Lofgren's Anti-DRM Bill

blastedtokyo writes "House representative Zoe Lofgren introduced the Digital Choice and Freedom Act. Perhaps the most interesting section is the part that invalidates 'non-negotiable shrink wrap licenses' (EULAs) that limit rights. On top of this, it states that both digital and analog media need to be subject to fair use rules for backing up. The full text of the bill is also available." News.com.com.com.com and Infoworld have stories as well, which both note that there is no chance of these bills being passed this year.

Comments

This is the kind of stuff we need

[Deth_Master]

This is what the world needs. To adapt to the new media, not to try and force the world to their standards. The RIAA is alarmed that we are not buying their music and so wants to stop the spread of other music. I agree that it can be bad for certain artists, but I believe that the spread of digital media is overall good for all.
Secondly, I really don't want DRM cancelling my ability to keep copies of my CDs and other digital media. If I had a printing press I'd make copies of some of my favorite books. I've lost one of them, and I'm really wishing I had a copy.
Bills like this are ones I expect to see almost all Slashdotters supporting!

Go digital media!

copyright, EULA and GPL

[minus_273]

Just wondering, with all of this bashing of copyrights and EULAS, isnt the GPL itself a copyright? and that little header that is on GPled files a EULA? After all, it does say how we can use the software and how we cant.

Re:Don't cross the beams...

[beanyk]

I think this kind of conflict happens in other countries, too. The adage in legislative terms is: "it is easier to create than to destroy". That is, it's easier to enact something new, rather than repeal something old. I can think of two reasons for this:

(1) practical -- it's very difficult to prove, in any kind of all-cases, mathematical, way, what all the consequences of a particular law are; so it's also difficult to prove what the consequences would be of removing it and replacing it with a different law, so patchwork laws happen, new cases being dealt with by incremental legislation, instead of a clean sweep.

(2) political -- it's very embarrassing for lawmakers to have spent time and money pushing for a new law, only to have to take it back a year or two later, because it is, in fact, a pile of crap. Joe Public might get the impression Parliament (or Congress, or the Dail, or whatever) wasn't efficient.

Just my two cent.

EULA Strength?

[viper21]

What kind of legal strength does a EULA have any more?

1. They are on every software product.
2. Nobody reads them.
3. Those who say they read them are lying.

Therefore, one could assume that nobody understands their rights and none of the software companies seem to enforce their stated restrictions. At least that I have seen.

So what good is a EULA these days? Should we be reading them? Are they even valid, considering they 'go into effect' upon opening of an envelope.

Can such an agreement be made without a signature?

Can I just have my minor child open software to relieve me of these obligations to the software company?

These are things I would like to know. I admit that I am ignorant :-)

-S

Re:EULA Strength?

[Ryosen]

Actually, I read them. As a developer, I have to be concerned with what provisions companies put into their EULAs regarding distribution and use of their tools. I'm much too lazy to go digging for the references, but there are many examples of frivolous restrictions being placed in the EULA. For example, Microsoft's specification that its tools may not be used in open source development.

In addition to this, as a consumer, I look through the EULA for clues that there might be trojan processes in the software. Microsoft's Media Player is a good example of this whereby they reveal in their EULA that they can remotely access your machine and install arbitrary "updates." This has been covered here before so there is really no need to retread it again.

As for the legality of the EULA, no, it is not enforceable. The EULA is supposed to be a precursor to the purchase and subsequent use of the software. However, as you cannot view the EULA before purchasing, and as the software is invariably non-returnable, the agreement is non-binding.

By law, you have a set term to review a contract before signing it. In most states, this is three business days. A contract cannot be introduced and imposed ex post facto (after the fact). Typically, a contract is not legally binding unless it is signed by both parties and in the presence of at least one witness. Further, a contract is not binding to a minor unless that minor's parent or guardian also signs. So the whole notion of EULAs in video games is nonsense.

Ultimately, the enforceability of a EULA relies on the ignorance of the parties involved. The consumer who believes that it is binding and the vendor who finds comfort in the mistaken belief that an enforceable contract has been executed.

I personally do not know of a single court case where a EULA has been tested, which suggsests to me that the software manufacturers and their legal teams realize that a EULA is nothing more than a facade.

With respect to the inclusion of EULA legistlation in Lofgren's bill, I would suspect that that was put there as a bargaining chip. In negotiations, you always ask for more than you expect to receieve and you always ask for things that you don't care too much about. This way, you have something that you can concede to the other parties without actually losing something that you want.

Will not pass, but good to do anyways..

[debest]

Neither this bill nor Boucher's will pass, because there is no huge lobby (or $$) for this cause like Hollywood has. Still, it's good to go forward anyways, since raising public awareness is the only shot we have to change the industry's mind.

Actually, introducing this now (when it might possibly be made into an election issue) is a great idea, as the public is paying a bit more attention to politics than usual and is less likely to be completely ignored by mainstream press (a la DMCA).

BTW, *two* bills that seek to accomplish roughly the same thing? Why?

This bill will never pass

[Patrick]

Rep Lofgren's bill probably isn't even intended to pass. It's intended to get a voice out there to debate Sen Hollings. It defines a spectrum. It tells the rest of Congress that Sen Hollings is a raving, preserve-the-Mouse-at-all-costs lunatic. Rep Lofgren is giving consumer rights groups, the consumer electronics industry, Apple, and civil liberties groups a bill to support.

What gets passed, if anything, will be somewhere in between Lofgren's bill and Hollings's bill.

JOIN the EFF. It helps.

[laetus]

Writing your Congressman/woman/Senator helps on issues, but if you notice, bills that get passed usually have big lobbys behind them (special interests).

Topics like these are OUR special interest and we have a lobby for it, the Electronic Frontier Foundation.

I'm a paying member myself and I would strongly encourage you to join also. Unfortunately, it's a fact in today's politics, money talks. Let your dollars start squawking.

Re:JOIN the EFF. It helps.

[sphealey]

Writing your Congressman/woman/Senator helps on issues, but if you notice, bills that get passed usually have big lobbys behind them (special interests).

When you write your congressperson on an issue of great importance (and I think this is one such), you need to prepare two letters. The first to the congressperson at his US Government address, laying out your position in clear, calm, concise language, one page or less, typed and signed in blue ink, mailed from a post office in your district.

The second should be addressed to your congressperon's Chief of Staff, c/o Committee to Re-Elect Congressperson XYZ, at the reelection campaign's address (but not not not at a US Government address). The letter should be more or less the same. But stapled to it should be a check for $20, $30, $50, or whatever you think reasonable. Check made out to the re-election committee natually.

I think 20 or 30 thousand such letters would start to get the attention of Capitol Hill.

sPh

Modifying the DMCA!

[Tom7]

Actually, the most interesting part of this bill (to me) is that it modifies the worst part of the DMCA (17 USC 1201) concerning circumvention devices. Paraphrasing ...

Circumvention is not a violation if: ... " such act is necessary to make a non-infringing use under this title; and "
" the copyright owner fails to make publicly available the necessary means to perform such non-infringing use without additional cost or burden to such person. "

Providing a circumvention device is not a violation if: ... " such means are necessary to enable a non-infringing use ..."
" such means are designed, produced and marketed to enable a non-infringing use ..."
" the copyright owner fails to make available the necessary means referred to "

This is great! With those in place, the DMCA becomes a mere annoyance rather than a real impediment to software development.

My own DMCA Battle...

So what's to prevent them from...

[jbarr]

just encapsulating the digital content in a "computer program" (viewer, etc.) and claiming that it is excluded? Or is the bill stating that if it is any of the other forms, that it is not a computer program and included?

"(c) As used in this section, the following terms have the following meanings: A 'digital work' is any literary (except a computer program), sound recording or musical work, or dramatic, motion picture or other audiovisual work, in whole or in part in a digital or other non-analog format. A 'digital media device' is any hardware or software that converts copyrighted works in digital form into a form whereby the images and sounds are visible or audible, or retrieves or accesses copyrighted works in digital form and transfers or makes available for transfer such works to such hardware or software.

Re:EULA Strength? - IMPORTANT CORRECTIONS

[socratic method]

For clarification, most contracts do _not_ need to be signed to be legally binding. Examples of those that must be signed are contracts for the sale of goods $500 or more and prenuptial agreements. Also, minors can bind contracts and enforce them against adults. However, the contract is voidable at the option of the minor.

Most EULAs do stipulate that the software can be returned if you reject the EULA. While this may not be entirely feasible, that does not give you the right to agree and subsequently break your agreement. For the legality of EULAs to be fully known, they will have to be tested in the courts or a supervening law (or administrative regulation) must be passed. I suspect that exactly _what you are purchasing when you buy software_ will have to be determined first. If you are purchasing the right to use the software, the imposition of an EULA ex post facto may lack consideration and thus be found unenforceable.

I am not a lawyer but have studied law. However, do not rely on the above information as legal advice.

sm

Re:EULA's

[Zathrus]

I'd like to see EULA's remain legal

Well, that presumes they're legal already. There's no case law indicating that, and excepting the few states (two?) that have adopted the new UCC, it's questionable at best.

In fact, at least one proviso of most EULAs is definitely not enforceable (at least in California). Namely the one stating that you cannot resell the software - see this article.

Problem is, if you don't accept the terms, you won't be able to take it back to the store

IANAL, but either the manufacturer or the retailer have to accept it back. If they don't, the EULA is essentially unenforceable since a key component was not met. A lot of manufacturers or distributors will accept the software back, albeit under duress.

Frankly, I don't see why software should be any more protected from lawsuits than anything else. Standard case law should take care of this. If you maliciously distributed software with essential flaws that you knew of then you'd still be on the hook. Otherwise you'd be free and clear (excepting legal costs, which is somewhat the point). I'm a software developer too, but I don't see why we should be any more protected than a manufacturer of material goods. Yes, software is complex. So is a car engine. And there's a difference between bugs and negligence.

The problem is that EULA's don't just try to indemnify against damages -- they attempt to limit your rights (right of first sale, redistribution, fair use rights, free speech rights (cannot use for benchmarking, etc) -- and no, most of these are not "constitutional rights" but are rights granted through case law) or grant the software/seller/manufacturer additional rights that you may not agree to (c.f. spyware EULAs). This is utter crap and should not be legal. If you want to update your own software, that's one thing. But you shouldn't do it without my ok, without notice, and you certainly shouldn't touch other software without explicitly notifying me of it and making it reverseable.

Of course, this is easier said than done, but I do think it winds up being simpler in the long run for everyone involved (at least as long as you're trying to be above the board about things and not scum).

Re:Why?

[fmaxwell]

First off, the product is not just the software. The product is the software *and* the regulations.

Unsigned stipulations from a vendor do not constitute "regulations." The product is just the software.

Secondly, The Box clearly states that there are conditions defined inside. It may not state what the conditions are on the outside, but it does let you know that you are making a gamble by buying it. If you don't want to make that bet, dint buy the product.

Then I hope to some day sell you software with a EULA that states that, by opening the package, you agree to deed all of your real property to me and that you will send me nude photos of your wife/girlfriend (so that I don't have to download them from newsgroups).

It might not be what we want from a product, but life is tough.

That's why we have consumer protection laws. It's so that manufacturers can't pawn of any non-functional junk they want on the American public. If anyone ever deserved to be screwed over by a company, it's you with your whole macho "life is tough" mentality.

Please explain to everyone why you believe that software should be treated differently than cars, microwave ovens, and dishwashers. What is it about software, as a product, that makes you believe it should be exempt from truth in advertising laws? Why should they be able to disclaim responsibility when their product fails? Why should they be able to limit how you use it (did you ever buy a rake and find the manufacturer limiting its use to leaves and prohibiting its use to clean up grass clippings?)

Question

[Raven42rac]

Will you marry me, Mrs. Lofgren, just kidding, but seriously, it is nice to see that some politicians are actually spending the time to pay attention to shit rather than try to just say "everything digital should have copy protection', coughhollingscough, lets hope our "friends" in Washington take this approach toward our freedoms.

Re:EULAs have been UPHELD IN COURT

[Ryosen]

IIRC, the court did not rule in favor of either party. Instead, it judged that the arbitration clause of the EULA was valid and the case was moved to arbitration.