Slashdot Mirror
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."
Why should shrink wrap licenses be any less binding then say the GPL? 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?
"Have you ever thought about just turning off the TV, sitting down with your kids, and hitting them?"
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?
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.
"Linux is a serious competitor"
- Steve Ballmer, Chief Executive Microsoft Corp.
It would appear that this case is very similar to the case where Lotus sued Paperback Software claiming that Paperback Software had breached their copyright by copying their UI. I think in that case there may have been more blatant copying but it seems to come down to a similar issue (it is hard to tell excatly how much was copied from reading the article). There is a bit about the case here and here.
Lets say another person happens to buy the product. Say Aunt Mable. Well Aunt Mable decides to run the product and I happen to look over her shoulder. Can I still reverse engineer?
She is running the programming and looking at it. But she does not work for me. I am actually not running the program, just watching. And because the computer is not mine and I did not install the program am I bound?
"You can't make a race horse of a pig"
"No," said Samuel, "but you can make very fast pig"
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.
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?
Code, Hardware, stuff like that.
Any license which restricts your constitutional rights (e.g. Microsoft's "thou shalt not write a bad review of our software") or other rights (reverse engineering) is unenforceable. You can sign a contract with your landlord that prohibits you from ever having dark people as company, but that part of the contract is unenforceable. IANAL, but run it past yours and you'll find this kind of restraint is bullshit. This will be overturned on appeal.
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.
-- Slashdot: When Public Access TV Says "No"
A contract is an agreement signed by two parties. If I walk into a store and buy a piece of software, I am doing exactly that - buying it. At that point, you have all of the rights that copyright law gives you to the use of that product. Any restrictions applied after the sale are invalid.
-- Give me ambiguity or give me something else!
This is the best answer to "Why would the GPL be more binding than standard click-wrap licenses?" posted here.
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!
There are two kinds of people: 1) those who start arrays with one and 1) those who start them with zero.
So it could be claimed that he learned how to write his code from looking at the GPL code.
You can't copyright an idea. United States copyright law, 17 USC 102, states that "[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work".
Will I retire or break 10K?
I'm sorry, but you really shouldn't base your future code contributions on a badly worded sentence on /..
Copyright law, the only thing which the GPL covers, applies only to a specific work. Example: A painting of a sunset can be copyrighted, whilst "paintings of sunsets in general" cannot. It is not illegal to study a particular sunset painting, then create a sunset painting of your own.
What this means for you and your (likely to remain ) hypothetical GIMP-contributing aspirations is that unless you actually copy the code that implements the features in the Gimp that you like, you have nothing to worry about. "A filter that does X" is not copyrightable. Even conceptual details such as "array of function pointers accessed with menu item id" aren't copyrightable. Thus the GPL doesn't apply to them.
Unless you either can't help but copy the GIMP code (or are too lazy to do otherwise) you have nothing to worry about.
The enemies of Democracy are
The RIAA, Microsoft, and others have done a really good job of portraying the big guns as getting the short end of the stick. The judges, legislators, etc. have adopted a view that end-users are screwing them over (mainly vis-a-vis piracy). With that frame of mind, things like authorizing corporations to crack into people's internet connections and boxes are making sense to them. These licenses seem even more plausible than that, since acceptance of the EULA is optional. We need to both educate our representatives or elect new ones that will realize that certain agreements are completely bogus, draconian, constitute usery, and therefore are illegal. Any contract that steps beyond the bounds of a compensative or mutual agreement and enters the realm of gaining control is illegal--Hollings (sp) knows this, the judges all know this, and we all know this--it's time we made them think about the digital age in the same way.
Slashdot: Where people pretend to be twice as smart as they really are by behaving like children.
Following is the text snippet from Bowers v. Baystate covering the shrinkwrap license: ...
... are governed exclusively by this title." 17 U.S.C. 301(a) (2000). The First Circuit does not interpret this language to require preemption as long as "a state cause of action requires an extra element, beyond mere copying, preparation of derivative works, performance, distribution or display." Data Gen. Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147, 1164, 32 USPQ2d 1385, 1397 (1st Cir.1994) (quotingGates Rubber Co. v. Bando Chem. Indus., 9 F.3d 823, 847, 28 USPQ2d 1503, 1520 (10th Cir.1993)); see also Computer Assoc. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 716 (2d Cir.1992) ("But if an 'extra element' is 'required instead of or in addition to the acts of reproduction, performance, distribution or display, in order to constitute a state-created cause of action, then the right does not lie "within the general scope of copyright," and there is no preemption.' ") (quoting 1 Nimmer on Copyright 1.01[B] at 1- 15). Nevertheless, "[n]ot every 'extra element' of a state law claim will establish a qualitative variance between the rights protected by federal copyright law and those protected by state law." Id.
... simply because a plaintiff must prove that copying was not only unauthorized but also commercially immoral." Id.
/foldoc.cgi?reverse+engineering (last visited Jul. 17, 2002). Thus, the contract in this case broadly prohibits any "reverse engineering" of the subject matter covered by the shrink-wrap agreement.
... remedies."), aff'd in relevant part, 36 F.3d 1147 (1st Cir.1994). In this case, the breach of contract damages arose from the same copying and included the same lost sales that form the basis for the copyright damages. The district court, therefore, did not abuse its discretion by omitting from the final damage award the duplicative copyright damages. Because this court affirms the district court's omission of the copyright damages, this court need not reach the merits of Mr. Bowers' copyright infringement claim. ...
A
[12] Baystate contends that the Copyright Act preempts the prohibition of reverse engineering embodied in Mr. Bowers' shrink-wrap license agreements. Swayed by this argument, the district court considered Mr. Bowers' contract and copyright claims coextensive. The district court instructed the jury that "reverse engineering violates the license agreement only if Baystate's product that resulted from reverse engineering infringes Bowers' copyright because it copies protectable expression." Mr. Bowers lodged a timely objection to this instruction. This court holds that, under First Circuit law, the Copyright Act does not preempt or narrow the scope of Mr. Bowers' contract claim.
[13][14] Courts respect freedom of contract and do not lightly set aside freely-entered agreements. Beacon Hill Civic Ass'n v. Ristorante Toscano, 422 Mass. 318, 662 N.E.2d 1015, 1017 (Mass.1996). Nevertheless, at times, federal regulation may preempt private contract. Cf. Nebbia v. New York, 291 U.S. 502, 523, 54 S.Ct. 505, 78 L.Ed. 940 (1934) ("Equally fundamental with the private right is [the right] of the public to regulate [the private right] in the common interest."). The Copyright Act provides that "all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright
In Data General, Data General alleged that Grumman misappropriated its trade secret software. 36 F.3d at 1155. Grumman obtained that software from Data General's customers and former employees who were bound by confidentiality agreements to refrain from disclosing the software. Id. at 1154-55. In defense, Grumman argued that the Copyright Act preempted Data General's trade secret claim. Id. at 1158, 1165. The First Circuit held that the Copyright Act did not preempt the state law trade secret claim. Id. at 1165. Beyond mere copying, that state law claim required proof of a trade secret and breach of a duty of confidentiality. Id. These additional elements of proof, according to the First Circuit, made the trade secret claim qualitatively different from a copyright claim. Id. In contrast, the First Circuit noted that claims might be preempted whose extra elements are illusory, being "mere label[s] attached to the same odious business conduct." Id. at 1165 (quoting Mayer v. Josiah Wedgwood & Sons, Ltd., 601 F.Supp. 1523, 1535, 225 USPQ 776, 784 (S.D.N.Y.1985)). For example, the First Circuit observed that "a state law misappropriation claim will not escape preemption
The First Circuit has not addressed expressly whether the Copyright Act preempts a state law contract claim that restrains copying. This court perceives, however, that Data General's rationale would lead to a judgment that the Copyright Act does not preempt the state contract action in this case. Indeed, most courts to examine this issue have found that the Copyright Act does not preempt contractual constraints on copyrighted articles. See, e.g., ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 39 USPQ2d 1161 (7th Cir.1996) (holding that a shrink-wrap license was not preempted by federal copyright law); Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 457, 59 USPQ2d 1434, 1441-42 (6th Cir.2001) (holding a state law contract claim not preempted by federal copyright law); Nat'l Car Rental Sys., Inc. v. Computer Assocs. Int'l, Inc., 991 F.2d 426, 433, 26 USPQ2d 1370, 1376 (8th Cir.1993); Taquino v. Teledyne Monarch Rubber, 893 F.2d 1488, 1501 (5th Cir.1990); Acorn Structures v. Swantz, 846 F.2d 923, 926, 6 USPQ2d 1810, 1812 (4th Cir.1988); but see Lipscher v. LRP Publs., Inc., 266 F.3d 1305, 1312, 60 USPQ2d 1468, 1473 (11th Cir.2001).
In ProCD, for example, the court found that the mutual assent and consideration required by a contract claim render that claim qualitatively different from copyright infringement. 86 F.3d at 1454. Consistent with Data General's reliance on a contract element, the court in ProCD reasoned: "A copyright is a right against the world. Contracts, by contrast, generally affect only their parties; strangers may do as they please, so contracts do not create 'exclusive rights.' " Id. This court believes that the First Circuit would follow the reasoning of ProCD and the majority of other courts to consider this issue. This court, therefore, holds that the Copyright Act does not preempt Mr. Bowers' contract claims.
[15][16] This court now considers the scope of Mr. Bowers' contract protection. Without objection to the choice of law, the district court applied Massachusetts contract law. Accordingly, contract terms receive "the sense and meaning of the words which the parties have used; and if clear and free from ambiguity the words are to be taken and understood in their natural, usual and ordinary sense." Farber v. Mutual Life Ins. Co., 250 Mass. 250, 253, 145 N.E. 535 (Mass.1924); see also Kelly v. Marx, 428 Mass. 877, 881, 705 N.E.2d 1114 (Mass.1999) ("The proper course is to enforce contracts according to their plain meaning and not to undertake to be wiser than the parties.") (quoting Guerin v. Stacy, 175 Mass. 595, 597, 56 N.E. 892 (1900) (Holmes, C.J.)).
In this case, the contract unambiguously prohibits "reverse engineering." That term means ordinarily "to study or analyze (a device, as a microchip for computers) in order to learn details of design, construction, and operation, perhaps to produce a copy or an improved version." Random House Unabridged Dictionary (1993); see also The Free On Line Dictionary of Computing (2001), at http://wombat.doc.ic.ac.uk/foldoc
[17] The record amply supports the jury's finding of a breach of that agreement. As discussed above, the district court erred in instructing the jury that copyright law limited the scope of Mr. Bowers' contract protection. Notwithstanding that error, this court may affirm the jury's breach of contract verdict if substantial record evidence would permit a reasonable jury to find in favor of Mr. Bowers based on a correct understanding of the law. Larch v. Mansfield Mun. Elec. Dep't, 272 F.3d 63, 69 (1st Cir.2001). The shrink-wrap agreements in this case are far broader than the protection afforded by copyright law. Even setting aside copyright violations, the record supports a finding of breach of the agreement between the parties. In view of the breadth of Mr. Bowers' contracts, this court perceives that substantial evidence supports the jury's breach of contract verdict relating to both the DOS and Windows versions of Draft-Pak.
The record indicates, for example, that Baystate scheduled two weeks in Draft- Pak's development schedule to analyze the Designer's Toolkit. Indeed, Robert Bean, Baystate's president and CEO, testified that Baystate generally analyzed competitor's products to duplicate their functionality.
The record also contains evidence of extensive and unusual similarities between Geodraft and the accused Draft-Pak--further evidence of reverse engineering. James Spencer, head of mechanical engineering and integration at the Space and Naval Warfare Systems Center, testified that he examined the relevant software programs to determine "the overall structure of the operating program" such as "how the operating programs actually executed the task of walking a user through creating a [GD & T] symbol." Mr. Spencer concluded: "In the process of taking the [ANSI Y14.5M] standard and breaking it down into its component parts to actually create a step-by-step process for a user using the software, both Geodraft and Draft-Pak [for DOS] use almost the identical process of breaking down that task into its individual pieces, and it's organized essentially identically." This evidence supports the jury's verdict of a contract breach based on reverse engineering.
Mr. Ford also testified that he had compared Geodraft and Draft-Pak. When asked to describe the Draft-Pak interface, Mr. Ford responded: "It looked like I was looking at my own program [i.e., Geodraft]." Both Mr. Spencer and Mr. Ford explained in detail similarities between Geodraft and the accused Draft- Pak. Those similarities included the interrelationships between program screens, the manner in which parameter selection causes program branching, and the manner in which the GD & T symbols are drawn.
Both witnesses also testified that those similarities extended beyond structure and design to include many idiosyncratic design choices and inadvertent design flaws. For example, both Geodraft and Draft-Pak offer "straightness tolerance" menu choices of "flat" and "cylindric," unusual in view of the use by ANSI Y14.5M of the terms "linear" and "circular," respectively. As another example, neither program requires the user to provide "angularity tolerance" secondary datum to create a feature control frame--a technical oversight that causes creation of an incomplete symbol. In sum, Mr. Spencer testified: "Based on my summary analysis of how the programs function, their errors from the standard and their similar nomenclatures reflecting nonstandard items, I would say that the Draft-Pak [for DOS] is a derivative copy of a Geodraft product."
Mr. Ford and others also demonstrated to the jury the operation of Geodraft and both the DOS and Windows versions of the accused Draft-Pak. Those software demonstrations undoubtedly conveyed information to the jury that the paper record on appeal cannot easily replicate. This court, therefore, is especially reluctant to substitute its judgment for that of the jury on the sufficiency and interpretation of that evidence. In any event, the record fully supports the jury's verdict that Baystate breached its contract with Mr. Bowers.
[18] Baystate does not contest the contract damages amount on appeal. Thus, this court sustains the district court's award of contract damages. Mr. Bowers, however, argues that the district court abused its discretion by dropping copyright damages from the combined damage award. To the contrary, this court perceives no abuse of discretion.
The shrink-wrap license agreement prohibited, inter alia, all reverse engineering of Mr. Bowers' software, protection encompassing but more extensive than copyright protection, which prohibits only certain copying. Mr. Bowers' copyright and contract claims both rest on Baystate's copying of Mr. Bowers' software. Following the district court's instructions, the jury considered and awarded damages on each separately. This was entirely appropriate. The law is clear that the jury may award separate damages for each claim, "leaving it to the judge to make appropriate adjustments to avoid double recovery." Britton v. Maloney, 196 F.3d 24, 32 (1st Cir.1999) (citing Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 451 n. 3, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993)); see also Data Gen. Corp. v. Grumman Sys. Support Corp., 825 F.Supp. 340, 346 (D.Mass.1993) ("So long as a plaintiff is not twice compensated for a single injury, a judgment may be comprised of elements drawn from separate
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.
Do not look at laser with remaining good eye.
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.
Will I retire or break 10K?
Nice post.
And it made me realize another way in which shrinkwrap licenses are weird... They're the only thing I know of where you can reasonably and legally end the transaction without any knowlege of the license nor any form of redress if you disagree. I can't move into an apartment without having signed the lease, and I don't pay my first month's rent until I've done so. If the lease terms suck, I can either walk away or renegotiate (I've done this before, actually).
Basically, in pretty much every other contract in existance you have to read and sign the agreement before you get the thing which the contract purports to give.
I wonder, if shrinkwrap licenses -really- went under judicial review (they didn't in this case; the judge refused to rule on that aspect, only giving the license defacto validity) if the "freely entered" concept of contract law would be found to be violated.
The enemies of Democracy are
Apple tried that. They lost.
Basically, Apple licenced the right to use a look-alike GUI to Microsoft for MS Windows. Apple interpreted it as meaning, "For Windows 1." When Microsoft released updates, with the lookalike GUI, Apple sued. The courts sided with Microsoft, and that's why Microsoft is able to pretty much copy their entire GUI from Apple.
--
http://nemilar.net - Not your grandmother's soup kitchen
I've always wondered... couldn't you just have a kid come over and click "I Agree" on any EULA? As long as they're still children, they can't enter a legally binding contract with another party (at least in the US). So couldn't you get around the legalities of the EULA by having a minor click through? Surely not everyone who uses the software can be bound to the EULA if those people never were presented with a licensing agreement to agree to...
I know you were being sarcastic about the electron-beaming, but I thought I'd clear things up by stating how I understand it.
(Not that stating opinions usually clears things up)
A clean-room procedure can be as simple as one group of people writing out a list of features, and another group of people writing a product that fits this list of features.
The fact that the diff between the two codebases only removes the comments is a *ahem* coincidence.
What's this Submit thingy do?
The outcome is hardly surprising at common law, but you need to check what statutes are on the books that affect this. Statutes outlawing anti-competitive behaviour will often render a specific provision of this kind void.
Some people have been suggesting that you could get somebody else to click the agreement, perhaps a child. If they're doing this under your direction, it won't make the slightest bit of difference - it will still amount to you signifying your agreement.
One thing that will get the Supreme Court to grant Cert is when two Federal Circuits come to conflicting decisions on a point of law.
So perhaps in a year or two we'll hear from them on this and settle the matter once and for all.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
Now all those hotline server agreements (and my KDX agreement) can be considered legaly binding. Hot shit, warez server, here I come.
T Money
World Domination with a plastic spoon since 1984
from http://www.osopinion.com/perl/story/18698.html
It's just plain interesting how software is licensed. In most purchases made under contract, the contract is negotiated, the price is settled, and then the exchange of value happens. But software is different.
First, you must provide vendors with cash, then they tell you under what terms you've given them your money. And for some unknown reason, people think this seems logical.
I propose an entirely new scheme that would operate similarly to the way licensing works now -- "by using this product, you agree to this license" -- except that it would work to the benefit of those who are paying for a product.
1. Software Operators
By accepting value, cash or otherwise, you agree to the following terms of use for the purchased software product, and by acceptance of that value (that is, cash) the software company is bound by this agreement.
This agreement supersedes all other agreements, including click-through agreements, end-user license agreements (EULA) and other such mechanisms that are made at a later time, even when tacit approval of a click-through agreement is required for software installation.
If at any time the Software Company (hereafter referred to as SC) wishes to cancel this agreement, it may do so by returning to the purchasing entity the amount of cash or other value initially agreed upon.
By accepting payment for the software product, you, the SC, agree to be bound by this agreement and understand that it may not be set aside by any other agreements, constructs or legal means.
You, the SC, agree that you are liable for monetary damages if it is discovered that, through negligent programming and testing, your product causes substantial financial loss to the purchaser. The only remedies permitted in this license are mediation or civil suit.
2. Software Purchasers
The purchaser of the software product shall be permitted at all times to maintain a copy of the product for archival purposes.
The purchaser of the software product shall have and enjoy complete freedom to use the software product in any way that is deemed lawful by the laws in the jurisdiction in which the purchaser lives. Furthermore, the SC cannot stipulate (as in the case of Microsoft (Nasdaq: MSFT) FrontPage) that the purchaser must not use the SC's product to criticize or demean the SC.
Respecting the intellectual property rights of the SC, no purchasing entity that purchases under this license may distribute copies of the software product without compensation in the amount of full retail price to the SC.
SC agrees to make available all relevant documentation (or "tree-ware") necessary to make operating, using and troubleshooting the software product convenient to the end user provided that the end user is also the purchasing entity.
3. Transfer and Test
SC must agree that if the purchasing entity so chooses, he or she may donate the software product to a charitable organization of his or her choice and that all rights under this document also transfer.
SC agrees that the purchasing entity may test, compare and measure the SC's software product against that of a competitor freely and without restriction. SC agrees that all of the test, comparing and measuring results may be published without restriction of medium, technology or public nature.
Rebel Against EULA
There it is. It isn't pretty, and I'm not a lawyer, which might be obvious already.
But I encourage rebellion against ridiculous software licenses. It is incredible that Microsoft actually presumes that it can force you not to use FrontPage to create a site that criticizes Microsoft. So I say rebel against these ridiculous agreements.
It amazes me that it is legal for a software company to dictate terms of use after a purchase. In no other instance in a consumer's life does this happen. We even negotiate the terms of an automobile purchase before we spend the money.
Rebel against the EULA!
T Money
World Domination with a plastic spoon since 1984
This article here comments on a legal case where a shrink-wrap license may be binding.
The Bowers case is scary, indeed, but it hardly breaks ground on the proposition quoted above. The Federal Circuit Opinion relies on a longstanding string of case law (including the 1996 7th Circuit opinion in the ProCD case) finding a shrink-wrap agreement to be enforceable. While the enforceability of shrink-wraps will likely be heavily fact-dependent (and possibly jurisdiction-dependent), there has been enough guidance for years for a well-advised publisher to have little doubt that purchase and use of her software will be governed by the shrink-wrap. In other words, "Shrink wraps done right are enforceable. Duh."
The scary result in Bowers is not the enforceability of the shrink-wrap agreement, but the enforceability of a particular provision (the no-reverse-engineering provision), and a holding that the Copyright law that permits reverse engineering DOES NOT PREEMPT a state contract claim. This is actually quite a huge(ly bad) result, and it is hard to distinguish the analysis of the Federal Circuit case from a hypothetical book with the "no fair use" shrink-wrap provision.
This isn't a question of offer and acceptance -- its a question of federal law being circumvented by an activist court.
The court followed the ProCD case, which directly conflicts with Vault v Quaid on the matter of whether state contract law shrinkwrap terms are "preempted" by federal copyright law.
Both ProCD and this court found that they were not because an "extra element" exists. Both courts got it wrong because they ignored 17 USC 117, which states that the "owner" of software can install it on a machine. In other words, installation is a first sale right by black letter law.
In particular, the negotiation that occurs during the contract of sale fully comprehends installation and use. The shrinkwrap offers nothing new to the purchaser, and therefore there is no "extra element".
Nimmer, the foremost authority on Copyright wrote a very long law review article specifically debunking ProCD's analysis on preemption. This court did a crappy analysis that wasn't even at the level of ProCD.
This doesn't work legally for two reasons. First is that the current legal system has decided, for reasons that are unclear to any sane individual, that merely _running_ a computer program counts as _copying_ it, because the program is "copied" from disk into memory. This is much unlike a book; in the process of purchasing and reading a book you are at no point subject to copyright or licenses because you never copy the book. The effect of this weird theory with respect to software is that if you even use a piece of software without a valid license from the copyright holder, you are commiting a crime. Thus having a 12-year-old agree to the EULA doesn't help you any, because then you don't have the right to operate the software at all, as you have no license (never mind that it's already installed).
The other reason this doesn't work is simply that law is not a mathematical game and judges don't take kindly to this sort of thing.
No legal precedent supports your copy in your brain concept. Reading a book is not "fair use" because no activity is involved that would ever be considered to produce a legally cognizable copy, which is defined as "fixed in a tangible medium". Rather it is "noninfringing" activity. Your argument is a red herring.
But, turning back to software and actual as opposed to ficticious law, as I said before, a program being copied into cache memory or to the hard drive IS a legally recognized copy (like it or not) and is non-infringing when done on "a" machine on behalf of the "owner" of a copy of the software. This is not "fair use", but rather a statutory first sale property owner's right to copy of adapt software for use on a machine. Read 17 USC 117.
It's scray to think that someone lost a case because their menu structure resembled a competitors menu structure too closely. How long will it be before MS sues the companies/developers of every other competing office suite because of the menu structure?
Go not unto/. for advice, for you will be told both yea and nay (but have nothing to do with the question)
The LEXIS headnotes: The portion of the decision in which they mention ProCD and the shrinkwrap license claims:
That's my purse! I don't know you! -- Bobby Hill
This is the second case to make it to the appeals court level, and so become interesting from a precedential point of view. The first was Procd v. Zeidenberg , in 1996.
Not all applications are like this. It isn't possible to intuit how the Discrete Cosine Transform works in JPEG by using an image viewer, for example.
This ruling appears to be setting the (very bad) precedent that intuiting an obvious algorithm from using a piece of software is reverse engineering.
I am not a lawyer but if you work at a mid to large sized company, they probably employ some lawyers that you can talk to if you have any doubts about a project you might want to work in. And it doesn't take a law degree to know that it's much better to err on the side of caution and ask if you're not sure.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
In most states and many countries, no minor can enter into a legal contract without written permission by a parent or guardian, thus it's rendered null and void.
File under 'M' for 'Manic ranting'
Agreed. Now it would make sense for all commercial software to be open source because it seems there is no difference between disassembling it to find out how it works and using it to find out how it works.
graspee
You may examine the software in order to understand its operation, interfaces, and any interaction with users. However you may not incorporate information gained from such examination into any software unless that software is also licensed under the GPL.
Of course this assumes that such a clause would be legally enforceable. The reverse engineering clauses in licenses are based on the theory that the operation of the software is a trade secret and can therefore be protected. Free software eschews the idea of trade secrets. But under the theory that "freedom of contract" is sovreign, and supposing that the GPL is a contract freely entered into, then I'd guess that such a term would be as legally enforceable as any other.
Hmmm. What about open source licenses that are not GPL. This would prohibit, say, BSD picking up a feature from Linux. The plurality of open source licenses would become a major obstacle. Maybe the OSF is going to have to formally recognise other Open Source licenses as fellow travellers. OTOH maybe RMS will stay with his usual doctrinaire position on the subject.
Paul.
You are lost in a twisty maze of little standards, all different.
How about a book on algorithms costing $50 that then tells you that you can't make any use of the examples? That is definitly a book where you want to see the 'EULA' before buying.
The problem is you don't get to read the EULA before you open the box and you can't return the box after you open it. So if you do not like the contract terms you have no way of getting your money back.
Even worse are the EULAs that allow the manufacturer to amend the agreement at any time by posting a new EULA to some random obscure area of their web site without notifing you first. This is known as "sneakwrap"
Search Ed Foster's "Gripe Line" collumns on Infoworld's site for more on just how obnoxious EULAs and "sneakwrap" can be.
Happy Fun Ball is for external use only.
Luyseyal gives a bad example. Hacking and breaking in is tresspass and illegal. Not really relevant and distracts from the main discussion.
Say you own an item. Someone somehow copies it.
In the absence of copyright, copying the item is not illegal. Nor is it theft.
Now with copyright, if you are the copyright owner, and somebody infringes (one can copy without infringing depending on the law), that person has not stolen the item from you nor deprived you of its use. What that person has deprived you of is a legally granted monopoly over copying or distribution of the item. Arguably a form of theft perhaps, but do be clear the item has not been stolen from you, the monopoly may have been. Such monopolies are a granted right, but are not a fundamental right.
As for arguing in favor of universal ownership of everything and against private property, I'm not sure if either of us are doing that.
In fact one must be careful what sort of copyright one wants, when arguing for copyright.
Say in a possible near future if artificial memories, neuroprocessors, eyes, ears and virtual telepathy (via wireless networks) are developed. Would copyright law (or a future intellectual property law) be used to control how many times you can recall a particular memory? Use a neuroprogram? How many times you can send someone a thought/memory? Would you have to pay for some memories/thoughts? Would others be allowed to ransack your helper-brain just to look for their stuff?
So for the greater good, one has to be careful of what copyright law gets passed and how it is implemented.
That's why I don't like the term intellectual property. The term intellectual property tends to deceive or confuse people[1], and probably that's why certain entities have promoted the term. They want the existing laws to be changed to something different which I think will lead to bad things. In some countries they seem be getting there or even already there.
It'll probably be a sad day when intellectual property is no longer a misconception. Well maybe just me who'd be sad, the rest would probably think it's normal.
Maybe you have good reasons why it should be a happy day. Let me know, coz it seems inevitable.
Link.
[1] For example: there are those who think plagiarism is the same as copyright infringement and the same as stealing. Not true. If someone copied an item and claimed to be the original creator/owner, then that's not theft, that's lying, fraud, and bearing false witness (see ten commandments). So that's still wrong even without copyright law.
But it's easy to see how they can think that with the increasingly common misconception of "Intellectual Property".
It is my opinion that "intellectual property" is a term often used to confuse the public, to help blur metaphors and analogies together. And unfortunately it seems it is working very well.
There are copyrights, patents and trademarks. These are actually monopolies on quite different things. If I take someone's property I deprive them of the property itself - they can no longer use it. In contrast when someone infringes on a copyright, he does not deprive the owner of the work itself, but he deprives the owner of a legally granted monopoly on copying and distribution. Whereas when someone infringes on a utility patent he is depriving the patent holder of a monopoly on a particular idea (no one else is to use a similar enough idea even if he thinks of it independently). These infringements can be a form of theft, but consider also how you would feel if you can't use ideas you thought of independently. Or if you are only allowed to use/copy/distribute software if you hop on one foot, praise BigCorp, never measure how slow it is and allow them to automatically install stuff that may disable your other software? Thus the granted monopolies also limit people's access to ideas and works, allegedly for our long term benefit. However with the term "intellectual property" being bandied about, the naive may start thinking that these monopolies are a fundamental right, not a granted right.
Such laws may need careful balancing and reconsideration as time passes. For example, in a possible near future there could be virtual telepathy with artificial eyes, ears, memories, neuroprocessors, and seamless wireless digital communications. Would our laws scale well with such advances? Would people be able to easily send each other what they think, recall, hear or see? Would corporations control how many times we can play back memories of a particular event? Would certain thoughts have price tags on them? A penny for some thoughts, and a dollar twenty for others perhaps?
And don't forget gene or bio patents too. Imagine if the laws are badly written (or implemented) you may need a license to have children after undergoing gene therapy- no unauthorised reproduction of patented genes! Or be sued because your crop got contaminated: http://www.percyschmeiser.com/.
Looking at all the posts here and other places I am really starting to detest the term "Intellectual Property".
It confuses people[1]. Use copyright for copyrights, patents for patents, trademarks for trademarks.
If you keep using the term, and enough people believe it, Intellectual property WILL exist, and laws will be created for it. It's already happening in some countries.
And I think such laws will be detrimental as a whole.
SO PLEASE STOP USING THAT TERM!!!
Link.
[1] Example of confusion: many people think plagiarism is stealing. It's not - it's FRAUD. It's lying, bearing false witness against thy neighbour. Sure it may also be copyright infringement in some countries, but even in countries without copyright law, or in a case where it's not copyright infringement (laws differ), plagiarism is still lying/fraud.
Sorry, I don't buy shrink wrapped books unless I can examine a specimen.
So you never buy books online or by mail-order?
Even if you don't, I do. The fact that I paid for something is not, by itself, permission for the seller or publisher to impose all sorts of extra terms and restrictios on me. Once again, show me my signature on some piece of paper or take your extra-legal requirements and stuff 'em.
"that's not encryption - it's a new perl script that I'm working on..." - from some Matrix parody
I wouldn't buy if I don't have right of return. I have once bought a book with a couple of pages missing (binding error). It was, of course, replaced as defective.