still have the right to go after people who distribute binaries absent source (since binaries are considered a protected derivative work). That means Linus could still go after Microsoft -- and, to be fair, any other organization -- that tried to loot Linux.
All in all, this decision is a good thing for consumers and users everywhere.
Schwab
Editor, A1-AAA AmeriCaptions
Everyone else seems to be making excuses here. To me it is fairly simple. No free software packages that I have ever downloaded make, me click and agree to the GPL. I wont even know it is there unless I go look for it. The author never makes me click and bind to anything. If I am lucky there is a file called GPL or license. If I never look at it. Oh well.. It should be noted that this decision will probably get appealed to US Supreme Court. This decision by a federal judge has very wide implications on what is required for people agree to a license.
Cheers,
Tomas
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And since when do you need permission to use software?
Copyright only controls copying, and i'd say
downloading off netscape's servers is most
surely a legit form of copying, and once you
have legally made yourself a copy, there is no
law to prevent you from using it. Even if you
love copyright, you must admit that this is
the way it should be. Requiring users to implicitly sign a contract to use software is a grievous extension of copyright laws far beyond what is required and far beyond what is reasonable.
Hamsters are at least as feathery as penguins. HamLix
US Copyright law allows you to run software providing you have legally obtained a copy of it.
...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...
--
Business. Numbers. Money. People. Computer World.
I don't see anything really good about the decision, but I don't see anything really bad about it, except the implicit acceptance that click-wrap and shrink-wrap licenses were valid. And if what was said earlier is true, then that is merely an acceptance of currently existing laws. But I sure wish that had been avoided.
And since it's based on California law, it doesn't apply outside of that state.
Caution: Now approaching the (technological) singularity.
I think we've pushed this "anyone can grow up to be president" thing too far.
Do you remember the attempt a few years ago, when a bunch of Linux users attempted to return their unopened copies of Windows. Seems that nobody was willing to accept them back. MS said contact the vendor. The vendor sold them as a part of a package with the computer mfg. The computer mfg. had a contract with MS that said they would sell a copy of Windows with each machine (in return for a steep discount in the pricing). Nobody would accept them back. MS would have been obliged to take them back from the mfg., but then they would have raised their price. The mfg. said that it was a part of the package that they were selling, and wouldn't consider taking them separately. The vendor was (often) selling a sealed box, that had everything already inside.
... It had no connection to the end user. The MS EULA is one where MS PROVIDES NO GOODS. The goods are provided by the vendor, so you don't have any direct right to challenge MS.
So the license from MS promissed to take it back, if it was returned by the person that it was sold to. But that was Dell, or Compaq, or
This would appear to make the contract totally invalid, but if so, how is it able to conduct random searches of businesses and government offices?
Caution: Now approaching the (technological) singularity.
I think we've pushed this "anyone can grow up to be president" thing too far.
I tried to explain to the lawyer at work why I thought that a license was bad. He didn't argue that the license didn't say what I thought it said, what he said was "I'd like to see them try to enforce that!", and the contract was signed.
If this is a correct attitude, then it means that rights are progressively being restricted to those who can afford lawyers.
If this attitude is, as I believe, incorrect, then it means that even those in charge of safeguarding the companies (govt. in this case) don't pay attention to software licenses, as the laws and circumstances that make them more binding increase.
This was one of the events that caused me to begin campaigning for Linux, but so far no converts at work (though a few have started to pay some attention).
Caution: Now approaching the (technological) singularity.
I think we've pushed this "anyone can grow up to be president" thing too far.
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This sig has been temporarily disconnected or is no longer in service
I think this is a fundamental problem with trying to automate contracts. It clearly couldn't happen if all parties involved were conscious beings.
While this is certainly an anti-"web wrap" decision, it's important to understand that the court gets there in part by suggesting that "clickwrap" is OK, then contrasting webwrap unfavorably with clickwrap.
A.Michael Froomkin
Professor, University of Miami School of Law
Coral Gables, FL, USA
I have a blog.
There is no "de facto" license for software. In the absence of an agreement or grant of permission, the full scope of copyright law applies.
That means you may (in the US at least) use the program, make archival copies of it for your own personal use, and reverse engineer it (some jurisdictions don't allow the latter).
A Government Is a Body of People, Usually Notably Ungoverned
Free as in speech wins again... and in the long run will probably save our butts, come the revolution...
No, the point is, what about packages that do NOT prompt you to read the license, you don't even know if there IS one until you look.. but you know the download was free.
The silly part is, assuming they can say they didn't see the license, what gave them the right to use the software then? They should know it's copyrighted...
You made my point for me, I wasn't very clear.
If it's offered as a free download, it's reasonable to assume you can use it. It's also reasonable to assume that it's copyrighted, and that you can't modify it.
What I'm saying it, it doesn't mean that your stuff is automatically public domain if someone doesn't see the license but uses it anyway.
Part of the problem is that there are just way too many variants of licenses, whether OSS or otherwise. Part of the problem is that what browse-through license are is that they are actually a service level agreement e.g. I guarantee such a level of performance, provided you stay within the nominated activity envelope. Given the inherent complexities of computers plus the hair-splitting legal mumbo-jumbo, along with zilch consumer education and you basically get a system which treats license as no more than a disclaimer. With software, it is somewhat easier as you can split them into classes (GNU, BSD, Mozilla) with specific instances (Artistic, etc) with stated variations of terms (e.g. Alaladin is GNU-like but with temporal phase-shift, etc). Unbfortunately the internet world has not really standardised on an equivalent unless you count the MSFU (see the Sexual Practices of Licenses at http://slashdot.org/comments.pl?sid=01/06/21/18102 58&cid=66) which changes every week.
How well can you define a service? Using RDF you can probably specify the functional aspects but how do you nominate remedies for down-time, contacts for contingencies, independent auditing of claims (99% availabilty, etc). Ultimately you're probably see network access like a utility once the standard performance metrics are defined (MByte/sec up/down, latency (up/down) disruption distribution function, etc), and software quality is improved to such a degree that you can provide customer guarantees. But I don't see this happening until there's more localised competition rather than the big media titans duking it out.
LL
"I didn't see a thing. I only clicked the mouse a few times thinking it might turn the display back on, your honor..."
Using a program without consent, to the extent that such use entails copying from disk to RAM, is copyright infringement
Using the same argument reading a book or listening to a CD is "copyright infringement"...
By default, all rights are reserved to the author.
Except that "copyright" does not allow the author to claim any arbitary right. Otherwise the DeCSS case would be about the writers sueing the MPAA for copyright infringement. Had they written a licence which prevents the MPAA and (and any government official in the USA) from even looking at their program.
Here's how it works: You have to copy software from a disk to RAM to use it. This copying infringes copyright. Therefore, you need a license to do it legally.
In order read a book you must "copy" the text onto your retina, thus you need a licence to read. In order to play a CD you need to create "derived work" (as sound waves).
As to your "counterexamples," nobody has yet attempted to make the argument to the court that the residual physiological and electronic images taken by an observer from a book constitutes an actionable act of copying. I imagine they would be giggled out of existence, notwithstanding the point you are making.
You are seriously claiming that software has better "technobabble" than biology? Which is really what is going on here.
All you then need is a judge too stupid to dismiss a case they don't understand.
The "GPL is a distribution license" is a tired distinction as well. Under the copyright act, you may not replicate, distribute or make derivative works. Courts have long held that the loading of a program from disk to ram for execution constitutes exercise of the replication right.
If you had no grant of any right to use, you would be violating copyright just as surely as if you distributed without consent.
Of course, GPL *DOES* state that "The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program)," so you are perfectly OK.
But this is because you have been granted a license to copy the software, at least to the extent necessary to run it.
This is absolutely not true. Under United States law you do not need a "license" to use a program that you have obtained legitimately.
Of course it is true. Using a program without consent, to the extent that such use entails copying from disk to RAM, is copyright infringement. Two exemplary Circuit Court cases are MAI v. Peak Computering and Triad v. Southeastern. I'd be pleased to provide references on request, but you can probably find what you need to know using Google.
Furthermore, you have the right to transfer
or to sell that copy (First Sale doctrine). What copyright restricts is the ability to make extra copies for distribution.
Section 109 does not provide a right to use. See the cases above.
I *also* through the courts upheld that "incidental copies" were legal.
As noted, if by incidental copies you mean copies made loading and execution of the program, no. The MAI and Southeastern cases have settled this question quite clearly.
If by incidental copies you mean copies made for archival or adapting to new hardware purposes, this first requires that you own a lawful copy. Many licenses expressly state that you obtain a license only, with title to the copy remaining with the licensor precisely for that reason. Section 117.
I don't make up the law here, or argue with you what the law should be. I read the statutes and cases and today I am here to say -- this
*IS* what the law *IS*.
As to your "counterexamples," nobody has yet attempted to make the argument to the court that the residual physiological and electronic images taken by an observer from a book constitutes an actionable act of copying. I imagine they would be giggled out of existence, notwithstanding the point you are making.
As to playing a CD, you bet. If you purchased or lawfully obtained possession of a copy, you will be fine by implied or actual license. If I make a copy of the CD, I commit infringement by replication; if I give it to you as a birthday present, I commit infringement by distribution. So far you are clean. Put it in your CD player and hit play, and guess what? You're a prospective defendant.
A vast number of people have been sold ersatz copies of pirated software, many of whom have had no knowledge that the original-looking boxes, labels and pirates certificates and stamps were entirely counterfeit. Guess what? They are all guilty of infringement, a strict liability offense.
You don't have to like this, but make no mistake: this is undoubtedly the way that it is.
These decisions hold very little weight
On the contrary--they hold tremendous weight! An appellate court's role is strictly limited: did the defendant receive a fair trial? Is the law Constitutional? Was the law fairly applied?
Appellate courts don't revisit the facts of the case. They only evaluate the propriety of the trial, nothing more.
Better: get a virus that swaps the function of the "I Agree" and "I Disagree" buttons.
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That might actually be a good thing. If a company wants to screw you, then they can at least be honest about it. Likewise, if a software manufacturer wants to make an abusive EULA binding, then they should require you to sign a contract to that effect before you buy. Making consumers realize how preposterous the terms of these "contracts" are might be a good way of getting them eliminated.
How to solve most of our problems: 1.Lots of nuclear plants. 2.Cure aging.
don't erase, replace with BSD license. I would say GPL, but source isn't availabl;e usually, which rules out the GPL :)
//rdj
No one can understand the truth until he drinks of coffee's frothy goodness.
--Sheikh Abd-Al-Kadir, 1587
...while opening software packages, I'm not bound to the license?
SWEET!
I love the courts sometimes.
Interested in weather forecasting?
Nonsense. The GPL is not a use license, and it does not even pretend that it has to be agreed to for use. The license in this case was one that restricted the rights of the user. The GPL is one that offers more rights than the user otherwise has under the law. It's apples and oranges - the two licenses have nothing in common other than being referred to by the word "license".
"That old saw about the early bird just goes to show that the worm should have stayed in bed."
=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Friends don't let friends enable ecmascript.
Kinda makes me wonder what sort of De Facto license there is on software. As one of the millions of people who've downloaded software under this arrangement, do I still have the right to use it? Is Netscape simply out of luck on some provisions (e.g. do not redistribute)? I'd hate to think that I have no rights regarding the software. Likewise, I'd hate to think Netscape has no rights. Where does a decision like this leave us?
Some people have a way with words, and some people, um, thingy.
The GPL isn't a useage license, it's a copyright license. It doesn't take away any rights you have, unlike the licenses the article talks about, but rather, grants you rights. Different beastie.
Vintage computer games and RPG books available. Email me if you're interested.
But, this does weaken the glance wrap licence agreements. The click wrap, where you are required to click ok (such as on Windows) will be upheld given this standard. But there is another argument to that -- since Microsoft has refused to make refunds, will that click-wrap agreement be found to be void.
The other thought is for 3rd party computer usage. You get a system from the company, your IS person agreed, not you. They may have agreed for the company, but what about your personal data (if you are allowed personal use of the computer)? If you use a system at a CyberCafe, public library, school? The agreement to indemnify, not reverse engineer, etc. would be to indemnify the school, etc -- Not the software publisher!
Fight Spammers!
Another scenario. You are at the libray, you decided to sell a stock at at $150/share. As you press the submit button, the system crashes. You reboot, now the shares are $95.
Another. You are at the library. They have Cyberpatrol loaded. You bypass cyberpatrol and ftp the files to your computer at home. You then reverse engineer the product and make post the list on your website and publish a program to decrypt the next list. Where did you agree not to do that? The people at the library did, but you did not.
Can you be expected to abide by terms of a contract that you never seen and never been made aware of? No, according to this decision.
Fight Spammers!
But not all software has the media separately wrapped`. In many cases the box conatins an unwrapped jewel case. And most places will not allow you to return opened software. I believe that here in Canada, stores are required by law to not accept returns on opened software, so we're screwed when the license only becomes viewable after the purchase becomes irrevocable.
From the judgement :
What we may see after this is even more aggresive, in-your-face presentation of license agreements. Sites just might start resorting to putting 'I Agree'/'I Disagree' links on their index pages (shudder!) as the only legal way to get their audience to agree with their terms of use.____________________________
2*b || !(2*b) is a tautology
1) The judge applies the California Commercial Code to determine issues regarding the formation of the licensing contract. However, that Code only applies to "goods," which are defined as "moveable, tangible objects." It is by no means certain that this definition covers software distributed over the internet.
/. story. The headline certainly doesn't comport with the actual text of the decision.
2) The judge focused largely on the peculiar mechanisms of Netscape's website that distributed SmartDownload to determine that the parties did not assent to the terms contained in the license, because they were not required to specifically assent to anything prior to downloading the software. This contrasts completely with Microsoft's WindowsUpdate, for example, which specifically requires a click-through assent and affirmance prior to download. This distinction will make the impact of the decision limited at best.
3) Finally, this issue arose in the context of a motion to compel arbitration filed by Netscape. It is not completely clear that the plaintiffs utterly failed to assent to any restrictions on their use of SmartDownload, but only that they did not unambigously assent to the licensing agreement that provided for arbitration. This posture could further limit the impact of the decision.
All in all, I'm not really sure this one was worthy of a front-page
--J (yes, IAL)
I'd be a Libertarian, if they weren't all a bunch of tax-dodging professional whiners. - Berke Breathed
Perhaps this court is ackowledging that this situtation is wrong, and that there should be sufficient friction against entering a contract to show the user knew (or should have known) that's what he was doing. Today, that friction is generally signing one's name with a pen. One should not be able to agree to even the most trivial thing with only a click of a mouse.
CEE5210S The signal SIGHUP was received.
what gave them the right to use the software then? They should know it's copy righted...
[My emphasis, of course]
AFAIK (IANAL, AFAIK), the fact that there is no license attached to a piece of software you have obtained (been given) does preclude you from using the software. Copyright law still expressly prohibits you from copying the software for distribution, but I don't think that was the problem in this case. People weren't makeing copies of the StartUpdate installation files, they were just using the software, which is a perfectly legal action in the absence of a license.
Living better through chemicals
I think it's a typo, but having read some of the licenses, "warped" may be a very apropos description...
"Make it ten--I am only a poor corrupt official."
--Captain Louis Renault (Claude Rains), Casablanca
If I release a web app (PHP pages, say) under the GPL, and someone modifies them for their web site, does the GPL obligate them to make the source for their alterations available, since the code isn't distributed, per se?
For example, if a site modifies Slashcode to add functionality to their own site, are they obligated to make the changes available?
--
Convictions are more dangerous enemies of truth than lies.
Convictions are more dangerous enemies of truth than lies.
- Nietzsche
Well, there's a difference between private use and "rebroadcasting" the app on a public web server. I would say a web app on the internet is in some ways the equilivalent of distributing a binary... it's allowing use of a program without distributing its inner workings.
As software becomes more server-centric, I think this'll become more and more important.
--
Convictions are more dangerous enemies of truth than lies.
Convictions are more dangerous enemies of truth than lies.
- Nietzsche
I dunno... it's more than just, say, a word document. If you've got web app that, say, does your taxes, or converts your image files, or gives you a fully-functional word processor, the level of interaction is far beyond that of simply "output". If you or your business were dependent on that functionality, you should have the freedom to have the code so you're not dependent on your service provider.
Although I don't think it should be covered by the GPL; there should probably be a special GPL variant (WGPL?) to cover the special circumstances of web apps.
--
Convictions are more dangerous enemies of truth than lies.
Convictions are more dangerous enemies of truth than lies.
- Nietzsche
But here, we're talking about a web app which has already been released under the GPL. Say someone wrote a GPL version of a Passport-like authentication scheme. Under the current GPL licensing options, Evil Propietary Company could take that code and embrace-and-entend it on their own Passport servers without releasing those changes.
I'm sure lots of Open Source web app programmers would like an option to prevent that from happening to their code; to make sure their code is protected by the same "share and share alike" free software spirit that other Open Source code is protected by.
--
Convictions are more dangerous enemies of truth than lies.
Convictions are more dangerous enemies of truth than lies.
- Nietzsche
Locate your nearest minor and have them install it for you. Minors can't enter into legally binding contracts without a parental co-sign. Plus most judges wouldn't even think twice about the "I had the 14-year old from next door help me" excuse.
However, it does seem that FSF has thought about these things and hopefully they know what they're doing.
Miko O'Sullivan
Miko O'Sullivan
...but it does absolutely nothing about the illegal harvesting of the user's privacy rights online. Is Netscape above the bounds of the Electronic Communications Privacy Act (18 USC Section 2510) or the Computer Fraud and abuse act (19 USC Section 1030)? The Honorable Hellerstien didn't address that in his order.
If by some chance when the court addresses this issue, it might have an impact on 'spyware' that is out on the internet right now (like Gator).
By Monday, tho, My bet is that the Smart Download will have quite a prominate click-wrap license agrteement on their webpage where the software once was.
IANAL...yet.
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Ian
I disable sigs...do you?
>>saying that a license that users don't even have to see before downloading online free software isn't binding. Yeah, but you have to read the license before installation, in most cases. grepper
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Microsoft Fucking Sucks!! Up The Penguins!!
For EULA that you assent to before you open the package. Consider how its similar:
You don't see the license before you assent to it.
This could be a good case to cite it you decide to sue Microsoft at some point.
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Could this be applied to the terms and services links that are common at the bottom of some websites? It seems that if you don't have to view them, they might not be valid. I understand the ruling here, but it could be applied to some other things which aren't necessarily good.