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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."
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.
I'm gonna have to stop contributing to Open Source projects then.
No, really.
If I could be sued for duplicating functionality which is present in open source products, just because I've seen the code, then I'll just have to stop looking at GPL'd code so I don't put myself into that position... For example at work I implement graphics pipelines (image manipulation). Since this is strongly related to, say, what Gimp does, this means I can't even look at Gimp source code because it'll put me at risk for some idiotic copyright infringement claim.
Sorry, Gimp project. I can't afford a lawsuit. I suppose I won't be able to contribute. I'm glad I've never looked at the Gimp code!
Sorry, no. Section 0 of the GPL clearly states:
The GPL assumes that since you have legally obtained a copy of the program -- recorded onto a hard disk, CD-ROM, book, or other piece of your property -- that you already have the right to use it. In doing so, you're simply legally using a piece of your private property, an action to which copyright traditionally does not address.
Well-established, constitutionally upheld, internationally valid, largely uncontroversial Berne-Convention-class copyright only affects you when you copy, publicly perform, redistribute, etc. a covered work. It is only the experimental, alpha-test-quality, constitutionally untested, and controversial DMCA-class laws which attempt to extend copyright from the right to copy and publish to the right to enslave and deprive the user.
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.
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
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.
The Mongrel Dogs Who Teach
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.
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...
The issue is not whether you can attempt to sell me a copy of your program. However, in the absence of intellectual output laws, the attempt is likely to be met with laughter. Say you charge $500 for a copy of FrobozzWord. I might buy that copy from you and then, when anyone else came to buy from you, I'd offer it for $251. If I can make even two sales, I win. And you lose.
Is this wrong, if you wrote the program and I just bought it? For digital works, including software, the copy is identical and therefore exactly as usable. You hold no special position just for being first. Of course, in this sort of world, you wouldn't sell the program unless you could make enough on the first sale to justify developing it. It could be the end of mass-produced software and the beginning of a meteoric rise for mercenary programmers who freelance jobs.
Either way, it certainly could lead to a slowdown in the development of software, with a concommitant impact on the economy and indeed the standard of living for many people. As such, the industrialized world has evolved laws for intellectual output. These laws artificially produce scarcity. Now, your copy and my copy -- although they are exact digital duplicates, indistinguishable by any test -- are no longer legally equivalent. Yours is acceptable; mine is "infringing" and therefore legally invalid. As such, I cannot claim the copy I made of your program is exactly as usable, since (in a legal sense) it cannot be used at all. This creates a market for your software (maybe) and allows you to sell multiple copies, since the marginal cost of procurement is not zero any longer.
So far, so good. But this "copyright" is not a natural right. It's created by the state to meet the legitimate ends of the public; to wit, to spur innovation and creativity by offering incentives for people to create. If the execution of intellectual "property" law begins to significantly impede this end -- if the law serves more often than not to choke off creativity and slow the growth of the public domain -- then the public is entirely within its rights to reconsider the bargain. Then we might get something interesting happenning...
As a total aside, I said earlier "You hold no special position just for being first." This is not strictly true, of course. It would be natural to assume that, because you wrote the program (whereas I only copied it), that you would be an expert in it. You could more easily solve tech problems, tweak settings for particular users, and upgrade the software's functionality. I would be playing catch-up. One could even imagine making your expertise the marketable item. If someone needs the program and tech support enough, one can even imagine making a business model of this. And it doesn't rest upon intellectual "property" laws at all.
The Mongrel Dogs Who Teach
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.