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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.
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!
find ~your -name '*base* | xargs chown
What gets passed, if anything, will be somewhere in between Lofgren's bill and Hollings's bill.
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.
Ryosen
One man's "Troll, +1" is another man's "Insightful, +1".
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.
"We're sorry, but the website you're trying to reach has been disconnected."
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
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 ...
... " such act is necessary to make a non-infringing use under this title; and "
... " such means are necessary to enable a non-infringing use ..." ..."
Circumvention is not a violation if:
" 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 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...
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).