Court Addresses Legality of Shrinkwrap Licenses

NullProg writes "This article here comments on a legal case where a shrink-wrap license may be binding. This a scary precedent for any developer who has added a feature to their software already present in a competitors version."

Comments

Re:Why not?

[Anonymous Coward]

Actually, nobody makes a big deal about the GPL - if you choose to regard it as invalid, then you have NO rights granted to you - you cannot make copies, redistribute, blah blah blah. So actually, if you choose to accept the GPL, your rights are extended.

Software licenses are stupid anyway. I don't see the need to sign an agreement when I buy a CD, book, or newspaper. Why software?

Re:Why not?

[Palarran]

Because the GPL agreement adds rights, whereas most shrinkwrap agreements subtract rights from those provided by US law.

A contract that I 'freely' enter into, in which I agree to become your property would be legally invalid, as an example. Certain rights cannot be waived. Not that I think the rights involved are inalienable, just that they shouldn't be so easily and totally abbrogated.

The arguement that you own the CD, but must be given additional rights to copy it to your computer, or into memory, is specious. US Law provides that such acts as required for basic use of a purchased product are not cases of copyright infringing behavior.

Re:Why not?

[SquadBoy]

"Should a closed source vendor be able to look over GPLd software code to see how something was done with the intention of using it in their products?"

No of course not and neither should anyone else be able to steal code. But this is about reverse engineering. And yes closed source vendors should have the right to reverse engineer any feature in any piece of software they see. But keep in mind that in order to reverse engineer something and be legal you have to have *never* seen the code. So the GPL and the BSD licenses are friendly to reverse engineering because the only thing those two licences concern themselves with is the code. This is not the case with shrinkwrap licenses. Without reverse engineering I would dare say that very few of us would have tech jobs just because things would never have moved as fast as they have. Also odd as it is to say MS should be on the right side on this fight because without reverse engineering they would not be around today. In short next time read the article before posting flamebait.

Good Motivation for Open Source?

[serutan]

At the extreme end of the spectrum, a world completely without the concept of intellectual property would also be without the overhead incurred by all this bickering. Does open source cut out most of this crap or just create new varieties?

Re:Good Motivation for Open Source?

[WetCat]

If you get your money from selling IP - then I'll be happy if you'll get that you deserved. Welcome to teaching, cattle feeding, heavy-equipment driving, even creation of software drivers for refridgerator door - get your money for doing REAL work. But not for artifical lawyer-inflicted burden named "intellectual property".

This is absurd

[tubabeat]

Forget the shrink wrap, follow this through and they'll be saying GM reverse engineered Ford because they create vehicles which look similar. Well maybe they did, but how can you have any kind of competition if the resulting product has to be totally original?

Most things aren't invented, they evolve.

Re:Why not?

[DDX_2002]

Okay, IANAL, but:

Ignorance of THE LAW is no defence - the latin maxim is ignorantia juris non excusat - which means you aren't entitled to violate the copyright act/DMCA/whatever just because you haven't read them.

That doesn't mean that you can necessarily be held to contractual terms you haven't read or had brought to your attention. Contracts are bargains between two rational parties and are entirely voluntary. If you and the other guy don't come to an agreement, you don't have a contract. OTOH, the whole point of statutes is that they're not voluntary. In the case of the book, they can print whatever they like on the front cover, books are covered by the first sale doctrine and I can do what I please with the physical item. I can't make copies, except within the fair use exceptions, but that's a matter of copyright statutes not contract law.

The other problem with claiming a book license is that I have no relationship with the author or publisher so there's no privity of contract. If they shrinkwrapped it, so that I had to agree to certain rights to get the right to open the package and read, then you'd have something.

Fortunately, I've protected myself from EULAs

[Aexia]

with a Door-User License Agreement. By walking through my door, anyone, including the BSA, agrees to free me of any obligation due to a EULA or similar license agreement.

That way, if they try to claim that I'm bound by their EULA because I allegedly clicked a button after buying the software, I'll have an equally valid counter claim that they freed me of their's by actually walking through my door. Not my fault they didn't read all the terms and conditions before using my doorway!

The DULA is posted on the *inside* of the door, of course.

Illegal to learn.

[FyRE666]

This is becoming ridiculous (actually the line where "ridiculous" starts was left behind several years ago I guess). As the article points out, reverse engineering is commonplace, and helps all software evolve and improve. The ruling effectively makes it illegal for any company, or individual, to learn and improve their products if their improvements have already been implemented by another company.

So a few decades ago, if someone had thought to use a switch block instead of 10 if{}else statements, it would prevent anyone else doing the same. Or maybe Carmack could have put the smack down on anyone else using unchained modeX and raycasting to create an fps.

Really, if the patent/copyright situation of today were in place 200 years ago, we'd still be riding around in horse-drawn carts and reading books (presuming said book was our own personal copy, not to be shared by any other family or friends) in our hovels at night by candlelight today. When are these companies going to realize that this pathetic squabbling is just serving the soul-less, grinning, moneygrabbing lawyers and they're just digging themselves into trenches so deep they'll never make it out again?

Absurd Statement Re: Intellectual Property

[reallocate]

The least I can say about such an absurd statement is that it is utopian.

Developers writing code are creating intellectual property. Do you want them to stop developing?

Artists create art that is intellectual property. Do you want them to stop creating art?

Authors writing books are creating intellectual property? Do you want them to stop writing?

Don't even think about claiming that "real" creators would continue to work for free. People need and expect -- and have every right to expect -- to derive revenue from the work they do. The nature of the work is irrelevant. Someone who creates IP has just as much right to be paid as your odd example of someone driving heavy equipment -- who creates a hole in the ground. Lawyers are available to both in the case of non-payment.

This kind of unreasoning antipathy to IP smacks of someone who thinks corporate lawyers invented it 5 minutes ago simply to keep him from stealing music.

Re:Absurd Statement Re: Intellectual Property

[gilroy]

Blockquoth the poster:

Don't even think about claiming that "real" creators would continue to work for free. People need and expect -- and have every right to expect -- to derive revenue from the work they do.

No, they don't. No one has a "right to expect to derive revenue". Hypothetical: I just punched six holes in the concrete blocks in my apartment. I think it's art. I also think that you're obligated to pay me for my art. After all, I have "every right to expect to derive revenue from the work" I do.

Of course this is just silly. Unlike grammar school, you aren't rewarded for effort. You are rewarded for success -- for providing a good or service at a price someone else is willing to pay. If you can't add value using your business model, then too bad... you don't deserve some handout to enable you to follow your model.

The guy digging a hole doesn't deserve a paycheck, either, unless there's someone who wants a hole dug enough to pay him. Or do you suggest he go around digging holes in people's lawns and demanding money?

The issue here, as with all intellectual output, is: To what extent should the state enforce a framework under which you can make money writing software? Because in the state of nature, you wouldn't be able to... it's too easy to replicate -- far easier than to create -- and so you couldn't sell your software. Someone could always buy one copy and then undercut your price.

We invent intellectual output law to create an artificial scarcity. This pumps up the value of the output. In return, the public expects this to encourage to production of new and better works, since there is an incentive. If the shrinkwrap license punishes legitimate reverse engineering and other competitive tactics, then it's pretty clear that the public's need is not being met. And in this case, the public should take its football and go home...

I don't know if "real people" create for free. I've seen a lot of damn fine amateur work, made with no hope of compensation and for no gain save the sheer joy of creation. And of course, Mozart went on composing even though no copyright law existed in his day. Of course, that meant he didn't make money off copies; he had a different model.

The field of intellectual output -- and the just compensation for such -- is much more complex than you seem to wish.

Re:Absurd Statement Re: Intellectual Property

[RealAlaskan]

This kind of unreasoning antipathy to IP smacks of someone who thinks corporate lawyers invented it 5 minutes ago ...

It wasn't five minutes ago, but intellectual ``property'' [1] as it exists today is very recent. It is certainly less than 100 years old.

The important point is that art, literature and science proceded for centuries without I``P'', and reasonable people today are making the argument that our current copyright and patent laws are, on balance, impeding the progress of art, literature and science. Look in a recent issue of Forbes (the Socialist Tool) for some non-techincal discussion of that.

[1] Intellectual Property, like flying pigs, simply can't be found in nature. It is a construct of government, allowed but not required in the US by our constitution.

Re:Absurd Statement Re: Intellectual Property

[gilroy]

Blockquoth the poster:

I own what I create until I transfer ownership to another party.

And no one is taking that away from you... you still have your original file, picture, whatever. However, that is not the "property" of "intellectual property" -- or at least, it's not the bit that has everyone in an uproar. Your statement seems to imply that you have a natural right of ownership in the nebulous idea behind the program; in its very form and not just the particular bits on your computer.

I would argue that you have no such natural property right -- that in fact no natural intellectual "property" right exists ever. You have the manufactured copyright, which is a legal fiction enacted by the state to advance the public's interest in a vibrant creative field and a growing public domain.

Intellectual "property" law is based on a fiction, which explains why all justifications of it become so convoluted. Due to the unceasing efforts of the Content Cartel, we are trying harder and harder to match an inappropriate legal model -- physical property -- to an increasingly non-conforming phenomenon (intellectual output). Despite what Ecclesiastes tells you, there is something new under the sun... Intellectual output as a vast and growing fraction of the economy is a new phenomenon (perhaps two centuries, at best), and it is far from clear that old models will be applicable.

So... the state creates copyright, which purports to give you "ownership" of your intellectual output in all its expression. This mechanism is intrinsically a fraud, but has historically been a benevolent fraud. It didn't distort things too much, it created incentives to create, and seemed to more or less "promote the Progress of science and Useful Arts". The digital revolution has stripped away the incidental physical trappings that always tagged the production and distribution of intellectual output. This has, more or less by accident, revealed the intrinsically fictional nature of intellectual "property" -- ironically, just as that term gained adherence.

What we face now is a radical usurpation of power on the part of certain parties, callously upending centuries of common agreement and hoping, by throwing the framework into chaos, to cement the relatively new concept of "property" rights in intellectual output... Perhaps purely by chance -- but likely not -- this is done in such a way as to freeze-in current dominant corporations and to commoditize intellectual output. But what they have opened up (certainly without intent or willingness) is a complete re-examiniation of the whole intellectual output regime -- a review by (one hopes) an informed citizenry to ensure that the public's interest in the copyright/trademark/patent bargain is being guarded.

Would that such would occur...

Please read the linked article

[xigxag]

The article concludes by making the excellent point that if the United States chooses to cripple its technological development by the means of overly restrictive intellectual property licenses, it will eventually see the torch of intellectual leadership pass to other nations.

This can't be stressed enough. Most people don't understand what's wrong with e.g. some company owning the rights to jpeg practically forever. The average American couldn't care in the slightest about such things except insofar as IP laws prevent them from downloading mp3 files. We (Americans) really need to convince our friends, neighbors, Congresscritters, etc., that such laws are really a disaster for the country as a whole...because, er, otherwise...the terrorists have won!

It no longer matters...

[Lumpy]

I have came to the realization that I am a criminal in their eyes. and I give up, I throw my hand up and surrender.. and I ignore and blateltly violate their EULAS and the corperate laws. Screw em. It's only a matter of time before Open Source and Linux/BSD is deemed illegal because it is a circumvention device. So I decided that I am not going to abide by any of their EULAS. I ignore them and intentionally violate them! the software police can kiss my ass, I dont care anymore. I use a very tiny bit of non-free software... but I guarentee that I violate the EULA in one way or another. so I digress and I no longer care.

Screw em. screw em all... I now take the stance that anyone using software that has an EULA is a criminal, as I am a criminal... and us thieves will go on doing what we want and hoping and praying that they dont come knocking on our doors looking for our software.

I give up. Innovation is dead, thought is dead, freedom is slavery.

I really hope they're happy now... as they are creating a gigantic number of criminals by persuing their current path.

Re:It no longer matters...

[bnenning]

I really hope they're happy now... as they are creating a gigantic number of criminals by persuing their current path.

I know Ayn Rand isn't popular around here, but this seems appropriate:

"There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws." - Ayn Rand, Atlas Shrugged

??AA and BSA types want there to be lots of "criminals"; this gives them more ammunition for anti-consumer laws "needed to stop piracy". These laws in turn create more criminals; rinse and repeat.

Contracts of adhesion

[yerricde]

It's a contract and you agreed to it, plain and simple.

A contract where one or more of the parties has no bargaining power, a "take it or leave it" contract, is called a "contract of adhesion". Many jurisdictions limit what rights can be waived in such a contract.

Re:Why not?

[psamuels]

What happends when you look at the code of a program under the gpl. Can you ever write a simulair program without having to place it under the GPL?

It has always been the position of any free software advocate I've ever heard from that this sort of thing is ridiculous.

In the proprietary software world, sure, people are afraid of being sued because their IP was "tainted" by having seen someone else's IP. And certainly, at least in many allegedly civilised countries, anyone can sue anyone for any reason, so there is no way to protect yourself 100% from the annoyance of a court proceeding. Novell for one seems to be rather trigger-happy, if you ask Jeff Merkey at least. I suppose it doesn't pay to piss of Apple either, given their legal track record.

So it comes down to whether or not you trust the intentions of the free software camp. Certainly the GIMP people could go out and start suing everyone in sight who made any kind of image manipulation software, just as a fishing expedition, and they would probably lose unilaterally. But the free software culture, as I said, has long been opposed to the legal theory that copyright extends to ideas as opposed to implementations, and to the idea of your brain being tainted by how or where it learned things. I mean, really. Does anyone expect popular novelists never to read each other's works just to protect themselves from suits about adjective placement?

OTOH, since the proprietary software world is so consumed with the idea of IP über alles, we in the free software world know we have to be very careful looking at source code we don't have the right to hack on. Not because the law is on (say) Microsoft's side, but because they could affort to harrass us with a legal stink either way.

Re:Kids

[Danse]

I've heard that question addressed before. I don't remember the exact response, but the short version is that it's not legal if you do it knowingly. How they prove that, I'm not sure. Maybe they ask the kid.