Supreme Court Lets Utilization Rights Stand

Moof writes "The United States Supreme Court refused to hear a case between a programmer and his former employer. What makes this news is the fact that the court is letting stand the rulings of the lower courts: Essentially if someone owns a physical copy of software, then they are allowed to modify the code as part of their regular use, no matter what other agreements are in place."

Comments

How does he legally claim copyright?

[XorNand]

The U.S. Supreme Court declined to hear an appeal by a programmer who sued his former employer for changing his programs' source code.

I RTFA, but don't understand how the programmer could claim copyright on something he wrote while being employed by this company. All work produced by a person during the course of his/her employment is owned by the employer, not the employee. Unless this guy had a special employment contract, or coded in his free time?

Re:How does he legally claim copyright?

[Xentor]

Maybe it was more of a consultant gig, where he sold them a black-box custom solution. They'd own the program, but he'd keep the code. They'd get it a little cheaper, but they'd have to hire him again whenever changes were needed...

I've seen this tactic before... I wouldn't work that way.

Re:How does he legally claim copyright?

[Anonymous Coward]

I wouldn't work that way What way is that? Getting a check? If you need a check and the employer wants to do buisness that way then why not? the buisness is happy and your happy with food on the table.

Re:How does he legally claim copyright?

[aitikin]

I understand that's the way the laws and contracts are written. Thing is, a photographer is hired to take a picture for someone. The photographer takes said picture, gives the person the picture and is paid for it. Who owns the copyright? The photographer. Because of my understanding on that, I understand where the coder is coming from (to an extent. Lesson here, read you contract before signing!).

Re:How does he legally claim copyright?

[MSZ]

Probably he had some rights in the program, if he didn't, the justification would be "you do not have copyright get lost", not about usage rights.

I think the more important issue is that the court affirmed basic rights of a copy owner. These are under attack from EULAs and other directions. Good to see them recognized.

Re:How does he legally claim copyright?

[Anonymous Coward]

Actually, that's not always the case. Copywrite law says that the author is the owner, unless they expressly give up those rights. Most of the time employment contracts have clauses that do just that; make the programmer give up rights to the code to the employer. Sometimes, though, it gets overlooked (especially with small companies that don't know any better). It's happened to me before, actually.

Re:How does he legally claim copyright?

[Monkelectric]

For a minute I thought the court was being fair minded ... but now I see that this benefits a corporation so naturally they ruled this way.

Re:How does he legally claim copyright?

[emag]

I don't understand it either. It sounds from TFA as though he wrote these programs in the normal course of his employment, clearly making the software the property of the company. That he "placed locks on the code and stipulated that Titleserv could run--but not alter--the programs" sounds as though he was attempting to hold the company hostage. Even with some additional information in one of the comments on TFA, it sounds like it was a co-ownership situation, where the company had every right in the world to make modifications as it needed them.

Re:How does he legally claim copyright?

[Xentor]

Hey, if I write a piece of software for hire, they get the code too. They buy it, they own it.

Obviously this wouldn't apply to a shrink-wrapped commercial product, but then, that's not what this is about.

Re:How does he legally claim copyright?

[fribhey]

that's because the photographer is hired for a specific job and most (if not all) photographers have contracts that state that the image taken is own by them. this programmer was employed by a company - not hired for a specific job - therefore the employer owns all the programmers work while that programmer was employed. there's a big difference there

Re:How does he legally claim copyright?

[Red Flayer]

The employer would own the copyright if the object in questions is a work for hire... but it's sometimes hard to judge whether the business relationship is employer-employee or not.

Also, without knowing the details of the case, it is possible that his agreement contract included a clause that he would retain copyright over his work. It's complicated as well by the fact that the company he worked for was not in the business of producing the product in question.

Re:How does he legally claim copyright?

[Darius Jedburgh]

Unless this guy had a special employment contract

You say this as if it's unusual. People make all kinds of contracts with their employers. Examples I've seen in recent years among colleagues: two guys who claimed to exclusively own the source code they wrote and deleted it upon leaving the company (leaving only executables) and one who claimed non-exclusive ownership of any code he worked on allowing him to take any source file he touched with him when he left. These were employees not contractors.

Re:How does he legally claim copyright?

[lantenon]

From the wiki on work for hire:

A "work for hire" (sometimes expressed as "work made for hire") is an exception to the general rule that the person who actually creates a work is the legally-recognized author of that work. According to copyright law in most countries, if a work is "made for hire", the employer - not the employee - is considered the legal author. The employer may be a corporation or an individual.

The employee doesn't own this; the corporation does.

Re:How does he legally claim copyright?

[XorNand]

Well, there's a difference between putting a photographer on the payroll and hiring him just for your wedding. If the photographer worked for a studio, the studio owner would actually own the images, not the guy who snapped them. The term "employee" (which was used in the article) has a very specific legal definition. Google "employee contractor IRS" to see exactly how well-defined it is.

Re:How does he legally claim copyright?

[Anonymous Coward]

But why did he leave the source code on their servers? If he was really interested in keeping control of the source code, he shouldn't have relied on his password-protected files and just taken the source with him, leaving nothing on the company's servers.

Re:How does he legally claim copyright?

[timster]

Did you hear about the other court decision this week, where they ruled unanimously that time spent changing into special protective gear and walking to the actual work station counted as "work" and must be done on-the-clock? That's in favor of the employees, and against a corporation.

Re:How does he legally claim copyright?

[drxenos]

Not so. Without some contract stipulating "work for hire," the programmer owns the software.

Re:How does he legally claim copyright?

[Altus]

I would guess that these "applications" were really just scripts designed to do some specific tasks and that the source was in fact the final product...

but thats just a guess... the article lacks detail

Re:How does he legally claim copyright?

[croddy]

cool! now, how far are we from the point where I get paid to repeatedly hit the SNOOZE button?

Re:How does he legally claim copyright?

[drxenos]

"Work for hire" requires a contract stating so. Just because someone is paying you does not automatically make it a "work for hire."

Re:How does he legally claim copyright?

[ArsonSmith]

Ahh, you mean like Microsoft.

Re:How does he legally claim copyright?

[LeadDreamer]

(IANAL, but I married one...) Actually, in most states exactly the opposite is true: as a contractor all your work is considered work-for-higher unless you have a contract explicitly stating otherwise! You are hired for your work, not to buy a product - if you want to retain ownership, then you'd better not get paid hourly for the work; just for the product. As an *employee*, at least in California, it works like this: Anything you develop on company time, materials, equipment, directly derivative, etc. automatically belongs to company, generally even if you have a contract stating otherwise. Anything you develop outside of that, **but related to the company's business** ONLY belongs to the company if you have a contract stating so. Anything you develop outside of that, **unrelated to the company's busniess**, NEVER belong to the company **EVEN IF** if you signed a contract otherwise - such a contract is considered unenforceable/inequitable... Tracy Hall Lead Dreamer Dreams and Logic

Re:How does he legally claim copyright?

[Dare nMc]

If the photographer worked for a studio, the studio owner would actually own the images,
followed your advice(google), to find who owns the copyright, all the first 5 links I clicked on say the opposite of what you claim.

http://copylaw.com/new_articles/wfh.html
the fact that under copyright law, authors are presumed to own the copyright in the works they create. The best way to avoid these problems is by having a written agreement in place before any work begins.

Re:How does he legally claim copyright?

[timster]

Well, if you're sleeping in a building owned by your employer, and pressing the snooze button is an integral part of your job, then you're all set.

Re:How does he legally claim copyright?

[TRRosen]

The court actually found him to hold the copyrights here. Company was negotiating for them when he left.

Re:How does he legally claim copyright?

[ScuzzMonkey]

What the grandparent is getting at is that the corporate entity is the author of software, or any other "work for hire" built by an employee during his or her term of employment. That would be a better phrase to Google for, actually. Anything you come up with during your normal course of business (and in some cases, I believe it's been interpreted to including anything at all you create while employeed by the company) belongs to them.

Re:How does he legally claim copyright?

[drxenos]

I had thought so too, but this guy (lawyer) says otherwise: http://wistechnology.com/article.php?id=2194

Re:How does he legally claim copyright?

[orderb13]

Explain why this wouldn't apply to a shrink-wrapped commercial product please.

Re:How does he legally claim copyright?

[Fareq]

Because shrink-wrapped software is not produced as a work-for-hire -- and works for hire are one of the explicit exceptions to an author owning copyright.

Re:How does he legally claim copyright?

[richardtallent]

From TFCD (court decision):

"Titleserv initially asserted that the programs were "works made for hire" within the
meaning of 17 U.S.C. 201(b). It later asserted entitlement to summary judgment regardless of
whether Krause was an independent contractor or employee. For the purposes of its summary
judgment ruling, the district court, adopting the magistrate judge's report, assumed arguendo that
Krause was an independent contractor and owner of the copyright in the programs he developed."

Re:How does he legally claim copyright?

[aitikin]

No, really it's because it's not specified in the Photographer's contract. Same goes for an author, painter, or composer. If you're commissioned to make a piece for a person or a company you maintain the copyright, unless you sign it away in your contract, which people often attempt to avoid, and even then usually your only signing away part of the copyright, usually you maintain the moral rights, meaning you are still credited as the author/painter/composer/photographer.

Re:How does he legally claim copyright?

[Foobar of Borg]

most (if not all) photographers have contracts that state that the image taken is own by them

This is the important distinction. From my understanding (IANALawyer), since this is a work for hire, if the photographer's contract does not specifically state that they retain the rights to the photographs, then you have a case for owning the copyrights to the photos yourself since it was a work for hire. Most want it not just so they can charge you for reprints (although my wedding photographer let us buy the negatives and the rights after one year), but so they can also use the pictures in their advertising and as part of their portfolio. Without a good portfolio, a photographer has little or no business.

Re:How does he legally claim copyright?

[aitikin]

The closest example of "anything at all" can be seen in Pirates of Silicon Valley where Woz takes his PC in front of HP because there's a clause in his contract that stated he needed to give them first pick on anything he creates.

Re:How does he legally claim copyright?

[Richard Steiner]

Yup, but thankfully it isn't universally true that all photographers keep the copyright -- our wedding photographer provided the option to buy the copyright to the photos she took, so when all was said and done we had the prints, the negatives, and the right to make copies however we wish. However, she retained the right to use the photos in her promotional materials.

Most photographers wanted to retain copyright and provided no options, which is why we didn't give them our business. :-)

Re:How does he legally claim copyright?

[B'Trey]

That depends. If you hire Joe of Joe's Photography to come and photograph your wedding, then Joe is almost certainly going to own the copyright to those photos. However, if you go to the little studio set up in the corner of Wal-Mart and have your kids photo taken while he's playing with a stuffed clown, do you really think the photographer owns the copyrights to those photos? The company who's hiring him does. This case appeared to be a lot closser to the latter case than it does to the former.

Re:How does he legally claim copyright?

[bwt]

I read the opinion. He was an independent contractor. By default, independent contractors own the copyrights to stuff they create. The idea is that the terms of their contract should spell out explicitly the full extent of the transfer of ownership, and that which is not given up is retained. If you are a regular employee stuff you create for work is owned by your employer because you are a part of them legally. This is the same idea that protects true employees from being sued by third parties, but does not protect contractors. These principles define what happens in the absense of explicit contract agreements.

Re:How does he legally claim copyright?

[Kadin2048]

I'm not exactly sure, but I think part of the problem might be that a lot of software programmers are hired not as employees but as independent contractors, and that might affect the copyright status of their work.

I think that the lawyer's real point in that article is 'get the agreement up front to avoid problems later,' and probably shouldn't be taken as specific advice as to who owns the code in particular instances, as I'd imagine it could vary considerably. It might even be something that is different in different states, or from one Circuit Court district to another (because of conflicting precedent). I work with a retired IP attorney fairly regularly, maybe I'll pick his brain sometime off the record over lunch.

After all there's nothing preventing people from suing each other and generally making a legal mess of things, especially if the relationship between the company and the contractor/employee wasn't originally clear, and has just gotten more murky with time. From a company's perspective, it's worth getting the contract pounded out in the beginning just to remove the potential for problems later -- especially since they're the "deep pocket" that someone might seek to go after in a suit after the fact.

Personally I know that my current company makes it quite crystal clear that they automatically own everything you do while in their employ that relates to the project you're on, and unless you have specific permission anything related to their entire scope of business as well ("permission" is defined rather loosely as basically a statement by your manager that 'John Doe's hobby project doesn't have anything to do with what he's doing on the job'). I'm not sure how enforceable this second part would be, but I'm not going to go out of my way to find out.

Anyway, I smell a little bit of FUD in that article, but he's a lawyer and I'm not, so take it how you will. His overarching point though ('get it on paper') is probably well heeded by everyone, though.

Re:How does he legally claim copyright?

[Anonymous Coward]

"a photographer is hired to take a picture for someone"

Around here, professional photogs don't work that way. The don't do "Work for Hire", and so they are able to retain copyrights to their work.

It works like this: They take the photos gratis, then show you "proofs". You can then buy copies if you wish.

Re:How does he legally claim copyright?

[jasen666]

?? why doesn't MS give out the source code to Office or Windows to it's clients?

Re:How does he legally claim copyright?

[jasen666]

We had our photographer taking digital pics at ours, and she then gave us a CD of all of them.
I doubt we'll have any future problems getting them printed or otherwise used how we choose. Well, so far we've had no problems getting print copies made.

Re:How does he legally claim copyright?

[WaterBreath]

All work produced by a person during the course of his/her employment is owned by the employer, not the employee.

If the employee in this example was an independent contractor or consultant, then he would have a right to claim ownership of the code. The article seems to imply this is not the case, however, because that's not really an employer/employee relationship, but rather a client/agent relationship.

Besides that, your statement could be taken to have a startling breadth, though I'm not sure you meant it that way... I have heard of companies who claim ownership of any code produced by an employee, regardless of when, where, or on what machinery that code was written. I.e., you could work a 9-to-5 day, then go home and write code for a personal project all night, on your own computer, bought with your own money, using development tools that you paid for with your own money, and your employer would still own your code, all because of the waiver you signed when you got hired. Even if the product could not be considered "competition" or "conflict of interest". But as far as I know, this is by far not "the norm". Personally, I think it's ridiculous.

All of the companies I have worked for required employees to sign waivers stating that the company would own any code we wrote during time for which we were being paid by the company, or that we wrote using their resources. I.e., if I'm clocked in from 9 to 5, anything I do therein belongs to the company. If I clock out at 5, but continue to use the workstation to develop code for my personal project until 10PM, it doesn't matter that they weren't paying me for those 5 hours, because I used their resources to do the work. I'm okay with this, because they didn't invest money in those resources so that other people could profit from them.

Re:How does he legally claim copyright?

[TinyManCan]

BTW, MS does give you the code if you're a big enough customer. Trust me when I say, you do not ever want to sign the NDA to get it though.

Re:How does he legally claim copyright?

[bwt]

You said it correctly: "work for hire" applies to material created by an employee during his or her term of employment. An independent contractor is NOT an "employee". There are a few very narrow cases where an independent contractor's work may be a "work for hire". All involve an explicit agreement to this effect, but even this is not sufficient to guarantee it legally. See this article for more info.

Normally, stuff you creates when not on the job is yours even if you are an "employee". The only time this isn't the case is if your employment contract specifically contains terms stating otherwise. It's never the case that you lose rights to work you create "off the clock" involunatarily. You must agree explicitly. Courts almost always resolve contract ambiguity in favor of the author.

For those that care, the case to read is CCNV v Reid, where the Supreme Court ruled in favor of a sculptor who created a statue for a non-profit organization when determining who owned the copyright. This opinion spells out everything and is the definitive precedent for all of this.

Re:How does he legally claim copyright?

[TFGeditor]

"I've seen this tactic before... I wouldn't work that way."

Bullshit.

I did consulting work. Clients asked for a specific solution. I gave it to them. Their needs changed, I modified the original solution--at additional cost.

What's the problem?

Re:How does he legally claim copyright?

[aitikin]

I never argued against that point, I was just trying to give an explaination to the original poster's question as to why he would have the copyright (or why he would think he should have it).

Re:How does he legally claim copyright?

[Anonymous Coward]

The article linked to is really short on details. Not that most of us on Slashdot actually RTFA... ;-)

If you want a better understanding, read this article:

http://wistechnology.com/article.php?id=2194

Re:How does he legally claim copyright?

[SilverspurG]

All work produced by a person during the course of his/her employment is owned by the employer,

Oh? And what happened to the empowerment of Federal authority: The Constitution?

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

It looks fairly obvious to me that, at least at a Federal level, the Federal courts have no option but to side with the individual author.

Re:How does he legally claim copyright?

[ankarbass]

If you had read the opinion you would know that Krause 1) wrote the code in Clipper which for latecomers to the computer scene was a dbase compatible database system from the late eighties early nineties, and 2) knew that TitleServ had backup tapes so deleting the code would have been a pointless gesture.

I've seen this happen a lot. Someone gets a gig and is careless about leaving source code lying around. Later they figure out that they might be able to sell their code to someone else, or that their relationship with the company is going to change, and realize that they should have been more careful in distributing source code.

However the complaint involves not only the source code but executable only code as well. His choice of languge, clipper, allowed TitlServ to eventually decompile the executable only applications to which they didn't have source code. I suspect this is at the heart of Krause's complaint. Even if he realized too late that he left some source behind he probably felt at least with the two programs he was careful with that they would have to contract with him for more work or to bend over to get the source code. Today that might be a DMCA violation, but in days gone by, simply decompiling a program to make changes to it was not necessarily any sort of civil or criminal offense.

If you're contracting for someone it's best to get this sort of thing in writing up front.

ymmv.

Re:How does he legally claim copyright?

[Desert Raven]

Having done a bit of independent contracting and design work in the past, general rules of thumb:

If you were working on an existing product owned by the employer, copyright is theirs.

If you were working on a product substantially *designed* (not just spec'd) by the employer, copyright is theirs.

If you were working with a team of others hired by the company, or employees of the company, copyright is theirs.

If you were indistinguishable from an employee during your work (worked in their facilities, on their equipment, on their hours) it is generally considered "work for hire" and the copyright is theirs.

If you recieved specs, then designed and built the product on your own time, on your own property/systems, without constant direct oversight, then the copyrights are most likely yours, with a perpetual, non-exclusive license given to the employer.

That said, if you are relying on any of this without having it expressly written in your contract, you are a fool.

Re:How does he legally claim copyright?

[FLEB]

No, actually there are a number of affirmative conditions which have to be met for something to be called "work for hire" (in the US). I'm not totally sure, but I think you have to be a W2-filing employee (among other things) to have your work be "for hire". Of course, a creator can always sign away their rights to their contracted work, creating a work-for-hire-esque situation, but the natural state of a non-W2-employee is not work-for-hire. (Not a lawyer either, but I have looked into this, being a graphic designer often undertaking contract work.)

Re:How does he legally claim copyright?

[Habahaba]

You are confusing the right of use and copyright. The photographer will have the copyright but he/she has sold you unlimited rights to use the photographs. This means, you have the negatives, you can make prints, you can sell them and you can use them in any ways you want. But you can not say they are copyright by you. They will always be copyright of the photographer. I do not think you can even sell the copyright. It's something that happens when the picture is taken. But yes, you can sell all the (other) rights to the photograph. And from your (current) point of view, this is the same thing. But from the artists (yes, I considere photographers artists) point of view this is totally different thing.

Re:How does he legally claim copyright?

[Invidious]

That's not quite true.

Under a 'work for hire' contract, the photographer is paid for the image and most or all rights associated with it -- it becomes the client's image in its entirety. Unless you're dealing with amateurs or starving students, however, this means that the client will be paying a premium for that. There are variations on this, where a photographer may retain the right to use the image for self-promotion. It all depends on the contract and how it is negotiated.

In stock photgraphy, the photographer takes pictures, and then the client decides to license a particular picture out for one specific use. The price will depend on various aspects of the usage. The photographer retains all rights to the image.

In most types of wedding photography, the photographer charges the client for his time, and then again for prints of the images. It is unusual to see the client buy any rights to the use of the image -- they only get the 'fair use' rights that come along with owning the print. However, the ways in which the photographer may use the images may be limited by the release that the client signs.

Prints tend to be cheapest. Limited-use rights tend to be more expensive, and total image ownership tends to be the most expensive.

In reality, any time a photographer gets paid for his work, instances will be a little different, and the photographer and the client may retain or withold certain rights.

Re:How does he legally claim copyright?

[fizbin]

This case appeared to be a lot closser to the latter case than it does to the former.

That's only because of the summary and sloppy reporting in TFA. The programmer in question was an independent contractor, as the opinion makes clear.

So it's analogous to hiring Joe from Joe's Photography to come and take pictures, and then making modifications to the pictures as an essential step to utilizing them. I'm not sure what that means with pictures (maybe, clipping them to fit in a frame?), but I think we all have some idea what it means with software.

Re:How does he legally claim copyright?

[Xentor]

And what if they decide to change it themselves? They bought the software, so shouldn't that be their option? Granted, it might void any support contract you make with them, but they should still be allowed to modify a program they paid to have custom-made.

Re:How does he legally claim copyright?

[TFGeditor]

If you contract for a custom hardware part, you get and own the part. If you contract for a custom injection mold with which to make the part, you own the mold and can make all the parts you want. Same with software. You can buy the solution, ot buy the source. If you buy the source, it costs a LOT more because the creator cannot sell the same product to others that have the same need.

Re:How does he legally claim copyright?

[Richard Steiner]

Hmmm. You may be correct -- I'd have to look at the actual contract to verify. :-) But since we have the right to copy the photos in any way we wish, that strikes me as having the copyrights to the material. We can even grant others that same right if we wish.

Re:How does he legally claim copyright?

[Xentor]

Hmm, good point.

Perhaps it's just a matter of preference then. I admit I have little experience in this respect, being a full-time employee instead of a contractor, but why not just set it up like this?

* The client gets ownership of the final product in the delivered form
* The client gets a copy of the source code, and permission to use and modify it for internal use only (i.e. They couldn't go and resell it to another company).

That would allow the contractor to resell the code, in whole or in part, but still let the company modify it as necessary. The only issue is whether you want to rely on an NDA to keep your code from going public.

(I realize this differs slightly from my previous point, but I hadn't considered the reselling angle before)

Re:How does he legally claim copyright?

[TFGeditor]

"* The client gets a copy of the source code, and permission to use and modify it for internal use only (i.e. They couldn't go and resell it to another company)."

For an independent contractor/consultant, this is a bad business model. Get the client locked into your services to maximize profitability. Bit don't gouge them--treat each clinet as a "customer" rather than a "sale." Give them a few extras above and beyond, but do not "give" yourself out of business.

Re:How does he legally claim copyright?

[Xentor]

Is it more profitable to stick with the same client for an extended period, or to use the (hopefully) good references/referrals to move on to other clients?

And "don't gouge them" is a good point. Our department had the same consultant for over a decade, since the place started up. I had been there about a year and a half when it was found he was inflating timesheets and overbilling, among other things. Needless to say, we stopped using him, and we were his only significant client.

Re:How does he legally claim copyright?

[TFGeditor]

"...found he was inflating timesheets and overbilling, among other things."

Well, again, my practice/philosophy was "make a customer, not a sale." One way I accomplished that was that when I bid a job and my actual hours or expenses were lest than estimated for the bid, I invoiced less than the bid amout to reflect that. If my time or expenses esceeded the bid amount, I never invoiced for more than the bid and absorbed the loss. This both astonished and impressed my clients.

Re:How does he legally claim copyright?

[Anonymous Coward]

My wifes had two jobs in the last few years that had these same problems. They were resolved though a class action I believe.
One was with the protective gear. It was a clean room at a semi conductor fab. The company felt you were not actually "on the job" until you were completely suited up, in the fab, completed your turnover with the off going crew, and logged into your equipment and working on wafers. Same with the end of your day on the way out. That was resolved and back pay was handed out. That one was actually kind of crooked as they moved the workday around to prevent paying as much overtime I guess. If you worked the night shift, your 12.5 hour shift (was 12 hours before the settlement) was actually broken into two distinct workdays. One from 7PM to midnight, and the other from midnight to 7:30 AM. Somehow or someway, this resulted in 4 hours less overtime they had to pay in a two week rotating shift as the pay period ended at midnight in the middle of your shift.

The next one was a major insurance firm (No, but I just saved a lot of money on my car insurance). Until you were seated in depths of sector G, with the computer booted up and logged in, headset on and logged into the phone system waiting for a call, you were not on the clock. That was also resolved.

Re:How does he legally claim copyright?

[Xentor]

Well that's one way to build up a good reputation. Probably got quite a few referrals because of that.

Re:How does he legally claim copyright?

[Dare nMc]

>that the corporate entity is the author of software, or any other "work for hire" built by an employee

only if that employee was hired explictly to do software, or if that person has signed a contract stating they give the copyright to that company. Or the company has a contract with that person stating they are doing software as a "work for hire" (according to my google results).

so if he were hired to troubleshoot computer/equipment/etc, and wrote some software, absent a contract, then he, the author owns the copyright on that software, but the company has the right to use that work as intended by the author. Also while employed as other than a software designer, if they contribute software to another project owned by the company, they are now co-author, and have a say in the further licensing (of course the company can remove the added content, or go back to a pre-existing version...)

Re:How does he legally claim copyright?

[angel'o'sphere]

You are looking to narrow.

Suppose you "buy" a copy of Oracel and run it on your SUN box. You figure that you sacrisfice a lot of performance and it could be better if you changed the cashing.

Oracle now refuses to fix that for you. As you *OWN* a legal coyp of the Oracle DB you are allowed to decompile teh relevant parts and fix it yourself, regardless what your contract says.

Its the same for all software/copyright issues.

No one was talking about reselling, not in the TFA nor in Krauses case at all. Krause wanted to prevent the *OWNER
* of the software to apply fixes/patches.

angel'o'sphere

Re:How does he legally claim copyright?

[ScuzzMonkey]

You are correct and I never claimed otherwise. But my understanding from TFA was that he was an employee... independent contractor wasn't mentioned that I saw.

Fair use has been reinforced...

[the_skywise]

Ergo... If I have a physical copy of a CD, I'm allowed to alter it and/or its encryption, as I wish, to still hear my music so long as I'm not using it for any other purpose.

Re:Fair use has been reinforced...

[KiloByte]

Especially, this means you are allowed to edit away the part that displays the EULA. Copyright can't affect use, just copying (as its name says), so you don't have to agree to have your rights restricted if you haven't agreed to it before (written contract, etc). That's good, as click-wrap EULAs have always been dubious.

Re:Fair use has been reinforced...

[no_opinion]

Wrong, that cannot be concluded from the ruling. If you read the opinion you'll see it is limited to software programs, not music or movies.

Re:Fair use has been reinforced...

[drgonzo59]

Am I allowed then to also reverse engineer any software I buy on a CD?
An executable is also a "binary" source code (series of 1s and 0s), then I can transform it into assembly using a disassember.
So if I buy Windows XP, then I can run some of its parts through a disassembler, so I would have a more readable "source code", then I can change it any way I want, bypass any security mechanism, customize it to my liking and so on.

Re:Fair use has been reinforced...

[AviLazar]

Ergo not really. According to the article the changes constitute "an essential step in the utilization" of the program

You do not need to rip music to your computer hard drive as an essential step to utilize the music. You can play it from the CD player.

The article mentioned three criteria, and between the second and third there was the word and which means all three criteria must be met. The third criteria could also be argued against you.

Re:Fair use has been reinforced...

[SpasticThinker]

I think that the problem with cracking copy protection or reverse engineering software is not in you doing it for yourself - after all, if you did it only for yourself, no one would ever find out about it and sue you.

It's the fact that almost 100% of the copy protection cracking/etc is done so the product can be freely distributed that has software/music/movie companies up in arms.

Re:Fair use has been reinforced...

[Anonymous Coward]

How was the parent modded as 'flamebait'? Moderators on crack - a common occurence on /.

Re:Fair use has been reinforced...

[HTH NE1]

If you read the opinion you'll see it is limited to software programs, not music or movies.

Maybe movies on VHS, but DVDs aren't just the storage of a movie for linear playback. Many commercial DVDs contain some programmed scripts that control how the content is played back. It has the capability to set and read variables and perform conditional branching.

Re:Fair use has been reinforced...

[WhiteWolf666]

I cannot play it from CD on my iPod.
My Lexus's CD player will not play some DRM encrypted CDs.
My Linux system (and I own nothing but Linux & OS X systems) will not run the proprietary DRM rootkits that enable access to various disks.

For me, in several situations, I cannot use these CD players. I do not own a standalone CD player, except for the changer and 1-shot in my Lexus.

Re:Fair use has been reinforced...

[bratboy]

I think the other important point is that the company OWNED a copy of the software, and the programmer was trying to apply restrictions to what they could do with the code that they owned. EULA's stipulate that you're LICENSING the software.

Re:Fair use has been reinforced...

[garcia]

If you read the opinion you'll see it is limited to software programs, not music or movies.

So I can legally break the software protection schemes that the movie and software distributers have put into place on my media?

Re:Fair use has been reinforced...

[MobyDisk]

IANAL.

I wish this ruling did mean that you can edit out EULAs, but IMHO it doesn't. Had Kraus (the developer) coded an EULA screen into the product, or even verbally stated that he was licensing the product to the TitleServ, then the case would have been completely different. The way SCOTUS said that the only changes that can be made to a copyrighted piece of software are changes that are made "as an essential step in the utilization of the computer program in conjunction with a 18 machine," and used "in no other manner."

Changing the EULA or disagreeing with it may or may not be considered "an essential step." This is an interesting case, but the courts managed to carefully avoid any impact on EULAs.

Re:Fair use has been reinforced...

[Bob(TM)]

Except ... this does seem to muddy the waters a bit ...

One could argue there's not a substantial difference in programs (a list of instructions a computer interprets to perform functions), music (a sequence of encoded signals a player interprets to produce a waveform), and movies (a sequence of images decoded/displayed by a player to produce a moving record of an event).

Seems like someone could get very creative with this one in defense of fair use concepts ...

Re:Fair use has been reinforced...

[Agilus]

Easy solution: Someone make an interpreter that reads music files or encrypted files, or even better, ANY DATA FILE, as code. Just read sequences of bytes, and map each to a particular instruction, making sure to limit your language to be tolerant of bad memory accesses, or just disallow any bad accesses.

Such an interpreter could be used to make digital art. Then, any data file run through it -is- code. :) If no one has coined this idea yet, I claim first patent rights to it. :)

Re:Fair use has been reinforced...

[AviLazar]

OS-X can't play CD's? Linux has problems playing CD's? I think a lawyer will argue "We make our CD's very easy to play on the majority of systems out there. While there are systems out there that will not work, it is impossible to cater to every single person and protect our intellectual property. Good sir, we will offer you a refund on your most recent CD purchases, but continue to rip our content and circumvent our legally allowable copyright protection and we will p0wn your @$$. Thank you"

Re:Fair use has been reinforced...

[hcob$]

Then the line is blurred even further with Sony installing software that limits your use of the music. So if you alter the sony program not to block you, does that mean you now didn't break the DMCA?

Re:Fair use has been reinforced...

[Marxist Hacker 42]

Agreed on that- but given the recent discovery of Sony DRM software, suddenly this opens up a huge hole for reverse engineering DRM software- especially when said software doesn't work under say, Linux....

Re:Fair use has been reinforced...

[WhiteWolf666]

And that's why its important that this case law is being slowly built up.

The case in question pertains _exactly_ to this situation. It doesn't matter about the majority of users; I _own_ one copy of the CD. Ripping of this CD to a non-protected format is _needed_ for me to be able to use it.

Otherwise, the programmer in question could simply have said, "But, your honor, I designed the software for their requirements at the time, and they could have simplyed employeed me, or purchased a different program, at any given time!"

It doesn't matter that I could switch to a different OS. It doesn't matter that I could purchase a different CD. All that matter is unless the CD promimently, expressedly says, "Not compatible with the following ", I can modify it if necessary to for me to use it.

And if the CD does have such requirements, it isn't a CD. The redbook audio standard doesn't permit that kind of crap. It's an optical audio disk, and should be labeled and sold as such.

Re:Fair use has been reinforced...

[DCheesi]

Unfortunately, legislation trumps precedent. My understanding is that unless the Supreme Court rules the DMCA itself unconstitutional, its specific restrictions apply regardless of what the general precedent would otherwise be.

Re:Fair use has been reinforced...

[brunes69]

Sony's DRM is enabled by software that is installed when you autorun the CD.

So, can I modify this software, since I own a copy of the pysical media? But wouldn't this violate the DMCA?

Laws contradicting each other.

Re:Fair use has been reinforced...

[AviLazar]

I understand what you want, and I sympathize. But the people who actually own the IP want something else. So who gets to win? It is either your way or their way. Well, it is their property and you are not forced to buy the music. If you buy their product, wouldn't it make sense you have to follow their rules?

A CD is still a CD even if it has extra software properties to it. The disk itself is a CD.

It is also unreasonable for these guys to list all sources the CD is not compatible with. It is pretty much impossible. What happens if the day after production a new player comes out that is not compatible...should they do a recall? I have never had any cd player (even the one in my car, which is a 1996 maxima) have any problem playing any cd's i put into it (except it won't play mp3s). So I don't know what problems people are really having.

Re:Fair use has been reinforced...

[rewt66]

This is what Adobe did with PostScript fonts. IIRC, there was something about fonts were just shapes, and couldn't be copyrighted, or some such, so Adobe made the font into a program that drew the shapes, and then it was covered by copyright.

Maybe somebody else remembers the details better...

Re:Fair use has been reinforced...

[GuyverDH]

Heh - but isn't a CD - digital audio -ie a stream of bits (just like a program), and isn't a CD/DVD player just a computer, designed to *run* the program (ie play the audio / movie)?

Re:Fair use has been reinforced...

[rewt66]

No, not laws contradicting each other, court decisions contradicting laws. Given that the law that the court (indirectly) contradicted is the DMCA, that's a good thing.

Re:Fair use has been reinforced...

[Fred Ferrigno]

I _own_ one copy of the CD. Ripping of this CD to a non-protected format is _needed_ for me to be able to use it.

Not really. Sony would argue that before you bought it, you were supposed to know that using the CD on a PC involved using the DRM software. You can modify it, but only to use it the way it was intended. Go ahead and port the DRM rootkit to Linux. I doubt Sony will mind.

Re:Fair use has been reinforced...

[Fred Ferrigno]

A CD is still a CD even if it has extra software properties to it. The disk itself is a CD.

Except the copy protection they use deliberately violates the format specification for an audio CD. They introduce slight errors that most standalone CD players will overlook, but CD-ROMs tend to fuss about. Because of that, they're not allowed to carry the Compact Disc Digital Audio logo. In a very real, albeit technical way, they are not audio CDs.

Read the Wikipedia entry.

Re:Fair use has been reinforced...

[tkrotchko]

"But the people who actually own the IP want something else."

Just to be nit-picky, they don't "own" the IP, they own the right to control copying of a song. There's a huge difference between the two. People may use the two interchangabley, but they're not the same.

"It is also unreasonable for these guys to list all sources the CD is not compatible with. It is pretty much impossible. "

What you've done is given an excellent argument why the law must allow ripping protected CD's; since you've argued its unreasonable for Sony et al to ensure compatability in an expected way, it is reasonable for the consumer to copy the music from this CD into a format that will work. The consumer isn't gaining an advantage from ripping the CD; in fact, they're simply gaining the advertised function: they want to be able to listen to the music on their music system.

You'd have more of an argument if a CD was compliant with CD standards, but they're not; they're something proprietary that the record company is advertising as being compatible with what a consumer would expect a CD to be compatible with.

Or maybe the answer is for the record companies to accept returns from consumers? The standard answer is "no, it doesn't work on my computer/cd-player/DVD player".

Re:Fair use has been reinforced...

[cmdr_beeftaco]

Yes, good luck with that.

Re:Fair use has been reinforced...

[tepples]

the company OWNED a copy of the software [...] EULA's stipulate that you're LICENSING the software.

"The owner of a copy" is defined by state law (largely the Uniform Commercial Code), not federal law. A "copy" is a physical medium such as a CD. If you buy a software package in a retail store, you are the owner of a copy, and unless the publisher successfully argues that you knew at the time of purchase that the sale was a "restricted sale", you have all the defenses under 17 USC 109 and 117 (and foreign counterparts).

Re:Fair use has been reinforced...

[tepples]

DVDs aren't just the storage of a movie for linear playback. Many commercial DVDs contain some programmed scripts that control how the content is played back.

OK, you may have a defense based on a right to adapt the menu scripts (.ifo), but that doesn't necessarily extend to the right to adapt the motion picture (.vob) that the menu scripts start and stop.

Re:Fair use has been reinforced...

[gg3po]

Wrong, that cannot be concluded from the ruling. If you read the opinion you'll see it is limited to software programs, not music or movies.

Fair enough. I won't modify the music or movies -- just the DRM software on the disc that "protects" them.

Re:Fair use has been reinforced...

[bratboy]

well see, that's what happens when someone who actually knows something posts on slashdot. please moderate down for factual.

Re:Fair use has been reinforced...

[DrSkwid]

If I don't own it, how can I sell it under doctrine of first sale?

Re:Fair use has been reinforced...

[HTH NE1]

OK, you may have a defense based on a right to adapt the menu scripts (.ifo), but that doesn't necessarily extend to the right to adapt the motion picture (.vob) that the menu scripts start and stop.

And what of DVDs where subtitle tracks contain buttons that branch to other video (follow the white rabbit)? And doesn't each VOB know where to go next once its end is reached? That's a goto.

And besides, isn't splitting hairs like that between programs and data like saying you can adapt the word processor but not to the extent where you can actually read any documents with it?

Re:Fair use has been reinforced...

[werewolf1031]

It's the fact [sic] that almost 100% of the copy protection cracking/etc is done so the product can be freely distributed...

I must disagree on that point. In fact, I know of at least five people, myself included, who rip CD tracks to MP3s not for redistribution but purely for personal use. My PC is my stereo, surround-sound speakers and all. When I buy a CD, the first thing I do is rip it to MP3s and add it to my digital collection (which is not shared), simply for the convenience of having my entire collection at my fingertips. The CD itself goes into a rack for safe-keeping -- I listen to the duplicate (MP3s) and keep the original for archive. I don't share my ripped MP3s online. Two friends of mine do exactly the same thing; so do both my sisters, and my niece. Most of us even have portable CD players that also play MP3s -- these are not "piracy-enabling devices", they're simply incredibly convenient. Why have a disc that only holds a dozen or so tracks when you can have one that holds about two-hundred and sounds just as good (when ripped at high bit rate)?

I think on this site especially, you'll find a great many users who engage in similar non- (or "less-") enfringing practices.

So, what constitutes "almost 100%"? Is it 95%? 80%? 65%? I think your "fact" is a little off.

Re:Fair use has been reinforced...

[SpasticThinker]

So you know of at least 5 people who rip music and never, ever share it with anyone...friends, family, etc. Last time I looked at Kaaza, I saw more than a million users who actively engage in illicit sharing.

So I would say what constitutes "almost 100%" is more than a million users that I know of sharing illicitly, as opposed to your 5 legal rippers. So almost 100% ~= 99.9995%, based on what the two of us have personally observed.

Re:Fair use has been reinforced...

[werewolf1031]

"More than a million", eh? Ok, let's examine that.

Suppose, hypothetically (and erroneously, of course) that all of those file sharers are in the U.S. Just for the sake of argument. Let's even round the number up a bit, to 1.5 million, since it was "over a million". That's 0.5% of the U.S. population sharing tunes (and other stuff, don't forget) on Kazaa. Out of how many Internet-connected U.S. households? Don't have a percentage on that one, but it's damn-sure higher than 0.5%.

Now, obviously, many of those Kazaa users are outside the U.S., so let's look at it globally. It's been recently estimated that just over a billion people worldwide are connected to the Internet. Ok, this changes things... That comes out to about 0.15% of all users sharing files on Kazaa, using our guesstimated numbers. Could be a bit more, could be less -- doesn't matter. My point is pretty clear: A million Internet users violating copyright law is still a very tiny portion of total 'Net users, by any estimation. A negligable percentage, in fact.

Let them keep trying in vein to download a tune ripped at a half-assed bit rate, probably screwed up with *AA interferance as to make the song unlistenable. I, my family, and friends (both near and abroad) will continue to enjoy the clean quality of freshly ripped songs from the latest CDs we've bought.

Disclaimer: Yes, I have used Kazaa in the past, and Napster (old version) before that. I simply find that, rather than spending hours sifting through the bullshit to get what I want, it's easier just to run to the store and buy the stuff, and actually have an original, legal copy for my own archives.

Re:Fair use has been reinforced...

[SpasticThinker]

Disclaimer: I totally agree with you. I personally would much rather listen to top quality rips that I perform myself than the trash you can get off any P2P service.

Still, what is the difference between my "more than a million" and your "at least 5 people you know"? Both are numbers pulled almost entirely out of thin air. But if you are going to use my thin-air numbers to determine that "A million Internet users violating copyright law is still a very tiny portion of total 'Net users", then I can use your thin-air number to determine that as small as that million may be, your 5 legal users is a heck of a lot smaller.

I forget exactly what it was we started arguing about, but I'll be happy if we can agree on the thin-air numbers ;) BTW, thanks for the civil response...don't read too many of those, quite refreshing.

Re:Fair use has been reinforced...

[werewolf1031]

But if you are going to use my thin-air numbers to determine that "A million Internet users violating copyright law is still a very tiny portion of total 'Net users", then I can use your thin-air number to determine that as small as that million may be, your 5 legal users is a heck of a lot smaller.

Well crap, ya got me on that one. (shrug)

BTW you're quite welcome for the civil response. I too get frustrated with the petty, closed-minded name-calling BS (amounting to little more than trolling IMO, no matter how valid the argument is there's no excuse for the hostility) that so often goes on in the world's most-used nerd forum... and probably most-used forum, period... even though I've occasionally caught myself falling into the same trap and later thought "damn, I wish I'd worded that differently so as to not be such an ass". Oh well, live 'n learn.

this is good to know

[P3NIS_CLEAVER]

i have all of my code from each job archived since 1999. It is always a great reference.

Re:this is good to know

[jnaujok]

Amateur, my archives go back to 1986. Of course, it's hard to find a 5 1/4" floppy drive these days.

Re:this is good to know

[rubycodez]

you didn't make image files of those agse ago? probably could have compressed a whole directory of those floppy images and burned to single cd-r, or just have it on spinning storage.

Re:this is good to know

[bfischer]

You kids these days are something else. My archives go back to 1968, but I can't find a punch card reader anymore. ;)

Re:this is good to know

[Anonymous Coward]

I have all my work stored on punch cards and filed in huge cardboard boxes in my garage. What are these "floppy disks" and "cd-r's" that you are talking about???

Re:this is good to know

[Bezben]

I have all my old work stored as paintings on cave walls.

Re:this is good to know

[marshall_j]

Yeah I find this is a great reference at times of what not to do. Sometimes I wonder what the hell I was thinking when I wrote x or y.

Re:this is good to know

[Anonymous Coward]

Amateur. My old work is maintained as oral history by the Mbuti tribe of the Congo.

Re:this is good to know

[hurfy]

hehe, nice

I beat him also.
My code (including 2-terminal battleship) is on an 11" Wang platter, i am not sure there aren't more working punchcard readers around than Wang Hard drives ;)

I do however happen to have one of the few complete ones left !

For the ACs:
A scanner actually sounds like it might work.
Our community college had the cardreader in use also in 83...even used it ONCE.

Hurfy
Online gamer for 25 years :)

Re:this is good to know

[Anonymous Coward]

MEH

My work is encoded into your very DNA and has been since the first primordial soup coalesced to form the beginnings of you.

Re:this is good to know

[Anonymous Coward]

Amateur. My work in encoded in the digits of pi.

Re:this is good to know

[rubycodez]

and that's why at the Big Bang I put my original work in an outgoing tachyon shock wave outside the edge of the observable universe, so you amateurs could never muck it up

err...

[soapdog]

didn't read TFA but won't thing rulling be used against DMCA in the future, like enabling you to patch DRM software you own and stuff like that?

Re:err...

[Fallen Kell]

Nice catch :) I would love to see someone try that if they are sued under the DMCA...

Company owning code?

[AdamWeeden]

I was under the impression that without some sort of other agreement (which the article does not mention) that a company owns the code generated by its employees. Why wouldn't that apply in this case and making the modification of programs in your possesion moot?

Re:Company owning code?

[drxenos]

Actually, it's the other way around. Without a contract stating otherwise, a programmer owns his code. It doesn't matter that someone else is footing the bill. Without a valid contract that states otherwise, an artist always retains copyright over his art. They should have had him sign a "work for hire" contract.

Re:Company owning code?

[bwt]

Actually, "work for hire" status is not simply a matter of agreement between an independent contractor and their client. There are some very limited circumstances where an independent contractor's work can be considered a "work for hire". Within these circumstances, an explicit agreement to "work for hire" status is always necessary, but it is nowhere close to sufficient. See this article. In fact, for a software contractor, it can almost never be acheived.

What the parties can do is agree to "assign" copyright ownership for the material in question to the client. This is different in that it does not absolve the contractor of certain kinds of liability the same way "work for hire" does.

Contradiction

[Apreche]

Isn't this a direct contradiction of the DMCA? What if I buy a physical copy of a game that has copy protection and modify that copy protection? Did the lower court make a bad ruling? Or is it only ok if you are not circumventing a copy protection measure?

Re:Contradiction

[blibbler]

I am not intimately familiar with the wording DMCA, but this code was written in 1995, so it probably isn't covered by the DMCA.

Re:Contradiction

[Xentor]

Well, from TFA:

it's legal for people to make changes to software, provided that they own a physical copy of the program, the changes constitute "an essential step in the utilization" of the program, and the software is used "in no other manner."

Circumventing copy protection just so you can play it (i.e. not to distribute it) seems like it fits there...

But then, I'm a programmer, not a lawyer.

Re:Contradiction

[palesius]

For those who didn't RTFA:
"He placed locks on the code and stipulated that Titleserv could run--but not alter--the programs, prompting a lawsuit from the company, which claimed it needed to make code tweaks in order to fix bugs and to perform other "routine" functions. Company employees ultimately picked the locks and made the changes they said they needed."

That sounds a lot like there were technological access control devices in place, which were then circumvented. I fail to see a basic difference between this and using DeCSS to view a DVD on a unsupported platform. Granted the suit being brought didn't seem to be about the DMCA. So it's entirely possibly that the employer could be innocent of infringement but not of violating the DMCA.

Re:Contradiction

[SilentOne]

From TFA:

Krause left the programs, which were designed to manage client information, on Titleserv's servers when he quit working for the company. He placed locks on the code and stipulated that Titleserv could run--but not alter--the programs, prompting a lawsuit from the company, which claimed it needed to make code tweaks in order to fix bugs and to perform other "routine" functions. Company employees ultimately picked the locks and made the changes they said they needed.

Sounds like it to me.

Re:Contradiction

[briancarnell]

The article is quite clear that owning is very different from simply possessing a copy. Just because I have a copy of CIV IV does not necessarily mean I own the it under the definition used by the court here.

Re:Contradiction

[AviLazar]

Read the statement again..it lists THREE criteria and fills it with the word "and" which means you have to meet all three criteria. Ripping a game, or music or movie, is not an essential step in utilization. Also, it could be argued the third step. Not to mention, copy protection is covered under different laws. So even if you were correct about your statement and it was legal to do so, it is not legal to do so if a program has a copyright protection system (even a poorly designed one).

Re:Contradiction

[Macadamizer]

I fail to see a basic difference between this and using DeCSS to view a DVD on a unsupported platform.

The big difference between using DeCSS and this case is that in this case, the owner of the materials figured out for themselves how to break the protections in the code. The DMCA prohibits the distribution of methods for breaking copy protections, but it doesn't prohibit you, an individual, from figuring out how to do it yourself. If you could figure out DeCSS on your own, you are free to use it on your own system -- but you can't distribute the information without running afoul of the DMCA provisions in the copyright code, and you are not allowed to purchase or otherwise obtain tools or methods for cracking copy protection from others.

Basically, if you've got the skills to do it yourself, you can crack copy protection without running afoul of the copyright code. If you need help, or give help to anyone else, that's where you get into trouble.

Re:Contradiction

[tnk1]

The Game companies would argue that you do not need to circumvent locks to do common tasks with the game or other media such as playing it or patching it. Particularly since game companies offer patches to games and make them available for free usually on their sites.

And copy protection itself has almost no bearing on playing games if you are the legal owner. Most people have No-CD cracks to make life more convenient for them when playing on laptops or similar circumstances, but theres no reason you can't lug around the CD to play the game.

So, copying media remain just as illegal. The only time I'd imagine you could alter a game under this decision would be to patch it to make it work in a situation that required some sort of patch that the company refused to make for some reason.

This guy basically tried to set up a situation where they were locked into a support situation with him to get any patching done to keep the product working. This may actually be a useful case for some people, but I think it's scope is actually pretty narrow. You basically are allowed to fix what you own so it does what it is supposed to and keeps on doing that.

Re:Contradiction

[Xentor]

That's a good point... I forgot about the whole ownership vs. license distinction. In the case of the article, the company had to prove that this software fell into the "ownership" category, while normally we just buy "licenses" for software.

This link, posted in another comment, explains it better than the link in the /. submission...

http://wistechnology.com/article.php?id=2194

I stand corrected.

Re:Contradiction

[Mr. Sketch]

Isn't this a direct contradiction of the DMCA?

From TFA, this suit was filed in 1996, pre-DMCA. Now it would be a DMCA violation, but back then it wouldn't have been.

Re:Contradiction

[drinkypoo]

Ripping a movie is an essential step in utilization if you want to watch your shiny new DVD movie on your [S]VCD-only player, or on a PC too slow to play a DVD in realtime.

Re:Contradiction

[Anonymous Coward]

Possibly it is a violation of the DMCA, but it sounds like he sued under copyright law.

Re:Contradiction

[AviLazar]

VCD-only player? Do they even make these? And what DVD player is too slow to play a movie? I have been playing DVD movies on PC dvd players for the past six years.

Re:Contradiction

[john82]

On the face, it does indeed sound like a violation of DMCA:

Krause left the programs, which were designed to manage client information, on Titleserv's servers when he quit working for the company. He placed locks on the code and stipulated that Titleserv could run--but not alter--the programs, prompting a lawsuit from the company, which claimed it needed to make code tweaks in order to fix bugs and to perform other "routine" functions. Company employees ultimately picked the locks and made the changes they said they needed.

The developer locked the code and left specific instructions (EULA anyone?) that it was not to be edited. The company defeated the copy protection and violated the EULA.

IANAL but it would seem to me that this case might open the door for a defeat of DMCA. The case itself was not about the merits of DMCA so there was no impact on the law.

I also wonder about the impact of this case on EULAs. Apparently the code would require a recompile to add users or business functions. Hrmm... I want the functionality in WinXP Pro (strictly hypothetical) but I have XP Home. Guess I can ignore the EULA now?

Re:Contradiction

[drinkypoo]

These are some pretty amazingly stupid questions. Yes, they still make players that play only VCD or SVCD; some have displays, some don't. You can answer this question trivially for yourself using google. (This was the second google hit on a search for SVCD player) and if you have an older laptop (say, a P2-300 or so) you can handle playing fullscreen SVCD, but not fullscreen DVD - if you can even get a DVD drive that will go into such a machine.

Re:Contradiction

[palesius]

Fair enough, but the entity here is a corporation, not an individual. So this is being distributed by someone, at least within the company.

If you formed a nonprofit organization that discovered and then distributed circumvention devices amongst its members would that run afoul of the DMCA?

It's important to read the contract before signing

[_PimpDaddy7_]

This is why it's so vital to read your employment agreement contract before signing.

Even the supreme court :(

[Fred_A]

Great, now the supreme court starts to utilize "utilize". What's the point of utilizing fancy new words when thare are some fine regular words we could be utilizing instead that do just as well ?

Ok so people can modify code as part of their regular utilizage, and we can uglify the language as part of our reguly utilization of it as well, blah.

Re:Even the supreme court :(

[Anonymous Coward]

Stop trying to obfuscate the issue.

Re:Even the supreme court :(

[LanceUppercut]

I think that "utilize" is a perfectly cromulent word. There's nothing to complain about here.

Re:Even the supreme court :(

[Have Blue]

Remember that this is a legal document we're reading. Each word has an extremely specific meaning that may or may not be the same as the colloquial meaning, and using a different one would have changed the legal meaning of the text.

Re:Even the supreme court :(

[Zordak]

This wasn't a Supreme Court decision. All the Supreme Court did was decide NOT to decide this case.

Re:Even the supreme court :(

[richardtallent]

The word "utilize" came from the statute, not the court decision (and certainly not from the SC).

"Utilize" is not the same thing as "use", which is why you see so many grammarians getting their collective panties in a wad over seeing it in print. To "use" something denotes action in conformance with the thing's designed purpose. To "utilize" something means to use in a way that differs from the as-designed purpose. I can't "utilize" a hammer to drive a nail, I can only "use" it. However, I can "utilize" a screwdriver handle to drive a nail.

The fact that the word "utilize" was, er, used, actually played an important part in the district court's ruling. Use of that word specifically means that the owner can "stretch" a computer program to other purposes without violating copyright, as long as the principle use is the same (e.g., same sort of transactions being processed).

What an idiot!

[Otter]

Whatever the legal issues (I wonder if, had Titleserv not been able to get through his security measures and make the changes, they could have gotten a court to compel Krause to do it?)...

What an idiot! Who would ever hire Krause again, after this stunt? This is the kind of thing people here yap about doing in Ask Slashdot replies, but what fool actually does it?

Re:What an idiot!

[AviLazar]

His contract might have allowed for this. At my company we utilize Dell Servers, and some Dell software - we are not allowed to modify this software. He might have had a contract that prevented other people from modifying the software - in essence making it so the company had to hire him for any and all edits. This is mere speculation on my part - but it would seem to fit this argument.

That freaking guy

[Hobbes897]

He placed locks on the code and stipulated that Titleserv could run--but not alter--the programs.

So much progress from one man's prickishness.

Re:Precident

[fred fleenblat]

it would make a great precedent except that it happened afterward.

Work for Hire?

[Benanov]

"He placed locks on the code and stipulated that Titleserv could run--but not alter--the programs, prompting a lawsuit from the company, which claimed it needed to make code tweaks in order to fix bugs and to perform other "routine" functions."

Translation: What a dick.

If this code was work-for-hire, then this would be completely illegal (and laughable). TFA doesn't go into detail about the agreement, so perhaps this was nothing more than someone trying to force something they knew they couldn't have.

I would have just switched to FLOSS or something rather than pick locks. (Then again, you'd probably have to pick locks in order to get the data out.)

Re:Work for Hire?

[Billosaur]

If this code was work-for-hire, then this would be completely illegal (and laughable).

I was under the impression that if I worked for a company writing/fixing software, whether I was perm or temp, that the company owns that work and I can't deny them use of it, nor claim it for my own purposes. If I could, I'd be able to hold any company I did work for hostage. Exactly why would they hire me?!? And don't mosty companies make you sign an agreement that specifically states that they own your work and you can't take it with you? Sounds like both sides may have dropped the ball on this one.

Re:Work for Hire?

[mysqlrocks]

If this code was work-for-hire, then this would be completely illegal (and laughable).

Yes, the article is very lacking. It says he was an employee but was he really a contractor? If you are an employee then it is assumed that everything you create is a "work for hire" as you say. However, if you're not an employee then a "work for hire" arrangement has to be in writing and fall within very strict guidelines. There is no such thing as an "assumed work for hire" (unless you're an employee). My guess is he was contracted to do the work (not an employee) and thus owned the copyright because no "work for hire" agreement was in place. If this is the case then I can see why he'd want to retain control of his code. However, the courts seemed to think that what the company was doing was fair use under the implied license so no harm no foul.

Re:Work for Hire?

[lgw]

As I understand it, not being a lawyer, anything you write you own the copywrite on, by default. Every place I've ever worked for had a contract asserting their ownership for what I wrote.

Re:Work for Hire?

[Tsunayoshi]

While not specific, most likely the code was written to be in-house software for some specialized purposes. Why would you expect there to be a FLOSS equivalent out there?

We have a number of in-house specialty programs that I seriously doubt you would find a FLOSS equivalent for unless you undertook some ridiculously heavy modifications to a code-base somewhere. And since we have perfectly fine working in-house code, why would we ever do that?

The big point - who owned the code

[MyNameIsFred]

See this for more details. This issue appears to have been whether the company actually owned the source. The courts said yes.

Re:The big point - who owned the code

[Xentor]

+5 Informative... That link should be in the submission, not the news.com one.

Don't just read it yourself...

[the_rajah]

have a competent attorney read it, too. Us civilians don't always comprehend all the nuances in legally convoluted wordings.

Don't get too excited!

[bherman]

The difference between this software and say MS Office is that you don't "own" MS office, you have a license to use it but you do not have property rights on it.

AFAIK.

IANAL.

Re:Don't get too excited!

[panda]

The difference between this software and say MS Office is that you don't "own" MS office, you have a license to use it but you do not have property rights on it.

If I don't "own" it, and I'm "licensing" it, then I didn't buy it; I'm only renting it. If I'm renting it, then why do I pay sales tax on the (non)purchase? Why does a business pay property tax on its software when it is counted as a capital asset? If Microsoft still owns the software, then Microsoft should pay the property tax. Since they don't, I take it that means that they agree that I bought the copy of the software and that I own it.

Re:Don't get too excited!

[mschuyler]

No, I don't think so. You pay sales tax on anything leased, which is the same as renting, so I don't see how that argument holds. Your better argument is on property tax on capitalized software, but that depends on the state. Some states may very well tax tables, chairs, and software, but many just tax the building and reqal property.

Re:Don't get too excited!

[bherman]

From the MS Office EULA
3. RESERVATION OF RIGHTS AND OWNERSHIP. Microsoft reserves all rights not expressly granted to you in this EULA. The Software is protected by copyright and other intellectual property laws and treaties. Microsoft or its suppliers own the title, copyright, and other intellectual property rights in the Software. The Software is licensed, not sold. This EULA does not grant you any rights to trademarks or service marks of Microsoft.

Bolding added by me.

You bought the license, therefore the sales tax. You did not buy the software.

Re:Don't get too excited!

[Pofy]

> The Software is licensed, not sold. This EULA does not grant you any rights to trademarks or service
>marks of Microsoft.

Yet they DO sell it. Writing something else does not change the fact that many times such software are sold, for example in a shop. Doesn't matter if you like to call it something else or write something else. Even more, a third part can't change and revoke a purchase deal between me and the shop.

It is intresting to note also that "licensing" is bassically something non existant in laws regulating sales, leases, and such. Licensing is basically giving a permission to something that is forbidden. In this case, there is no such forbiden thing either. You may also try figuring out what happens if what you say is true if you do NOT agree to the EULA, or prior to even getting a chance to do so, perhaps on the way home from the shop. What is the "status" of the purchase you made then? Non existant? regulated by something you have not yet agreed to? Something else? The thing is, Microsoft DO sell it, they handle it like a sale and it is done like a sale, hence it is a sale. There are a whole bunch of laws regulating sales by the way.

Re:Don't get too excited!

[Tired and Emotional]

Note that the case does not disturb the copyright. It gives the "owner" of a legitimate copy certain rights. Its really more a question of fair use. For the purposes of the case, you can certainly make the case that you own the binary copy and are therefore entitled to modify it. You still would not be able to do anything you liked with it. For example, if there were portions of the code that were not enabled without payment of an extra fee, you probably could not modify the code to enable those portions. You certainly cannot distribute your changed versions. You probably cannot distribute the changes say, as a patch file, except under restricted conditions that would have to be elaborated by case law. Notice that Microsoft is claiming ownership of the rights in the software, not the ownership of the software itself. Their lawyers have probably already thought about this issue at length.

How can you get any more cut and dry?

[ShatteredDream]

The only way that the court might have ruled for him was if they paid him also to rent the software from him rather than transfer the rights to them. From the sounds of this ruling, it would seem to me like he needs to really start covering his ass from a countersuit by his former employer. Can you imagine someone with the gall to write a custom app for a client and then disable it when they feel that it is time to end their relationship with the client, without a rental agreement in place?

it's that word "essential"

[conJunk]

I reckon that in any anti-DMCA suit that tried to lean on this one, it would come down to the word "essential", where "rick-ass corporations protecting their proffit-making at the expense of fair use" is considered an "essential" aspect of the product.

Re:it's that word "essential"

[VGPowerlord]

I reckon that in any anti-DMCA suit that tried to lean on this one, it would come down to the word "essential", where "rick-ass corporations protecting their proffit-making at the expense of fair use" is considered an "essential" aspect of the product.

I think you mis-read the statement (or maybe were intentionally mis-reading it to take a stab at corporations), but it said that the changes must be essential to utilize the product.

DMCA Violation!

[Jtheletter]

So is there any reason why this programmer can't turn around and start another suit claiming that the company violated the DMCA when they "picked the lock" and circumvented his digital security measure without his permission?

How is this any different than when I remove the DRM from an iTunes song as "an essential step in the utilization" of that song in my other digital music player(s)? Afterall, I own a physical copy of the software - the encoded song.

Maybe that's not the best example but there are lots of others that I'm sure slashdotters can some up with.

How is it that copyright law allows a holder's utilization to trump the agreement they had in place to run but not alter the software, yet pretty much any shrinkwrap/click-thru EULA isn't overruled by this same copyright utilization clause? Article was very light on details. Stinks of corporate favoritism at first glance.

Re:DMCA Violation!

[Anonymous Coward]

Simple. The DMCA was not yet in effect.

Re:DMCA Violation!

[ArsenneLupin]

So is there any reason why this programmer can't turn around and start another suit claiming that the company violated the DMCA when they "picked the lock" and circumvented his digital security measure without his permission?

As other people have pointed out, the alleged violations happened before the DMCA existed. And no law is retroactive (or rather: no law should be retroactive)

Re:DMCA Violation!

[Jtheletter]

As other people have pointed out, the alleged violations happened before the DMCA existed. And no law is retroactive (or rather: no law should be retroactive)

Thank you for the informative response. I posted my comment early and had not yet seen any posts about the timing RE the DMCA.

My question now becomes - how is this compatable/handled with the DMCA currently? If this same case were to come up now would the company be prosecutable under the DMCA or would the copyright utilization clause still overrule it? I had some time to read a bit of the judge's opinion and some other comments and the answer seems to hinge on whether the company can claim ownership of the code. For personal examples of such behavior then we must split hairs over the issue of whether we own or license software or media we wish to alter w/o the creator's permission. I submit that in some cases (e.g. CDs) it is not entirely clear what is owned and what is licensed. Of course the "handy" shrinkwrap EULA on your software says that by opening it you agree that you are only licensing the code. But in a real way you do own the physical CD, so which is it? And if you in fact bought a right to license the software on the CD then why won't manufacturers replace said CD when it breaks? Afterall you didn't break the licensed code, you broke the physical medium but still have paid for the license. There's still a bit of a grey area for such things that may be pertinent given this ruling. In addition I personally believe that the legality of shrinkwrap EULAS need to be revisted in the courts. I know they have been demonstrated to be binding in precident, but they differ from other contracts in that you can modify and otherwise annotate and sign off on changes to a normal contract, whereas most EULAS offer the 'my way or the highway' approach. I think that there needs to be another legal option for a consumer to use a product without being unilaterally forced to agree to anything the company can fit in pt 2 font on a sticker on the cd case. Regards, ~J

Re:DMCA Violation!

[gg3po]

How is this any different than when I remove the DRM from an iTunes song

The only real difference, when you get down to it, is that you are just a lowly individual, and not a mighty corporation. In the case of music, the courts rule in favor of the DMCA, but in the case of a single programmer's code, they rule seemingly contrarily -- until we note that they again ruled in favor of a corporation. Notice an underlying theme developing?

The whole point of having massive quantities of seemingly contradictory laws on the books is to make it impossible for anyone to be a "law-abiding citizen". Anyone at any time can be randomly grabbed off the street and charged for any number of "crimes". This empowers the judiciary to effectually legislate on the fly in the courtroom -- picking and choosing selectively which laws will be ignored today, and which will be enforced -- to the benefit of "friends" of the state, and detriment of those who aren't so fortunate.

"The more corrupt the state, the more numerous the laws." Tacitus, 56-120 A.D.

"The greater the number of laws and enactments, the more thieves and robbers there will be." - Lao Tsu

"The number of laws is constantly growing in all countries and, owing to this, what is called crime is very often not a crime at all, for it contains no element of violence or harm." -- P. D. Ouspensky

Re:DMCA Violation!

[AthenianGadfly]

IANAL (nor even all that well informed) but my understanding of the DMCA is that it doesn't forbid actually circumventing DRM or other protections, but forbids disseminating information to others on how to do so. Feel free to correct me if this isn't right.

Re:DMCA Violation!

[Jtheletter]

my understanding of the DMCA is that it doesn't forbid actually circumventing DRM or other protections, but forbids disseminating information to others on how to do so.

IANAL either but in my readings of DMCA applications in the courts I think you're incorrect.
There may in fact be a clause that prohibits disseminating such information as well, but the brunt of the law is that you may not circumvent a digital encryption mechanism for any reason (more or less). The case with which I am most familiar is the Lexmark printer cartriges case which actually ruled in favor of the people circumventing the encryption - an arbitrary digital lock on printer ink cartriges soley to prevent 3rd party products. In that case the defendents were taken to court because they reverse engineered the lock and included it in their own product to circumvent the protection mechanism, but they didn't actually tell anyone else how to do it. The court found that there wasn't a legit reason for the lock in the first place and that it was only being used to prevent competition, and not to protect any actual IP (other than the IP of being the only people to know how to make an ink cartrige for lexmark printers).

But don't take my word for it - my word is sometimes hazy - in general I think your basic assumption about how the DMCA works is flawed and you should take a little time to read up on it. In fact, I probably should too. ;)

Re:DMCA Violation!

[angel'o'sphere]

How is it that copyright law allows a holder's utilization to trump the agreement they had in place to run but not alter the software, yet pretty much any shrinkwrap/click-thru EULA isn't overruled by this same copyright utilization clause? Article was very light on details. Stinks of corporate favoritism at first glance.


First advice: read the law.
Second advice: read more /.
Third advice: google?

any shrinkwrap/click-thru EULA isn't overruled by this same
All shrinkwrap/click-thru EULA are overruled by this same .... bla

Shrink Wrap or Click Throug licenses are compleetly void all over Europe. By LAW.
Most of Shrink Wrap or Click Throug licenses are compleetly void all over USA. By Court ruling.

Its so anyoing to read stories and commens where you NNTBAL (Not need to be a lawyer) to completely agree and to completely understand the ruling of a court in that situation.

For one thing: likely most /. readers think a judge is going to judge for "justice"? No he is not! He is a "CPU" that reads instructions (the law) and applies them to data (the case) and he only "moves outisde of the law" to prevent the program (the law) from crashing.

So all descissions of a court should be fairly easy to judge by a programmer or CS student that would bother to fucking read the law.

angel'o'sphere

Re:DMCA Violation!

[Jtheletter]

I'm a friggin robotics engineer man. I am rather intelligent, and already read /. too much. Couple things about reading the law as you suggest: 1) Not sure of where to find this information, copyright law is rather extensive and digging through it doesn't sound fun. 2) Have you ever read actual laws? I write complete system specifications that are Dr Suess simple compared to statements you find in most laws, hence the term "legalese" as in a totally different language. 3) I read the judge's opinion which included excerpts from the law as well as his interpretation of it. I understand his ruling in this case. What I don't understand is why then this shouldn't/couldn't be applied to any other case regarding DRM'd media* or progams as accessed/altered by your average Joe Programmer/Public. And if it can be then we should start applying it post-haste.

Also, simply stating that most click-through/shrink wrap EULAs are void in the US does little to undo the fact that you can't go a single day w/o having to agree to one. Claiming they are void is contrary to what I have gleaned over reading /. and similar case articles, not to mention that if they are all void then why the hell are they so prevalent? Clearly there is some legal basis for them elsewise they would have been phased out or explicitly forbidden by a court at some point.

I wrote my comment looking for clarification from someone who did know more about this than I so I wouldn't have to take the time to dig it up for myself. Granted you have to take what you get here with a grain of salt but every now and then you get someone who has correct information or even a good URL to it. The point of asking such questions on /. is not to then go out and do a thesis paper on them, but to hope that in the thralling mass of people reading this someone will know and answer.

*media was covered in the summary as not being applicable but I still think the case can be made (perhaps in its own suit) that cracking the DRM on a music file you legally own to use it on a different player would also fall under the utilization clause of copyright (if not outright fair use).

Wrong?

[gr8_phk]

"All work produced by a person during the course of his/her employment is owned by the employer, not the employee. Unless this guy had a special employment contract, or coded in his free time?"

IANAL, but I don't think that happens by default. That's why companies have you sign something that makes it explicit.

I interpret this as good news. It means you should be free to modify stuff you bought to make it do your bidding regardless of what the copyright owner may want you to do with it. This would seem to include running DeCSS to make data usable - well if not for the DMCA. Actually, wouldn't the company in this case be guilty of circumventing the "locks" the programmer put in place? That'd be a DMCA violation wouldn't it?

Not enough details in the article about the "ownership" of the code or the charges brought against the company.

Re:Wrong?

[Mr. Sketch]

Actually, wouldn't the company in this case be guilty of circumventing the "locks" the programmer put in place? That'd be a DMCA violation wouldn't it?

From TFA, this was filed in 1996, pre-DMCA. Now it would be a DMCA violation, but back then it wouldn't have been.

Re:Wrong?

[Proteus]

IANAL, but I don't think that [assignment of copyright to an employer] happens by default. That's why companies have you sign something that makes it explicit.

I'm not an attorney, either, but I have been an employer. The error of the statement above, and a similar line of thought in this comment below, is that everything in a contract is stuff that isn't already in the law. That's simply not true.

When you create a contract, you do it for a few reasons. One is to address things that aren't already covered adequately elsewhere. Another is to have a single document where all terms are agreed upon, to establish that all parties knew their rights and responsibilities -- even if they are already coded in law. Another is that terms in contracts are often easier to enforce than the same terms coded as law (in terms of suing someone for violation).

When someone hires you to create a work, they own the copyright under the doctrine of "work for hire". The contracts do a couple of things: they spell this out explicitly, and often extend the provision to works you were not directly asked to create.

Re:Wrong?

[jasen666]

I interpret this as good news. It means you should be free to modify stuff you bought to make it do your bidding regardless of what the copyright owner may want you to do with it.

I agree here. But I'm thinking more along the lines of game modding and related sites being safer from harassment with this ruling. Or any other kind of modification of software that I purchased. As I see it, after I buy it I'm free to tinker with my copy as much as I feel like it. So long as I don't break any other laws in the process, such as selling modified copies or something.

Re:Wrong?

[sribe]

When someone hires you to create a work, they own the copyright under the doctrine of "work for hire".

Wrong. You need to read the definition of "work for hire" in the copyright statutes. It means what the law defines it to mean, not what you think it ought to mean.

Re:Wrong?

[eokyere]

Wrong! when someone hires you, they _only_ own the work if there's a contract that explicitly says so; by default, the consultant (author) owns all works he/she creates... Refer: NOLO Patent, Copyright & Trademark, 7/e, Pg 75 & 76

Re:Wrong?

[EllisDees]

I think I agree with you. From the ruling:

"Titleserv moved for summary judgment on the basis of 17 U.S.C. 117(a)(1) (as well as on other grounds). Section 117(a)(1) provides an affirmative defense against copyright infringement for anyone who (i) owns a physical copy of a computer program, (ii) makes an adaptation "as an essential step in the utilization of the computer program in conjunction with a machine," and (iii) uses it "in no other manner." The district court, following the recommendation of Magistrate Judge William D. Wall, concluded there was no genuine issue of material fact and granted summary judgment in favor of Titleserv."

All you have to do is own a physical copy, and you are free to change it as you like. Just don't try and redistribute it.

Tests Two and Three

[IanDanforth]

"Provided that they own a physical copy of the program"

This test alone would directly contradict the DMCA, however the modification must also:

"constitute 'an essential step in the utilization' of the program"

and somewhat confusingly

"the software [must be] used 'in no other manner.'"

So what we're looking at here is a case where essential software can be modified, or if the program must be modified before it can be used. Then that's legal.

So my question is, doesn't this mean I can alter/crack/reverse any program I want if I need to get it running on a *nix box? Isn't that essential for most programs before I can use it?

-Ian

Re:Tests Two and Three

[DragonPup]

It's an interesting ruling.

From the first part(physically owning), it seems to refer to owning the media on which the source is on(the server at titlserv)

The second, I am assuming from the article, is implying that they changed the program to do maintance and fix some bugs so it would continue to work.

Here's my take on the third. 'In no other manner'. The program, from the article, was not altered to do something other than the original intent. It was altered to fix bugs. I dont think ripping/cracking/etc to a *nix would qualify because it changes the 'manner' of the program/whatever was to be run on a Windows box/DVD player/Whatever.

It seems to be a well reasoned decision, actually.

Own or license?

[metoc]

From the ruling:

Section 117(a)(1) provides an affirmative defense against copyright
infringement for anyone who
(i) owns a physical copy of a computer program,
(ii) makes an adaptation "as an essential step in the utilization of the computer program in conjunction with a machine," and
(iii) uses it "in no other manner."

So if you 'owned' a physical copy of a Windows word processing app, and you adapted it so that it would run under Linux (machine), and made no other changes, you would not be infringing on someones copyright. But does the law distingish between 'own' and 'license'?

Re:Own or license?

[Vivieus]

In short, yes.

Re:Own or license?

[Pofy]

> But does the law distingish between 'own' and 'license'?

There is no such thing or concept of "licensing" of copies. Licensing is used about the rights of a copyright holder, that is you gain such rights through for example licensing. That has nothing to do with the ownership of copies.

Re:Own or license?

[bwt]

This is correct, sort of. Copyright gives copyright holders certain exclusive rights. Among these rights are the exclusive right to authorize the creation copies and the exclusive right to authorize the creation of derivitive works. A "license" is an expression that such things are actually so authorized.

A computer program is copied onto a hard drive when it is installed and it is copied again into memory when it executes, though this copy isn't exactly a perfect copy, since the program state changes as the program's variables get values, etc... . This is a peculiar feature of software that Congress adopted 17 USC 117 (which this case concerns) to address. Accordingly, when you buy a copy of the software, by statute, you do not need a second license to install the program or a third licence for the in-memory copy to run it.

This exception applies to "a" machine, so you need to purchase one copy per machine you run it on --OR-- the copyright owner must authorize (aka license) you to make any additional copies. This is how network licenses work. You pay money and you can make more than the single copy the law gives you by default.

The concept of "software is licensed, not sold" comes from a bad (and I believe intentional) misinterpretation of this and traces it's origins to Microsoft (surprise). OEM computer makers used to received images of the operating system that they would copy to harddrives as part of the production process. Since they were making copies on more than one system, they needed a license. The particular terms of **ONE** such license had microsoft actually retaining ownership of the master copy from which the OEM's made their copies. MS could reclaim the master at any time, because it was their property and was "on loan", so to speak. So this master copy was, in fact, not sold and the creation of multiple copies from it was licensed. There was a court case (Microsoft v Harmony) where Harmony was this kind of OEM. The result of the case was Harmony lost becasue they were borrowing MS's master copy and MS really did have the right to take it back.

If you are not an OEM operating under a similar agreement, then the conclusion of MS v Harmony doesn't apply to you. Under the law, once a copy is made it is a normal "good" and it is property in the ordinary sense. The first sale doctrine says the copy owner, not the copyright owner, controls the sale of this tangibile asset. This is true because copyright only concerns authorizing the creation of new copies, not control of the property after they are created.

This case in TFA is significant, because it upholds the idea that you can actually change the software to add functionality beyond what was there originally in order to make it work on the single machine you use it on. This is exactly what the statute says in 17 USC 117, but because a couple courts have fallen prey to the "software is licensed, not sold" trap and wrongly applied it in a different context than what MS v Harmony actually applies to. Other courts have gotten it right, and so we are left with a big mess where the law conflicts. Sooner or later the Supreme Court will have to fix the mess.

Re:Own or license?

[The Sigil]

Yes. If you look at the definitions section of copyright, you'll notice that a "physical copy" is defined as the physical piece of plastic/magnetic tape/hard drive/whatever that the program is stored on. When you buy a piece of software, you OWN the physical copy so per 117.a.1.i you own the program. You cannot license a PHYSICAL copy, you can only own, rent, or lease it.

Re:Own or license?

[spikedvodka]

Here's my big one:

What exactly constitutes a "physical copy of a computer program"?

1) I have a hard drive with executable (object) code?
2) I have a hard drive with source code?
3) I have a print-out of source code?
4) I have a CD/DVD/other media containing either source or object code?

etc.

always leave room fir the lawyers!

Re:Own or license?

[dilute]

But it doesn't work that way. The EULA says that the software is licensed and not sold. I.e., that you agree to characterize your acquisition of the software as a license and not a sale. This isn't just some statement of opinion - by being in the EULA it supposedly reflects your own AGREEMENT to just that.

What the hell does an end user "license" mean, anyway, if anything other than that the software itself is "licensed"? What other "license" are you getting (other than a "license" to do what Section 117 -- if it applied -- would allow you to do without a license)?

Anyway, the case that the Supreme Court actually declined to review was an employer-employee dispute (no doubt an employee seeking to hold up his former employer because there was no written agreement and therefore he owned the copyright to what he had written). But the employee probably never had something resembling an MS-style EULA to protect HIM. So he probably had nothing to trump the employer's Section 117 rights (or implied license rights, etc.). Therefore the employer won. It wasn't as if the employer was going out with the software to compete with the poor guy. It was just a routine case, and the Supreme Court was utterly indifferent about stepping in.

Re:Own or license?

[Anonymous Coward]

What the hell does an end user "license" mean, anyway, if anything other than that the software itself is "licensed"? What other "license" are you getting (other than a "license" to do what Section 117 -- if it applied -- would allow you to do without a license)?

"License," in the context of EULA, means nothing. The word is being willfully misused to create legal ambiguity.

As a post-sale contract, EULAs fail to meet the most basic elements of validity. Particularly, consideration. The offer of a worthless license (worthless because you don't need it, thanks to 17 USC 117) in exchange for your agreement to be bound by the terms of the EULA is as invalid as an agreement to jump off a cliff in exchange for no dollars. Promises aren't immediately contracts -- consideration must exist and must be valuable.

As a pre-sale contract, EULA-type restrictions are probably valid. Where EULAs have been upheld, it is because a customer implies his acceptance, prior to the sale, by purchasing software he knows or should assume comes bundled with an EULA dictating further terms. (The analogy is to an amusement park, or a theatre, which has terms on the back of the ticket. The customer sees the terms only after the sale. But, a customer knows to expect that such terms exist, even if he doesn't explicitly know what they are when he buys the ticket). Thus the EULA is an extention of the sales contract, and there's valuable consideration in exchange for agreeing to it. This still isn't a "license" in the copyright sense of the word, and you still own the copy.

Re:Own or license?

[dilute]

That was the theory a few years back. These days, the prevailing view, I think, is that, really, you know about the "language on the back of the ticket" before you even walk into the software store (or click on the download button). Most of the legal world, I'm afraid, views this sort of thing as routinely enforceable.

Moreover, more and more transactions are starting to involve a pre-payment clickwrap "I Agree" button.

Re:Own or license?

[GigsVT]

, rent, or lease it.

Don't give them any ideas.

Not likely a DCMA issue

[RingDev]

He most likely ran the binaries through an obfuscator to make sure that any hard coded strings were appropriatly mangled and the code was not easily recoverable. That way, the code is "protected" but not encrypted and this would not fall under the DCMA's jurisdiction.

-Rick

Re:Not likely a DCMA issue

[EnderWiggin99]

ROT13 (and derivatives) is still encryption.

Re:Not likely a DCMA issue

[Mr. Sketch]

The DMCA does not apply. From TFA, this suit was filed in 1996, pre-DMCA.

Re:Not likely a DCMA issue

[quantum bit]

Where is the fine line between encoding and encryption drawn?

Is Unicode encryption?

Is UTF-8 encryption?

"Owning a copy" of a computer program

[MotownAvi]

This is pretty huge. From the PDF:

It is undisputed that Titleserv possessed executable copies of all the programs. The parties disagree whether Titleserv owned those copies within the meaning of 117(a). Krause claims that Titleserv never owned the program copies saved on its file server, but rather possessed the copies as a licensee pursuant to an oral agreement. Titleserv asserts that it owns copies of the programs because it paid Krause a substantial sum to develop them and has an undisputed right to possess and use them permanently.

(emphasis mine)

So suppose I go to CompUSA and buy Photoshop off the shelf. I paid a subtantial sum to Adobe, and I have an undisputed right to possess and use Photoshop permanently. Can I finally legally say that I own a copy of Photoshop?

Re:"Owning a copy" of a computer program

[www-xenu-dot-net]

Can I finally legally say that I own a copy of Photoshop?

Depends on how much you pay your lawyer, and the judge.

Re:"Owning a copy" of a computer program

[Anonymous Coward]

You are actually buying a license, as in, legal permission to use the software. You dont own photoshop, but you are in posession of a copy with a license to use that copy within the terms of the EULA.

It sucks when you "buy the software" and realise you don't really agree with the EULA.

I suppose you could try and return it.

Re:"Owning a copy" of a computer program

[paradizelost]

No, the company specifically paid the developer to write the program. they paid him a substantial amount, probably several thousand dollars or more, for said program. if you pay me $10,000 to write a program, you would assume that the program is yours, correct? not that i own it and have just licensed it to you for you to use. you paying $600 for photoshop from best buy, does not constitute a substantial sum of money, plus, you didn't hire adobe to write the custom program for you, they wrote it regardless of whether you were going to buy it or not. oh, btw, IANAL

Re:"Owning a copy" of a computer program

[Anonymous Coward]

I think it would hinge on the legal meaning of the word "substantial." I can't explain the legal reasons for it (I think they are mostly tax-related), but sometimes it makes sense to "buy" something for $1 instead of merely accepting it as a gift or offering something in exchange. So the word here could be used to exclude this sort of situation, in which case yes, you would own a copy of Photoshop. This would be the work-for-hire rule.

It could also refer to the portion of total development costs Titleserv paid to Krause. So if it cost Krause, for example, $1000 to develop the product, and Titleserv paid for $800 of it, that's "substantial." But if Titleserv paid only $300, then it's not. One case in which the latter might occur is if Krause contracted to several companies to develop the same product for them all, and they all paid a roughly equal share. In that situation, you would not own a copy of Photoshop because you are not paying for the majority, or even plurality, of development costs. This would also be work-for-hire, but specialized for the case where there is no single employer and you don't want to give them all co-ownership (which could be a legal nightmare).

Or, of course, "substantial sum" might be a vague English translation of the actual legalese, in which case it could mean anything at all.

Re:"Owning a copy" of a computer program

[Anonymous Coward]

Read your own quote...

"Titleserv asserts that it owns copies of the programs because it paid Krause a substantial sum to develop them..."

You didn't pay Adobe "a substantial sum to develop" Photoshop, you paid CompUSA a not-so-substantial sum to give you a copy of it. Period.

Apples and calculators.

Re:"Owning a copy" of a computer program

[jefu]

I think it would be best if we always bought physical copies of software in stores and insisted on opening them and reading the EULA's -- in the store -- on every purchase. Of course, if the EULA is not something you can agree to you can refuse to accept it before you pay. It would be even more fun to add a few minor modifications to a printed copy of the EULA and getting the store manager to sign off on it (as an agent of the developer/distributer).

Re:"Owning a copy" of a computer program

[Anonymous Coward]

What constitutes a substantial amount of money?

Re:"Owning a copy" of a computer program

[Josuah]

Titleserv asserts that it owns copies of the programs because it paid Krause a substantial sum to develop them and has an undisputed right to possess and use them permanently.

I'm copying this from the parent, so hopefully it's verbatim. I wonder what it means in this case to own copies of the program. Work for hire typically means the company owns _all_ copies of the program, and it is licensed for use by others. Consultant work typically means the consultant owns _all_ copies of the program (or photograph, or whatever) and the company has a license to use it.

But this wording seems to imply that some copies are owned by the company, and some copies are owned by the consultant. In other words, that there can be two owners. A copy is now being referred to in the same sense as a physical copy would be, such as a photograph. The right to derivitive works is solely in the rights of the copyright holder. Are these two owners copyright owners? Or are they owners in the sense of a physical object, such that I am allowed to destroy, draw on, etc. a photograph.

Hm...confusing.

Re:"Owning a copy" of a computer program

[NutscrapeSucks]

> If you pay me $10,000 to write a program, you would assume that the program is yours, correct?

No, I wouldn't, because that's not how copyright law works. It has nothing to do with how much money you paid or where you got it.

Re:"Owning a copy" of a computer program

[angel'o'sphere]

Can I finally legally say that I own a copy of Photoshop?

Yes, you can.

And if you think you need to run it on Linux, you can apply every modification you need to let it.

However, you may not distribue the modified program, as you have no right to disgtribute the original program.

If you have rights to distriute the patches, however, is likely topic to a lawsuit. I would say, no.But, I'm not sure.

angel'o'sphere

Simple!!

[mayhemt]

Use complex program logics & even foreign language words as your variables, function names, use complex boolean expressions to derive simple ORs/ANDs & (heck) no employer would be able to change the source code. they would have to start from scratch or put you back on that code.
(/my attempt of world domination)

Re:Simple!!

[quantum bit]

or save your source code, comment it, and keep a versioned repository like CVS or SVN at your employer's site (in addition to your own copies). You're a lot more likely to find employment doing programming again that way...

Re:Simple!!

[Anonymous Coward]

Not CVS or SVN. Use baz, bzr or git. It's easier to maintain multiple copies of the repository that way. It also provides automatic backups for the company in the event the "primary" server fails.

essential if your console isn't working

[Anonymous Coward]

Ripping a game *is* essential if you need to use an emulator to play it.

Windows source leaks...

[hackwrench]

Let the Windows source leak downloading commence!

But this also bodes good for the Tcpip.sys and UXTHEME.DLL patch, as well as all the other patches out there.

Definition of the ruling

[acherrington]

I think that a lot of people are jumping on the "I can get rid of the copyright protection on my CD/DVD/GAME/Etc...." band wagon. This isn't exactly correct.

The company involved owned the software... outright owned it. You must remember that when you purchase a copy of 99.99999999% of all works, you do not own it, rather you purchased a license for it. Bascially, they are saying you may mod your car or house, because you own it, but they haven't said anything about licensed software.

Re:Definition of the ruling

[Todd Knarr]

Actually that would be wrong. California never adopted the UCITA, so absent any other agreement the transaction's governed by the Uniform Commercial Code. I never signed any agreement to only license the software before the sale, so an over-the-counter sale occurred per the UCC. I own the copy I bought under those rules. I'd also note that the appeals court considered the same logic you're using and explicitly rejected it in their ruling when they discussed whether formal title was needed or not.

Re:Definition of the ruling

[aqfire]

The article makes it sound as though Titleserv did not own the copyright to the code. If there was an oral agreement and Krause owned the software, and it was copyrighted by Krause, then Titleserv's claim to own the software is not really correct. If the developer is hired by the company to create software without signing some sort of contract, then why should the company own it? If I pay you to make a program for me, do I own your code?

It seems to me that the company only has been granted the right to the software because it is a company rather than an individual. It seems that there been a lot of laws passed recently that have the effect of passing power away from individuals and toward corporations--I think the DMCA falls under that category. And if this is true, what does it mean for us as individuals?

Re:Definition of the ruling

[Anonymous Coward]

You are wrong.

From above:
"Krause claims that Titleserv never owned the program copies saved on its file server, but rather possessed the copies as a licensee pursuant to an oral agreement."

The case addresses specifically licensed software. In fact, one could even argue it makes no mentioned of owned software.

Also, Supreme Court rulings trump DMCA laws. If this comes up in a DMCA case, this ruling's precedent will make that part of the DMCA unconstitutional.

Re:Definition of the ruling

[egburr]

If I have never installed the software (and so never had the opportunity to "accept" the license), what is the status then? I have paid for a software package with no mention of licensing ever made as part of that transaction. I now own the copy I have. I do not own copyright, so I may not duplicate and distribute it. But, I do own the copy I have. There is no license agreement in effect.

If I copy the contents of the disk to my computer and start mucking about with it, I still have not been presented with a license request.

Why does clicking "setup.exe" and then the "let me use the software I purchased (I agree to license)" button suddenly mean I no longer own my copy?

Re:Definition of the ruling

[richardtallent]

License is a legal grant to "use" the program. Copyright is the legal protection to limit "distributing" the program (in original or derivative form). Ownership is the "bundle of rights" (First Sale doctrine, etc.) associated with legitimate physical posession of copies of the software.

Apples, calculators, and bears. In this case, the *license* was oral, the *copyright* was assumed to be with the programmer, but the *ownership* rights trumped the other two claims based on the types of changes made to the source code by the company.

Paying for the the development was not the only test for "ownership." Possession was the key, as was the oral license that allowed the company to "use" the program in perpetuity. The rights of ownership upheld by the court in this case uses the same tests as the next paragraph in the statute (the one that lets you make archive copies).

In other words, this is likely a very good precedent for anyone who purchases an expensive box of bits and then finds it riddled with bugs, incapable of essential functions, or incompatible with their current or future platforms.

This ruling is not out of line with the non-software world. Barring DMCA claims, car companies can't keep you from modding your car, and architects can't protect thier buildings from future modification or physical relocation. Posession still is 9/10ths of the law.

However, it remains to be seen how the courts will deal with DMCA-covered protections that prevent the user from exercising the very rights of ownership that this decision affirms.

Huh?

[Descalzo]

Are you serious? Fair is only fair as long as it benefits the people you like?
Remind me never to play any games with you.

I apologize if you are being sarcastic, but you never know.

We don't have sarcasm on Betelgeuse V.

Re:Huh?

[Monkelectric]

Im just saying the only chance we have of getting a "good" rulling is if its in a corporations favor, not that this ruling in itself is bad. I think history shows that the deck is stacked against individuals.

He wrote the programs in Clipper

[prgrmr]

So the chances of a DMCA violation are minimal. HTML Version of the ruling here

A little bit of his side

[Stanistani]

Krause argued that Titleserv never owned the program copies at issue, but rather possessed them as a licensee pursuant to an oral agreement. Titleserv countered that it owned the copies because it paid Krause a substantial sum to develop them and had an undisputed right to possess and use them permanently.

This quote is from:
HERE

Hoy! An oral agreement.
Legal, binding, but not provable in this case.

What if you own but have lost a key or media?

[SuperKendall]

Let's say you bought some software, and have a receipt to proove it - but then lose everything else. Since you have no installation key it would seem you have the right to crack the software you own in order to run it.

Modchips now legal?

[_KiTA_]

Does this count for modifying the bios (software) protection on systems such as the Playstation 2 and whatnot? Where does the limit stand between modifying software and modifying hardware that has software inside of it?

I would also point out that the PS2 comes with driver CDs. So presumably... you could modify it there, legally.

Right?

Re:Modchips now legal?

[Tarwn]

I think the legal source code ownership played a key role here. There is a big difference (relative big-ness is up for debate of course, or should be) between buying the source code and buying a product that utilizes the software. Same with people who earlier posted about trying to undo copy protection on CD's. In this case the company was supposed to legally own the source (or so I surmise) and therefore was trying to circumvent their own software. Now, whether they knew this was the case or believed they didn't legally own the software is of course a differant matter that probably could not easily be proven one way or the other.

Re:DMCA Violation! -- Flamebait?

[Jtheletter]

OK, usually I don't muck about with responding to mods but I really am curious why this was modded as flamebait? Yes, I wrote it in a hurry but all the questions I asked seem pretty valid and were definitely not addressed in the article or summary. It seems as though this judgement flies in the face of other laws and precidents that apply to similar cases with digital media and protection measures. I'm not bashing anything I'm looking for clarification!

And to note that this looks like corporate favoritism is qualified by "at first glance" as well as the fact that it looks like corporate favoritism at first glance. Seriously, how else does one explain the previously noted oddities in this judgement that seems to be letting a company off the hook while private citizens are prosecuted for extremely similar offenses that seem just as likely to fall under this vague "utilization right" of copyright?

I'm sure there's a legal explanation, but I think we need more information. Next time mod, think about whether the poster is in fact being flammatory and just spewing insults or if perhaps they're making relevant remarks and clarifying questions that are totally relevent and deserve to be answered. I'll even post this at '1' so you feel better about it.

You can't generalize it like that

[billstewart]

First of all, this wasn't a Supreme Court decision - it was a Supreme Court refusal-to-decide, which leaves the appeals court for whatever district the case was filed in governing the case in that district only. If the appeals court or the district court below it wrote a really good opinion, it can be influential in other cases in other districts, but it doesn't have to be.

Second, there were obviously contractual issues going on here. The news article doesn't say when or where the programmer wrote the programs, or whether he was a consultant or regular employee, or whether they were "work for hire", or what other contracts they had. It doesn't sound like typical work for hire by an employee, because that would normally be owned by the employer and the case would have been a slam-dunk way earlier. So the results of this case are likely to only be useful if you've got a similar contractual agreement, and we don't know what that agreement is because the article doesn't go into that kind of detail.

Re:You can't generalize it like that

[krbvroc1]

I made a similar clarification to the Eolas Appeal just the other day.

http://yro.slashdot.org/comments.pl?sid=167038&cid =13928638

Re:You can't generalize it like that

[Omniscientist]

Wow someone please mod this up +5 informative; parent is the only person that seems to be talking any sense. There was no ruling, they just refused to hear the case. The US Supreme Court only accepted around 80 cases last year and turned down thousands.

They aren't making any rulings or statements or anything like that. Hell, they denied the case without comment. Probably not important enough for their time. The assumption made by the submitter about anyone can now modify their software however they want is pure BS and sensationalism.

Re:You can't generalize it like that

[Raffaello]

In practice when the SCOTUS refuses to hear a case the highest appellate court ruling is treated as controlling law by other federal courts. If the SCOTUS lets a ruling stand then other federal courts, even in other districts will look long and hard before handing down a decision that goes against the ruling that the SCOTUS let stand. Federal judges do not like to be reversed by higher courts - its professionally humiliating. Essentially what's going on when a decision is overturned is that the SCOTUS or other appellate court is saying *BZZT* WRONG! What were you thinking when you made this ruling? It's BACKWARDS! Therefore, when the SCOTUS lets a ruling stand it becomes in practice controlling law on that/those issue/s because federal judges really don't like the public humiliation of having their decisions overruled by higher courts.

Re:You can't generalize it like that

[alphastryk]

yeah. in theory, at least for very similar cases, this will stand.

Re:You can't generalize it like that

[Anonymous Coward]

How is this offtopic?

Re:this is good to know... card reader

[Anonymous Coward]

It seemds to me that a cheap photo scanner and a bit of code should be able to read punch cards quite easily!

Why is that?

[Descalzo]

While I am afraid the reason is not a logical one, I really wonder why that is so. Why would this be okay for software but not movies nor music?

Actually, now that I reread it, your post doesn't really make such a claim one way or another.

Still, it seems reasonable that they would both be allowed if one is. Is there a real reason why there is a difference? Come to think of it, how is this different that me removing the catalytic converter on my car to make it run more effeciently? It's not like I'm trying to pull a fast one on GM, I just want my car to do what I want it to do. I like to use analogies like this, because IANAL, and IANAProgrammer.

A word used since 1807 is new?

[brokeninside]

From the OED: 1807 J. BARLOW Columbiad IX. 683 [To] Improve and utilise each opening birth, And aid the labors of this nurturing earth. And given that it's a pretty straightforward Anglicization of French or Italian, I would be quite surprized if it wasn't in utilization prior to the nineteenth century.

Two Issues

[olddotter]

What does this mean for all the people who own computers with MS Windows installed on them, and have a real need to change the code to fix bugs that constantly reduce productivity?

Since the company in question broke the "locks" the copyright owner put in place, doesn't that violate the DCMA? Wouldn't the DCMA make their actions criminal (as apposed to just a civil case)?

DMCA not DCMA

[Anonymous Coward]

I never realized how rampant dyslexia must be.
it is the Digital Millenium Copyright Act (DMCA) not DCMA

GPL implication

[GigsVT]

Surprised no one has picked up on the implication for the GPL.

Right now you don't need to agree to the GPL to compile/use/run GPL software, since those things don't trigger copyright protections.

But previous to this, if you modified it at all, copyright law kicks in and you must abide by the GPL, by modifying it, you stepped outside allowed use under "all rights reserved" and are thus you can only operate under the terms of the GPL.

Under this precedent, you can modify it even if it were released under "All Rights Reserved" and thus do not need to comply with the GPL.

This may have serious implications regarding possible GPL V3 clauses on internally modified GPLed software that is used as a network service. If you can modify the software within your rights under "All Rights Reserved" then you may not have to comply with any GPL V3 provision that says you must distribute source for internally modified GPL programs running as network services.

Re:GPL implication

[arkhan_jg]

Just a slight correction; the GPL v2 does not kick in when you modify the code - you already have that right, as copyright law has little to nothing to say about modification (the DMCA does, but that only applies to copy prevention mechanisms) - the GPL is not a EULA. You may or may not have the right to make local copies for personal use only without needing the GPL, but that depends upon your particular fair use rights in your area.

The GPL v2 only definitely kicks in when you want to distribute copies of the GPL software, which is otherwise illegal under copyright law. The terms are that you can distribute copies, as long as the new copies are also covered by the GPL, to whit, make available the source as well as the binaries. This defacto means if you want to sell or give away modified GPL software, you have to give them the modifications too. But only if you're distributing copies. You keep the modifications in-house, you don't need to give anyone anything, as the GPL is not needed to defend a case of copyright infringement; as you're not infringing copyright.

Since you already have the right of modification, this ruling won't affect existing GPL v2 software, as the ruling doesn't address reselling copies of modified software.

It's difficult to see how the GPL v3 is going to address the output of modified GPL software being used for network services; the GPL gains its strength from allowing more than copyright does, but at the price of sharing the source. Copyright law doesn't cover the output of programs, as it's not a derivative work. About the only way something like say, apache, could easily be covered is to force all web pages to include a copyrighted piece of GPL code, which then requires that the rest of the GPL software that generated that output to be made available as part of that 'bundling'.

Still, assuming they did find some legal trick, like modifying the output, or the legal 'hack' of saying extra copies into memory or locally on hard-drives count as copyright infringement (works in some places, but not others), and thus compliance with the GPL needed to do so; then the ability to modify software without needing to comply with the GPL would indeed make this court case a possible road block for the GPL team.

Note, IANAL, but this is my understanding based on discussions with people who are.

Re:GPL implication

[Dun Malg]

But previous to this, if you modified it at all, copyright law kicks in and you must abide by the GPL, by modifying it, you stepped outside allowed use under "all rights reserved" and are thus you can only operate under the terms of the GPL.

I thought GPL only came into effect when you wanted to distribute the modified code. As I understand it, you can (for example) run a kernel you've modified to work on your toaster and keep the code modification secret forever, so long as you don't try to distribute similarly modded "Linux toasters".

Re:GPL implication

[42forty-two42]

As I understand it, it's basically that if the program has a feature which causes it to dump its source, you can't disable or remove that feature without getting approval from everyone who touched the code since it was added.

Re:GPL implication

[GigsVT]

Just a slight correction; the GPL v2 does not kick in when you modify the code - you already have that right, as copyright law has little to nothing to say about modification

That just isn't the case. I had the same misconception until I was corrected, which caused me to read the copyright laws.

The owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

Note number 2. It doesn't say to distribute derivative works, it says to prepare them. That's why this precedent is even relevant, since it effectively guts that provision in some cases.

Re:GPL implication

[GigsVT]

You can, because the FSF said you can (in the GPL FAQ). And also because there's effectively no way to enforce anything unless you distribute it.

But copyright law does give authors exclusive rights to "prepare derived works", which means to modify a work did violate an "All rights reserved" copyright, even if you don't distribute it. This precedent changes that somewhat though, giving an exception.

It IS software on the CD/DVD

[a_greer2005]

When you break CSS/macrovision, you are modifing the software wrapped arround the content, not the content its self.

Wow, people, go back to HS Civics.

[torstenvl]

I fail to see how this is so sweeping as the OP makes it sound (even if he's technically correct on all counts).

Please realize that the Second Circuit only includes New York, Vermont, Connecticut, and Massachusetts.

Nobody in California -- or, say, Washington State -- is affected. Different circuit courts of appeals do NOT have to follow eachother's precedent.

PS -- Slashdot is going socialist. My little not-a-script-confirmation-word-in-an-image thing is "unionize"

Re:Wow, people, go back to HS Civics.

[Anita Coney]

But by refusing to hear the case, the United States Supreme Court is saying that the 2nd circuit is correct.

Re:Wow, people, go back to HS Civics.

[Zordak]

No, by refusing to hear the case, the United States Supreme Court is declining to set a nationwide precedent. Which, as the GP poster pointed out, means that this precedent applies ONLY in the 2nd Circuit. If the Supreme Court had agreed to hear this case, they would have set some kind of precedent (for example, saying the 2nd Circuit is correct). As it is, the 2nd Circuit is correct only within the 2nd Circuit. If you're in Louisiana, don't get too excited until the 5th Circuit rules the same way.

Re:Wow, people, go back to HS Civics.

[geomon]

If you're in Louisiana, don't get too excited until the 5th Circuit rules the same way.

Or rules just the opposite of the 2nd Circuit.

That would trigger a review by the SCOTUS and a decision one way or the other.

Re:Wow, people, go back to HS Civics.

[Zordak]

Not necessarily. It would just mean that the law in the 5th Circuit is different than the law in the 2nd Circuit. It happens quite frequently. When you start getting lots of divergent rules in the circuits, the Supreme Court often will sometimes intervene and issue a consistent ruling, but not always.

Re:Wow, people, go back to HS Civics.

[geomon]

Not necessarily. It would just mean that the law in the 5th Circuit is different than the law in the 2nd Circuit. It happens quite frequently.

True, but when the SCOTUS has been asked to review a decision once and it gets a second divergent opinion in a different circuit it is pretty likely that it will get a hearing.

Re:Wow, people, go back to HS Civics.

[Anonymous Coward]

I thought Slashdot was going Republican, because I got the word "NIGGER" as my confirmation word.

good link, but I disagree with your assessment

[ashpool7]

Not the source, a copy. Sometimes reporters muck this differentiation up, but even if it were a ownership of a copy of the source, it would still not be the same as ownership of the source.

First, it had to prove that it was the owner of a copy of a computer program. There was no dispute as to whether Titleserv possessed copies of the computer program, however, the concept of ownership is more complex. Krause contended that Titleserv was merely a licensee who possessed a copy of the computer program pursuant to an oral license agreement

Re:L33t-dissention

[ArsenneLupin]

If somebody PWNS a web site, he can legally do whatever he wants with it... as long as he respects proper procedure. Such as using an anonymizing proxy ;-)

This is HUGE

[John Murdoch]

Don't just RTFA--read the decision. In particular, note this conclusion on page 11:

We conclude in the absence of other evidence that Titleserv's right, for which it paid substantial sums, to possess and use a copy indefinitely without material restriction, as well as to 5 discard or destroy it at will, gave it sufficient incidents of ownership to make it the owner of the 6 copy for purposes of applying 117(a).4 7

This is the conclusion the court reached after some extensive discussion of what it means to "own" a copy of a piece of software. Key point: the court is ruling on a specific law referring to ownership of a copy of a program, NOT ownership of (or even access to) the source code. The court discusses at length what ownership means--and concludes with the paragraph above. In other words, if you...

• paid substantial sums of money
• have the right to possess and use it indefinitely without material restriction
• may discard or destroy it at all

...then you--as a matter of law--own a copy of the software.

How huge is this?
The immediate impact of this is to legalize reverse-engineering projects of custom software where the original coder can't or won't produce the source. The more interesting question is whether this legalizes the reverse-engineering of commercially-"licensed" software. On the one hand, this ruling makes it clear that--Microsoft's EULA to the contrary--I own several copies of Microsoft Office. On the other hand, the letter of the law, and the text of this decision, would seem to only permit me to use a disassembler to examine the code and fix bugs. Nothing--repeat--nothing in this decision would permit me to re-distribute that code. That's still very much an issue of copyright infringement.

So can I reverse-engineer my Sony rootkit CD?
Frankly, you shouldn't bother. You should take that rootkit CD back to Wal-Mart and tell them (in as loud a voice as you can muster) that you read "on the Internet that Sony's new CDs install a virus on your computer." But I digress....

Where this is interesting is that it appears to overrule the software industry's assertion that you and I are licenseholders, not owners. This may force a wholesale change in EULAs--where it may become extremely interesting is in the question of the U.S. legal doctrine of First Sale. This says that if you buy something, you own it. And if you own it, you can do anything you want with it--including sell it to somebody else. The licensee/owner distinction that software companies have asserted is intended to prevent the creation of a used software market. EULAs typically include language that prohibits you from selling the software "license" to anyone else without getting permission from the vendor first, or otherwise jumping through hoops. Various vendor "authentication" programs that tie serialized CDs to the MAC addresses of your computer essentially do the same thing--you have to get permission from Microsoft to subsequently "unlock" that software and install it on a different PC. Under the doctrine of First Sale, that's blatantly illegal--IF you own the software.

The bottom line:
You may reasonably conclude that software industry lawyers are going to be working overtime on this.

Re:This is HUGE

[Fegmaniac]

> In other words, if you...
1. paid substantial sums of money
2. have the right to possess and use it indefinitely without material restriction
3. may discard or destroy it at all
...then you--as a matter of law--own a copy of the software.
(Emphasis mine)

What this probably means is we'll see more and more EULAs that give us restrictive rights that are time-limited. That would break the ownership criteria, and leave us as licensees/subscribers. I'm not sure that's the direction I want this to head...

Re:This is HUGE

[Apotsy]

Where this is interesting is that it appears to overrule the software industry's assertion that you and I are licenseholders, not owners.

Which means it also invalidates the GPL, since that too, is a license.

Re:This is HUGE

[QuestorTapes]

> The immediate impact of this is to legalize reverse-engineering projects of
> custom software where the original coder can't or won't produce the source.

Possibly. Certainly it indicates a right to do some degree of reverse engineering, for the purpose of maintaining the utility of software for which you own a license.

This doesn't necessarily mean you have the right to reverse-engineer software for the purpose of extending it's use.

> ...the letter of the law, and the text of this decision, would seem to only
> permit me to use a disassembler to examine the code and fix bugs.

Possibly. I would argue that maintaining utility might involve more than bug-fixing.

The decision text: "Section 117(a)(1) provides an affirmative defense against copyright infringement for anyone who...makes an adaptation 'as an essential step in the utilization of the computer program in conjunction with a machine,' and (iii) uses it 'in no other manner.'

This would tend to indicate that making some adaptations to allow a Windows program to run, for instance, under Wine, might be permitted. Maybe.

> Where this is interesting is that it appears to overrule the software
> industry's assertion that you and I are licenseholders, not owners.

Certainly this indicates that the court feels we own -something- tangible, beyond a license for limited use.

> ...The licensee/owner distinction that software companies have asserted is
> intended to prevent the creation of a used software market.

Well, that is one part of it. Most of the EULAs that specify license don't try to restrict resale, unless the resale is prohibited as part of an upgrade deal.

> EULAs typically include language that prohibits you from selling the software
> "license" to anyone else without getting permission from the vendor first, or
> otherwise jumping through hoops.

I'm not sure that's true. I've seen such clauses, but I don't agree they are 'typical'

> Various vendor "authentication" programs that tie serialized CDs to the MAC
> addresses of your computer essentially do the same thing--you have to get
> permission from Microsoft to subsequently "unlock" that software and install
> it on a different PC.

If that were the sole and only purpose, then you'd be right. In fact, Microsoft's authentication expressly permits resale, and reauthentication is basically the same as always.

From Microsoft's Office 2000 EULA, but it's typical of all of them:

"Software Transfer. The initial licensee of the SOFTWARE PRODUCT may make a one-time permanent transfer of this EULA and SOFTWARE PRODUCT only directly to an end user. This transfer must include all of the SOFTWARE PRODUCT (including all component parts, the media and printed materials, any upgrades, this EULA, and, if applicable, the Certificate of Authenticity). Such transfer may not be by way of consignment or any other indirect transfer. The transferee of such one-time transfer must agree to comply with the terms of this EULA, including the obligation not to further transfer this EULA and SOFTWARE PRODUCT."

By limiting it to transfers direct to the end user, it does limit second-hand sales, but you could get around this by using a third-part that doesn't get too close to the transfer, like eBay.

> You may reasonably conclude that software industry lawyers are going to be
> working overtime on this.

Agreed :)

Re:This is HUGE

[neuroxmurf]

On the one hand, this ruling makes it clear that--Microsoft's EULA to the contrary--I own several copies of Microsoft Office.

What I personally find more interesting is that while you might now own several copies of Microsoft Office 2000 or earlier, no one can own Office XP or later, because you do NOT have the right to "use it indefinitely without material restriction" due to Product Activation (since all recent Microsoft/Adobe/etc software, which all uses Product Activation, can only be run for the limited time span that the companies deign to permit and can be revoked at any time with or without cause or reason.)

Unfortunately, this might encourage more use of Product Activation...

Corporation vs. One Guy

[istartedi]

What if it were the other way around? It will be interesting to see what happens when they try to use this as precedent when "one guy" is doing the same thing to a corporation. Even with this case as precedent, I've gotten to the point where I'm inclined to think the corporation has a better chance of winning than "one guy". This will be especially true if Alito is on the court. I'd say more, but I've got to file my incorporation papers. I figure it's the only way to guarantee full constitutional rights (and then some!) these days. Note, I'm not defending this "one guy". Sometimes Goliath is right and David is wrong, and this is one of those times.

Not in California

[Dhar]

California has a special labor law that says if a programmer produces work on his own time on his own equipment, the programmer owns it, not the employer. There's probably something in there about also not being a competitive product, but I've never toed that line.

I love that law. :)

-g.

nice, I need advice on this same subject...

[v3xt0r]

I developed a Web Application, and then integrated it into 500+ websites for a 'client' of mine.

I was hired as a '1099/contractor', although no formal/legal contract was ever negotiated or signed by either party.

I have since stopped working with this client, but they have in turn taken it upon themselves to modify an existing copy of the code I wrote for one of those sites, and are now re-deploying it to 500+ more of their new web sites.

Shouldn't I be entitled to sue them, or legally demand residual rights to use the code?

I assume not, but I'm no legal expert, and I could careless really, but it would be nice to charge them for the residual use of that code.

Re:nice, I need advice on this same subject...

[barfy]

In absence of contract, this was a "work for hire" and therefor they paid for it, they own it, and they can do with it what they wish.

Re:nice, I need advice on this same subject...

[v3xt0r]

oh well, it was horrible code anyhow! =p

Thanks!

Did the DMCA just get overturned?

[barfy]

Is there a line between software and copyright protection ?

It's in the subject ffs!

[ftoomch]

Did anyone else just stop reading at "Copywrite"?

Yes it is a Major Decision for Fair Use!!

[TRRosen]

from the ruling... The court ruled that the programer OWNED the copyright but the company could modify it as FAIR USE because it owned a physical copy!!

This a Major ruling for fair use. and could very well be applied to using mod chips etc.

Correction

[Zordak]

>> [In the 2nd Circuit] if someone owns a physical copy of software, then they are allowed to modify the code as part of their regular use, no matter what other agreements are in place.

This was a Second Circuit decision, which means this is only good law in the Second Circuit. If the Supreme Court had heard the case and affirmed the Second Circuit's decision, then that would have been the Law of the Land. If you're in any other circuit, you rely on this decision at your own peril

What a Dick !! Right On

[My_guzzi]

This is not about DCMA or any other horse shit. It is about some one who wrote some proprietary code for a company, got pissed off about a new boss and quit in a fashion similar to pissing on one's desk.

This was a frivolous law suite by this asshole. I wonder who financed it.

From the courts decision : " In 1996, Krause and Titleserv began negotiating Krause's assignment of the copyright in his programs to Titleserv in exchange for a five-year consulting agreement. On July 10, 1996, before any agreement was reached, Krause terminated his relationship with Titleserv after learning that Titleserv intended that he take direction from its new Director of Information Technology. When Krause left, he took his notebook computer, which contained the only copies of the source code for two of the programs. He left copies of the source code for the other six disputed programs on the Titleserv file servers because Titleserv had backup tapes, so that in Krause's words, "removing the source from the file servers would have been a meaningless gesture." Krause left executable versions of all eight programs at issue on Titleserv's file servers, but locked them with a command, which prevented a popular decompiler from converting the executable code back into source code."

"locked them with a command" WTFIT ?? can you say time bomb ???

can you sat DICK ???

Re:What a Dick !! Right On

[quantum bit]

Horse shit indeed...

Krause left executable versions of all eight programs at issue on Titleserv's file servers, but locked them with a command, which prevented a popular decompiler from converting the executable code back into source code."

Sounds like Visual Basic to me (1996 era VB "compilers" just converted the BASIC program to bytecode with an interpreter stuck on the front). Makes this idiot even more laughable.

Work for Hire

[redelm]

This was fairly obviously a "Work-for-Hire",which has special copyright protection, in essence it is the employers even if he later regrets that decision.

No ruling said he owned it they held a license

[TRRosen]

No ruling said he owned it they held a license ...and a physical copy (which in copyright terms is the ownership of one copy ...except in regards to music)

legal terms

[rodentia]

Lawyers have no monopoly on precision in language, despite their claims to the contrary. In fact, a fair amount of legal effort is expended in cleaning up imprecision because Law continues to rely on natural language. That is as it should be, as Law is a humane discipline.

The difficulty of legal jargon stems not from some greater degree of specificity, but rather from too great a reliance upon conventional (legal, precedential) usage. A good 85% of legal usage persists for its hoary connotative value (pointing to roots in Common or Roman law) and its ability to deter the uninitiated.

I see.

[Descalzo]

"I think history shows that the deck is stacked against individuals."

I think I get it. Thank you for clarifying. It seems like we're in the Old West, and we can't afford to hire lawyers, I mean gunfighters to protect our farms against the corporations, I mean cattlemen. They, of course, can afford all the gunmen they want.

Work Made for Hire

[PCM2]

When someone hires you to create a work, they own the copyright under the doctrine of "work for hire". The contracts do a couple of things: they spell this out explicitly, and often extend the provision to works you were not directly asked to create.

IAANAL, but while that certainly may be true and such a doctrine does exist, it is more specific than you seem to believe it is.

In order for a work that is created by a freelance contractor to qualify as a "work made for hire" (specific wording of copyright law), both parties have to specifically agree, in writing, that the work is a work made for hire. If no such agreement exists, then the contractor owns the copyright of the work. That's one good reason to have a contract if you are the one doing the hiring.

In addition, the work must fall into one of nine specific categories delineated by copyright law -- for example, it might be a contribution to a collective work. Generally speaking, if a contractor wrote a software program from whole cloth and nobody else ever touched the code and there was no understanding that anybody ever would, then that program could probably not be considered a work made for hire under copyright law. If if the contractor's code is part of a collective work, however, it still is not a work for hire unless the abovementioned agreement is in place.

The rules for employees are different. The employer clearly has the upper hand there.

Re:Work Made for Hire

[Dahan]

In order for a work that is created by a freelance contractor to qualify as a "work made for hire" ...
The rules for employees are different. The employer clearly has the upper hand there.

Yes, well, this thread is about work done by employees, not freelance contractors. Please re-read the thread and note:

All work produced by a person during the course of his/her employment is owned by the employer, not the employee.

IANAL, but I don't think that [assignment of copyright to an employer] happens by default.

Re:Work Made for Hire

[PCM2]

The distinction is not clear. Freelancers are also employed. They just are not employees. If you look at the court records for the original case in this topic, it looks like the guy was in fact a contractor.

Too Bad....

[Belial6]

Too bad this doesn't seem to apply to photographers. Somehow they can charge you work of taking the photograph, then charge you for the right to copy the image, then charge you for the film used to take the picture, and finally they charge you the negatives which are physically the same item as the film they already charged you for. "work for hire" doesn't seem to always automatically apply.

Re:Too Bad....

[PCM2]

See my comment "Work Made for Hire," above.

Re:Too Bad....

[Proteus]

That's because you didn't hire them, you contracted their company. They are not your employee. You don't technically 'hire' contractors either, you contract for their services. The law applies differently.

Also, the photographers have successfully argued that you don't contract them to create the end product, but to perform a service (they have a point, even though it annoys me to admit it). They own the copyrights to the products they create during the performance of that service. This is annoying, but the way it works.

That type of thing highlights why contracts containing the copyright assignment agreement are so important: there are just too many "gray areas" and loopholes in deciding whether the "work for hire" doctrine applies. It makes more sense, for an employer, to be explicit.

As a contractor, I also like the terms of such things spelled out, because it gives me opportunity to negotiate the terms. Typically, I have language altered from "any work created while contracted" to "any work created during the performance of contracted duties, or utilizing {customer}'s resources, equipment, and/or proprietary information." Otherwise, you run the risk of concurrent projects being nabbed by your customer.

Not a problem

[Anonymous Coward]

because the GPL only comes into effect when you distribute the derivative work. You don't have to agree to the GPL to edit any of the code or compile for your own use.

Parole Evidence Rule No Brainer

[Anonymous Coward]

As a former lawyer, I can say this case sounds like a no brainer. It sounds like he tried
to enforce an oral agreement (or at least argue such an oral agreement existed) when in point of fact he had nothing at all without rendering the agreement to writing. I have a written contract to pay you a lot of money for a computer program. We agree orally that you are only going to license me to use it and I won't own anything. Dumbshit--I own your code when you deliver and I pay. End of case. The court is not going to look any further than the way things might be expected to happen based on the writing, and your videotape of our conversation is not even relevant to the ownership issue. You delivered the goods and I delivered the money--done deal. Let's move on, nothing of interest here. To create some special rights you almost always need something written acknowledged by both sides (i.e., not merely an email "confirmation" sent by the coder). There are a lot of contractual interests you simply cannot enforce--and may not even be able to argue they existed in a courtroom--if they are not in writing.

punchcards

[Anonymous Coward]

I used punchcards as recently as my second CS course at the University of Michigan in the winter of 1983.

What the decision *really* means

[Anonymous Coward]

The article is misleading, and the comments appear to be based on many wrong impressions on what this case decided.

Firstly, they did not decide the the company had any copyright. The case does not explicitly say, however based on the decision it seems that Krause was a contractor, not an employee, otherwise the company would own the copyright. Either that, or the company had an incompetent lawyer who failed to plead that point, which would have seen the case summarily dismissed much more easily so that the more interesting stuff here would not have needed any discussion.

Based on the description of things from the court, William Krause is not just an arsehole without the slightest bit of integrity in his body, but is a seriously incompetent programmer who should never be allowed to work in the industry again. He wrote the software in such a way that the only way to add customers to it was to modify the software - no input form for this guy, just hard code customer details into the source code. There were other problems of this nature, but that one alone should tell you enough to know he is incompetent and you should avoid him. Then when he and the company parted ways, he told them they could continue to use the software but could not make any modifications to it. Since they could not add customers to it, this effectively meant they could not get any use out of it. That should be enough to make it clear this guy is a complete arsehole.

Now, under 17 USC 117(a)(2), the owner of a copy of the program (that is, not the owner of the copyright, but the owner of the physical copy) legitimately obtained, does not infringe by doing anything necessary as an essential step in using the software. The company made the modifications predominantly for the purpose of adding customers and related things that ought to be ordinary functionality of the program, but could only be done by modifying the code because of the way this incompetent had implemented the thing. They also fixed bugs, which the court found was an "essential" step in using the program.

The company also reformatted the code and gave variables meaningful names. Now that would appear to go beyond essential steps, but it could be argued that this was necessary in order to be able to make the other essential modifications. It does not strike me as going quite as far as "essential", but put yourself in the position of the judge who has before him (or her) such a lowlife plaintiff. You can't change the law, but whether the step is essential or not is a question of fact that the judge can decide - if it's close enough to the fuzzy areas, whose side are you going to go with? As it turned out it seems the plaintiff did not argue that directly, but if he had he would most likely have lost on that point too.

The company also made enhancements - to add stuff like cheque printing. The court found this essential by finding (as a matter of law) that making the program more useful to its owner is a part of utilisation, and modification is an essential step in doing that. This part does create some tension with DMCA provisions - is a game more useful if it does not require you to have its CD in the drive? There is certainly an argument to be made that "No-CD" modifications are legal under this rule. In Australia the tension of such an interpretation with its equivalent of the DMCA is resolved by Stevens v Sony, which would state that the CD checking code does not qualify as a technological protection measure since it does not prevent the copying, only makes the software useless if copied (in the wrong way).

The final point is the most interesting one from a geek point of view. TitleServ also made modifications to make the software work with their new computer system, and more importantly, their new Windows operating system. The court found that copying the software onto the new Windows operating system and modifying it to work with that is protected. How does that help geeks? Think of Wine! Using Microsoft components on Li

Re:What the decision *really* means

[NutscrapeSucks]

> Think of Wine!

My impression of MS's Windows-Only licence provision was to discourage software companies from doing "quick-ports" to Linux using Wine. In other words, it is still meant to be a distribution provision, not an end user runtime restriction. (The end user doesn't know what the licence of MSVCR70.dll is anyway.)

What about Wine?

[ClickOnThis]

I guess this means that MS can't stop you from running, e.g., MS Office under Wine. I recall that in the past MS has phrased their Office EULA so as to try to make it illegal to run it under a "non-approved" OS.

Of course, this is notwithstanding technical issues. I haven't ever tried to run MS Office under Wine, and it's not likely I ever will. When I need an office suite, I use OpenOffice.org.

what's a "physical copy"?

[adrianmonk]

Essentially if someone owns a physical copy of software, then they are allowed to modify the code as part of their regular use, no matter what other agreements are in place.

What defines a "physical copy" of the software? How could you possibly modify something you don't have a copy of? It seems like if you are modifying it, then you have a physical copy.

I have a bad feeling is that the distinction is going to come down to the media being removable or not, which would mean that internal hard drives aren't "physical", which is absurd. Or maybe it means that you must own media that contains the software and which originally came from the owner of the software. But what about software that you purchase for download only? Shouldn't the same rights apply?

This physical media distinction just seems like really bizarre and arbitrary reasoning.

Re:what's a "physical copy"?

[Anonymous Coward]

A "physical copy" is any copy.

A "copy" is a work fixed in a (necessarily physical) medium. If you download software, the copy is fixed on your hard disk. If you buy a CD, the work is fixed in the disc

The owner of a copy is not necessarily the same person who possesses the copy, so you can draw a distintion between the owner of a copy modifying it and the possessor of a copy modifying it.

precedent set

[ptr2004]

IANAL but i think the precedent set is that if a poor programmer sues a big company, The big company always wins

Re:Overstepping

[symbolic]

The contracts do a couple of things: they spell this out explicitly, and often extend the provision to works you were not directly asked to create.

This, at least in my opinion, is tantamount to an unconscionable agreement. By extension, it's where amployers get the cajones to claim that they own whatever you create, whether on your own time or not, so long as you are employed by the company. I believe this kind of "extension" is a little too extended, and if anything, I'd like to see this kind of one-sidedness curtailed- by law if necessary.

This silver lining has a ...

[museumpeace]

gold lining: my employer is a lot less likely to let me lug the codebase home now whereas before, certain that they retained all rights, the were happy to get a few more hours a day out of me.

NO THAT'S WRONG

[Anonymous Coward]

In the absence of a contract, the copyright of the original code is held by YOU! If you were a consultant ("1099"), not an employee, the code is yours.

The modifications belong to the THEM however. So it's basically a "joint copyright".

The deployment on further machines MIGHT be violating your copyright. You better ask a lawyer about this.

If no contracts were signed, and you left the software on their machines, they can use and modify it, but they can't "distribute" it outside the company. I'm not sure if they can distribute it "within" the company on more machines.

But really, ask a lawyer.

Thank you. Grandparent post is just *wrong*

[Anonymous Coward]

A work is not a "work for hire" unless it fits in one of the categories defined in the law AND the contract specifically calls the work a "work for hire".

"Computer program" loophole?

[tepples]

One could argue there's not a substantial difference in programs (a list of instructions a computer interprets to perform functions), music (a sequence of encoded signals a player interprets to produce a waveform), and movies (a sequence of images decoded/displayed by a player to produce a moving record of an event).

How would you get a federal judge to buy that argument? The Congress has defined copyright-related terms in 17 USC 101. A computer program is a "literary work", or a work that carries information in discrete symbols. A sound recording is an audio waveform that has been fixed in a tangible medium; the fact that it's digital is a technical detail in the method of fixation and does not make a sound recording into a computer program. A motion picture is a work consisting of rapidly displayed pictorial images with accompanying sounds.

Stare decisis

[tepples]

True, the Supreme Court hasn't handed down its own decision, so the decision isn't binding through the United States, but it has mildly approved the appellate court's decision by denying certiorari. The courts of appeals in one circuit tend to respect other circuits' decisions so that they don't create a schism among circuits, as such schisms tend to result in decisions getting overturned and circuit judges getting fired.

(Oh please, nothing about how the Ninth is the most overturned circuit. What's its overturn rate per capita?)

Re:Stare decisis

[Zordak]

The courts of appeals in one circuit tend to respect other circuits' decisions so that they don't create a schism

Sometimes, unless they disagree with them, in which case, they do what they want to do. Stare decisis refers to precedent binding in a jurisdiction. 2nd Circuit decisions are not stare decisis for any other circuit. They are persuasive authority, which means they carry as much weight as the judges decide to let them carry.

so that they don't create a schism among circuits, as such schisms tend to result in decisions getting overturned and circuit judges getting fired.

By definition, if the Supreme Court hears a case where there is a diametric split, somebody gets overturned. Beyond some bruised egos, there really isn't much consequence. As for firing Circuit judges -- They are Article III judges. That means their term of service ends on one of: a) They are convicted of an impeachable offense (almost never happens), b) They get tired of the black robes and decide to retire or c) They fall over dead at the height of their power and influence, Rhenquist style. You do not "fire" Article III judges. Nobody has that authority. That's by design.

Re:Stare decisis

[tepples]

That means their term of service ends on one of: [...] They get tired of the black robes and decide to retire

OK, you were right. However, do you know what "asked to retire" means in euphemistic talk? Or does that not happen in the Circuits?

Re:Stare decisis

[Zordak]

You can ask them to retire as nicely as you please, but what leverage are you going to hold over them to force it? You can't threaten to fire them if they don't resign. You can't discipline them. By Article III, you can't even reduce their pay. They are absolutely free and independent. Maybe you have a little tidbit of personal information? Perhaps you know that one of the justices has a gay lover. So what? They're never up for re-election or "re-nomination." They don't have to worry about approval ratings. And importantly, even if there was some allegation of misconduct, a ruling by itself can NEVER be misconduct for a judge. By definition, the cases before them are controversies. That means that people disagree. They cannot be held negatively accountable for doing their jobs. A judge can issue the most unfair and egregious They are pretty much invincible. That's why one of our professors calls them "The Little Dictators."

MOD UP

[Anonymous Coward]

Whew, a little clearer explanation than some of the other posts here.

Yes, when you have a legally obtained piece of software, and you don't have the copyright, and in the absence of any other contracts, you can *utilize* it any way you want, you just can't *copy* it. For instance, you don't need permission from the copyright holder to load it into your RAM or to change the bits on the disc.

This part of the law is rarely used, and if you ask a lawyer, he'll tell you to write a contract and NOT depend on it (because, you know, he makes money if you have him write a contract). But it's there, and this court case affirmed it. I think the last time I heard of it being used was in the 80's (IANAL).

This has nothing to do with music or movies because this part of the law refers to SOFTWARE programs. You can argue if a DVD is a simple software program or not, I guess.

Also the DMCA is a *separate* law that applies, if you violate the DMCA, shitty as it is, you are still violating copyright law.

Also, remember, this is in the absence of a CONTRACT.

Rental

[tepples]

There is no such thing or concept of "licensing" of copies.

Unless the copy is rented. For example, if you pick up a ps2 game at Blockbuster, you are not the "owner of a copy"; the Blockbuster store is. Now watch the proprietary software industry start offering 95-year leases instead of sales through the retail channel.

Re:Rental

[Pofy]

>Unless the copy is rented.

Of course, if you RENT sowftware, it is something completely different. Same as the difference renting and buying a car. However, I have never seen software for rent (although appearantly Blockbuster do it). In that case you still don't need a license however, the concept is "renting", and it is covered by same body of laws governing sales.

Re:Rental

[tepples]

However, I have never seen software for rent (although appearantly Blockbuster do it).

That's because renting a copy of a computer program other than one designed for a video game console needs the express permission of the copyright owner, and publishers of PC games rarely or never grant such permission in the midwestern Indiana.

In that case you still don't need a license however, the concept is "renting", and it is covered by same body of laws governing sales.

But once you loser "ownership of a copy" under the UCC, you lose the essential copying defense under 17 USC 117, which means that copying into RAM may infringe. In addition, a rental usually involves a signed agreement, and publishers can use this as a chance to disclaim warranties and prohibit actions toward interoperability.

Re:Rental

[Pofy]

>But once you loser "ownership of a copy" under the UCC, you lose the
>essential copying defense under 17 USC 117, which means that copying into
>RAM may infringe.

It really depends on how one should interpret the "ownership". It would make sense to include all type of legal possession of a copy for example. I assume one need to look at text written when the law was drafted, court cases and so on for that. Wasn't it something like that that this court decsiion actually said? Alternatively one could go over the "fair use". It seems clear that if they are renting you the program, you should be allowed to make such copies needed to use it without having a special additional permision needed. Seems like the rental contract in itself would be enough. Just a thought.

As a side question, since I am not american, although I have a pretty good knowledge of the us copyright law, but not as good as the swedish one (I am from Sweden), what would be the actual definition of a copy and when it is considered infringing? I know many countries have the copyright law not consider temporary copies, for example when you transfer something over the net or into ram and such are not considered actual copies and hence can't be infringing. As for the copying to the hard disc during installation, it might be slightly different though. Just wondering.

WTF?

[Rayin]

So let me get this straight. We now have the fair use doctrine, which is supposed to be a consumer protection that should, in theory, allow for personal modification of fairly and legally purchased material (including software). We also have the DMCA, which expressly forbids modifying such software if one has to bypass a security device to do so. And now we have a precedent saying that personal modification of software is legal. Good thing we've got all this cleared up...

You are spreading lies.

[Anonymous Coward]

Filthy lies which are not true. Stop doing it and instead educate yourself.

This is the new "copyright infringement is not theft" except that what you're saying isn't true.

Loser Developer if True

[dynamo92]

FTFA (actual earler ruling) -- "Many routine functions such as the addition of a new customer or a change of a customer address could be performed only by changing the source code." Please tell me that's simply an ignorant lawyer talking. Please please please.

Every copy is a physical copy

[Anonymous Coward]

Every copy is a physical copy. It's a tautology. 17 USC does not refer to "physical copies," merely "copies" and copies are the work fixed in any tangible medium of expression.

This doesn't invalidate the GPL

[John Murdoch]

Which means it also invalidates the GPL, since that too, is a license.

Hi!

Um, no. Nothing is getting invalidated here. And this doesn't affect GPL'd software, precisely because you (generally) don't pay substantial sums of money for it. (Remember that paying substantial sums of money was one of the criteria for ownership.) Even if it does apply to GPL'd software, so what? Nothing's changed: the whole point of Open Source software, regardless of the license, is that you can examine the source code and make modifications. This decision simply puts commercial software on the same basis: if you paid substantial sums to buy it, can use it indefinitely, and have the ability to discard it if you choose, then for purposes of interpreting the statute you "own" a copy of the software.

Re:This doesn't invalidate the GPL

[NutscrapeSucks]

It does invalidate some of the proposed ideas for GPL3 which address having to distrbute source code for web services/applications.

Basically, the FSF were hoping that the courts would restrict people's right to modify software under copyright law, but it looks like that's not happening.

Wasn't there a presidence?

[Anonymous Coward]

I remember that there was a case where a guy who owns a copy of AutoCAD decided to "enchance" the software by patching the binaries with menus items. He was sued and AutoCAD lost. I don't remember the exact case, but I think in this case, the court ruled correctly.

But what about multiple copies?

[phantomfive]

have the right to possess and use it indefinitely without material restriction

Then what is to prevent me from installing one copy of Windows on all my machines?

Essentially if someone owns a physical copy...

[aisnota]

"Essentially if someone owns a physical copy of software, then they are allowed to modify the code as part of their regular use, no matter what other agreements are in place." Okay, can someone chime in and say, if I own a binary, oops, Digital Millenium Copyright Act, does not mention exemptions for if you own the code, you can go in and modify it. Geesh, this sounds like a leak in DMCA big time if that is the real opinion and it carries into any devices I carry in my hand.

re: that is, if you equate photography to coding

[King_TJ]

The problem I've always had with this photography example is I've never quite been convinced the photographer's act of taking a picture constitutes a copyrightable work. I know the law currently seems to be treating it as such, but developing a software application requires construction from scratch. So does writing a book or a song or pretty much any other copyrightable work.

Taking a picture, on the other hand, seems like more of a "service industry" function. Yes, there is a great deal of skill involved in taking good photos - but it's technical knowledge, such as knowing the best shutter speed to select, the best placement of lighting, the right type and speed of film for the job, etc. I wouldn't expect to pay a carpenter to put in a new hardwood floor in a room of my house, only to find out he copyrighted my floor and retained all rights to it afterwards. That's how I feel about these wedding photographers and the like, claiming they own rights to pictures bearing the unique images of people I know personally. All they *really* did was creatively use a complex image-capturing device and provide the printed results on paper. Calling that copyrightable art is a stretch.....

You're buying a CD.

[Thu25245]

What is "sold" is a CD copy of the software. As it says, "you own the media on which the software is stored...." and that CD, the box it came in, and the instruction manual are your property, and can never be reclaimed by Microsoft or the retailer or anyone else, no matter what. That is the only thing that is being sold at the store.

The right to copy and execute that software are what is spelled out in the EULA. If you do not accept the EULA, then you are free to do whatever you want with the CD, box, and manual that you purchased. You could use it as a coaster, or a Frisbee, or to prop up a wobbly table leg. But if you want to break the seal and install the software, you'll have to agree to the EULA. And if, having "agreed," you violate it, then Microsoft can terminate your license, and insist that you destroy all "copies." (But you'll get to keep the original CD, manual, and box!)

I'm not aware of any court ruling that has struck down the legality of click-through EULAs. (Some clauses in certain licenses have been ruled illegal, but not the licenses in general.) So for now, when you break the sticker-seal or click Agree, you are effectively agreeing to a contract. And that contract is independent of your purchase of that box, manual, and CD.

Re: You're buying a CD.

[Anonymous Coward]

What is "sold" is a CD copy of the software. As it says, "you own the media on which the software is stored...." and that CD, the box it came in, and the instruction manual are your property, and can never be reclaimed by Microsoft or the retailer or anyone else, no matter what. That is the only thing that is being sold at the store.

Yes, that's exactly true. Of course, saying "you own the media on which the software is stored" is exactly the same thing as saying "you own a copy of the software." (Also, saying "you own the software" is exactly the same thing as saying "you own a copy of the software").

The right to copy and execute that software are what is spelled out in the EULA. If you do not accept the EULA, then you are free to do whatever you want with the CD, box, and manual that you purchased. You could use it as a coaster, or a Frisbee, or to prop up a wobbly table leg. But if you want to break the seal and install the software, you'll have to agree to the EULA. And if, having "agreed," you violate it, then Microsoft can terminate your license, and insist that you destroy all "copies." (But you'll get to keep the original CD, manual, and box!)

Actually, that isn't true. It's a lie and people on /. keep saying it over and over again, even though TFA covers the exact provision of the law -- 17 USC 117 -- (not to mention a judgment backing it up) that forms the basis for why what you just wrote is untrue.

The right to "execute" software is covered under 17 USC 117. It is not copyright infringement to copy software for the purpose of merely using it (that is: to copy it to install it on your computer, and to copy it into RAM in order to run it). "Mere use" of any copyrighted work is never copyright infringement (eg, reading a book or listening to music), and never requires a license from the copyright holder. But, software is unique in that it must be copied to be used. So, 17 USC 117 addresses this by saying that such copying is not infringement (notwithstanding that, without 117, it would be).

Now, if executing software is not infringement, why would you need a license (from anyone)? In a typical sale, I would not. So, if a company like Microsoft wants to compel me to agree to its terms, it has to offer me something as consideration other than a worthless license which I don't need. In other words, EULAs cannot apply as post-sale contracts between me and microsoft -- Microsoft is offering exactly nothing in exchange for my compliance with the EULA. If there is no valuable consideration, there is no valid contract.

In the US, EULAs have been upheld on the theory that the EULA is part of the sales contract, and thus the consideration in exchange for agreeing to the EULA is the sale itself. This hasn't been universally held in the US (EULAs have also been struck down), and such reasoning is flawed for many reasons (not the least of which is the parent's argument that Microsoft is a third party to the theoretical sales transaction between the retailer and the customer, and lacks standing to demand further terms.)

Re:You're buying a CD.

[Pofy]

>What is "sold" is a CD copy of the software.

Uhu, of course, what else would it be? That is exactly what I said.

> As it says, "you own the media on which the software is stored...."

There is no such distinction, the CD *is* the copy of the work in question (software in this case). Since this is the US, you might want to look at the US copyright law and its definition. Especially of a "copy" which is a material object including the media it is stored on. There is no such thing as "the media and the software" as seperate entities. here, a link for you:

http://www.law.cornell.edu/uscode/html/uscode17/us c_sec_17_00000101----000-.html

And if you are too lazy, here is the text:

"?Copies? are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ?copies? includes the material object, other than a phonorecord, in which the work is first fixed."

That is a copy of a work.

>The right to copy and execute that software are what is spelled out in the EULA.

The right to copy is covered and restricted by the LAW (copyright law in this case). For copying it is quite restrictive. Only if I need ADDITIONAL copying, that is forbidden by the copyright law, do I need any special licence. Otherwise I do not since there is nothing forbidding it.

There is no such thing as "right to use". It is not covered by copyright law and is not a special right of the copyright holder. As long as the use does not involve infringing actions, it is perfectly allowed without any sort of permision or license.

Re:You're buying a CD.

[Thu25245]

> "Especially of a "copy" which is a material object including the media it is stored on.
>There is no such thing as "the media and the software" as seperate entities.

Per your link:
A "computer program" is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.

"Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "copies" includes the material object, other than a phonorecord, in which the work is first fixed.

Wow. Separate definitions. Almost as if they were "separate entities." As if the "work" is distinct from the "material object."

My question to you is, how do you use, say, Microsoft Word 2003, without making a copy (see your definition) on the hard disk of a personal computer? It can't be run from the CD. You would need to duplicate this copyright-protected "computer program" to use it. And copying the software to your hard disk ("installing") would be an infringing act.

Unless you had received permission to make such a copy from the copyright holder.

Such permission is only granted to individuals who agree to the EULA.

Re:You're buying a CD.

[Pofy]

>My question to you is, how do you use, say, Microsoft Word 2003, without making a copy (see your
>definition) on the hard disk of a personal computer?

From the same place, check 117:

http://www.law.cornell.edu/uscode/html/uscode17/us c_sec_17_00000117----000-.html

So you can indeed make such copies if they are nessecar (which they obviously are).

>Unless you had received permission to make such a copy from the copyright holder.

So, I actually get it from the law instead.

Why not actually read the whole law before starting to make comments? So much easier.

Re: that is, if you equate photography to coding

[Mr. Slippery]

Taking a picture, on the other hand, seems like more of a "service industry" function. Yes, there is a great deal of skill involved in taking good photos - but it's technical knowledge, such as knowing the best shutter speed to select, the best placement of lighting, the right type and speed of film for the job, etc.

Photography can range from the technical (as you describe) to the artistic (considerations of composition, of what to shoot, of color balance, and so on). It's no different from other arts in that respect - writing ranges from poetry to instruction manuals, music from advertizing jingles (or wordless tone-sequences like the Intel "dum-do-de-do") to Bach.

Re: that is, if you equate photography to coding

[Invidious]

Well, I'm constitutionally obligated to take exception to this, even though I understand where you're coming from.

The taking of a photograph involves selecting and controlling a host of variables with nearly infinite granularity. (I'll use a film-based solution since it cuts out Photoshop and such.) The Photographer chooses the film that he's using, which will affect things such as color balance and pallette, granularity, contrast, and sharpness. The ISO of the film also affects his choice of shutter speeds, which will limit the circumstances under which he will be able to capture the type of image he wants.

The Photographer chooses a shutter speed in order to either freeze motion or to show it through motion blur. Now, does he show the motion by letting the subject blur, or does he pan with the subject while taking the picture to keep the subject sharp and blur the background?

The photographer chooses an aperature, which directly affects the depth of field of the subject. Do you want everything tack-sharp, or do you wish to isolate one particular element by keeping that sharp and letting everything else fall out of focus? In doing this, the photographer has to keep in consideration the size of the depth of field, and the plane of focus.

The photographer chooses a focal length, the choice of which can vastly affect the composition of the picture, the DoF, and a number of other things, even the way a face appears.

The photographer chooses where to place the elements of the image within the frame, which can have a profound effect on the final feel of the image.

The photographer chooses whether or not to use filters to modify the light entering the lens, and these filters can have dramatic effects -- a simple polarizing filter can change the look of an image immensely.

The photographer chooses what lighting to use, and this includes the control of a vast number of variables. When using natural light, one's options are more limited, but this is still a major consideration. Do you sidelight your subjects? Frontlight them? Backlight them? Light them from above or below? Use a combination? Take the picture in shade or hard sun? It all depends. The control of lighting is one of the most frustrating and critical elements of a photographer's job.

Finally, the photographer chooses the exact moment to capture. Being off by 1/16 of a second can change an image from something remarkable to something blah.

Printing the image can be a simple thing, or an extremely complex one in the case of black and white fine-art prints done in a darkroom. That is another subject entirely, far too complex to get into, and it is entirely an art.

This is what you pay for in a good photographer, and why it's an art. It may look to you like the photographer is just clicking a button, but the vast number of choices that aggregate, including some which are entirely stylistic, are what makes it an art. The photographer processes all of this data, makes his selections, often in only a few seconds, frames the picture, and takes the picture. Well, this is all assuming that you're using a professional photographer and not someone clicking away on automatic mode or something.

The thing is, the photographer does just what you said -- he made a unique image. Technical skills will give you a decent photograph, but the ways that you choose to apply these -- there are literally an infinite number of ways to capture the same scene -- are what makes it an art.

Frankly, programming is less of an art in comparison, and more of the 'service industry' job you say photography is: all that is is the application of a series of algorythms in order to solve a defined problem. The photographer is using a set of algorythms, too, but these are much fuzzier, and there is almost never one (or even a couple of) "best" solution. And the development of a software application is practically -never- from scratch any more. Common libraries, programming tools, APIs, and such make the

Precedent doesn't change squat

[fizbin]

It just points you to a section of copyright law you didn't know about. For computer programs, there is an explicit exception written into the law allowing modifications if:

1) Someone owns a copy of a program
2) The modifications are an essential step in the utilization of the program
3) The modified program is used "for no other purpose". I'm not sure what this means, but presumably it doesn't let you run a web service with a modified version of Word 5.

Written licenses are able to change all or most of this, by converting the case into one of contract violation instead of copyright infringement, but part of the point in this case was the lack of an explicit written license.

Re:Precedent doesn't change squat

[GigsVT]

That GPL relies on copyright law to determine when it applies, it does not rely on contract law the way an EULA does.

It does not apply until the person wishes to do something that would violate an All Rights Reserved copyright, at that point, they have the option to accept the GPL as a license from the copyright holder which would allow them to do things normally reserved for the owner of the work.

If they violate the GPL, it can't really be enforced as a contract, it would be enforced as a copyright violation.

Re:Precedent doesn't change squat

[fizbin]

I fail to see what this has to do with anything. You claimed that copyright gives authors exclusive rights to prepare derivative works, and that this precedent changes things.

I asserted that the right to preparing derivative works is not as absolutely exclusive with regards to software programs as you might think, and cite the Sect. 117(a)(1) exemption that's applied in this case.

You respond by saying that the GPL does not establish additional restrictions on recipients of GPL programs beyond what copyright requires. Okay - but that has nothing to do with my post.

Your claim that this precedent changes things is bogus. It may open your eyes to Sect. 117(a)(1), but the court didn't make that law; it was already on the books.

It appears that you were arguing that the GPL could be stronger, and not allow private modifications, if this precedent were not there, and that therefore this precedent weakens the potential strength of the GPL or something similar to the GPL. However, this precedent isn't what allows limited creation of derivative works provided "that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner" - the Copyright Act already allows that explicitly.

This precedent changes nothing fundamental, and only barely touches the boundary of what constitutes "an essential step in the utilization" of a program - the court looked to the case Aymes v. Bonelli (decided in 1992) to determine where the boundaries were, and this case fit within them.

There was nothing really noteworthy about this opinion, unless you count it noteworthy that pre-existing precedent was followed.

Re: that is, if you equate photography to coding

[nolife]

I am not discounting the complexity of taking the right photograph or trying to discount the art in any way but.. I could write an equally long and detailed description on how to replace a wheel bearing and brake pads, how to mix and master a sound board recording, how to diagnose and repair a vertical deflection circuit on a 27 in television, how to assemble a model airplane, how to do a good job hanging and finishing drywall, or how to detail and wax a car. Each requires a technical skill, practice, attention to detail, and patience to get it right. Getting the "right" photograph is not an absolute and is an opinion. ANYONE that can push a button and hold a camera can take a picture with decent equipment and a majority of the people looking at that actual picture would be decently satisfied with the results, it may not be the best, the lighting might be a little off but for the most part, it would be very acceptable to a majority of the general population. Throw in a little practice and maybe a basic understanding of photography and the results would be even better. How many times have you seen some random person get handed a camera and asked to take a shot for them? People are generally not picky or care about most of the things you described above. Maybe for the "hype" of a wedding where emotions and stress are involved everything must be right but that is the only time. Do you think you could ask anyone on the street to replace your wheel bearing, hang drywall for you, or hey quick, write me a software application that calculates the deflection of a piece of aluminum under load.

My points have nothing to do with copyright either. IMHO, if I want photos taken by someone, I want to pay them to do a job for me, the material they take and the chance to take those photos was at my request. I am paying for the expertise and their experience, just as a I would pay someone to do a professional job to pave my driveway.

Re:Overstepping

[Proteus]

Every employer and contract customer I've had has been willing to negotiate the exact language in the contract. This is the nice thing about contracts instead of laws: the parties can negotiate on what benefits them both.

Typically, contracts will say something to the tune of "any work created while contracted with the Customer shall be the property of the Customer." I typically change this to something along the lines of "any work created during the performance of this contract and utilizing equipment, resources (including paid time), or proprietary information belonging to the Customer shall be the property of the Customer." The exact phrasing varies, of course.

No one has any issues with such things, so long as you explain to them up front that you agree with them having ownership of what they've paid you to create, but that you want what you do for a second jobs or volunteer positions to be owned by those groups. I've never had anyone think this to be unreasonable.

ex post facto

[eglamkowski]

And no law is retroactive (or rather: no law should be retroactive)

Tax laws are frequently retroactive. And so far, the supreme court has upheld such ex post facto tax laws.

For example, tax rates being made retoractive in 2003:
http://www.irs.gov/newsroom/article/0,,id=109817,0 0.html

Here's a juicy one from 1993, retroactively applying a law back TWENTY YEARS into the past:
http://thomas.loc.gov/cgi-bin/query/z?r103:E06MY3- 263:

Plenty of other abuses are out there if you do some research.

If you can see no other reason to support the Fair Tax, abolition of the IRS should be plenty of reason enough.

Re:ex post facto

[Jtheletter]

I know, I know, I'm setting records here for responding late to comments, but:

If you can see no other reason to support the Fair Tax, abolition of the IRS should be plenty of reason enough.

If you think about it you realize that there will have to be a government agency to coordinate the collection of all these various sales taxes, to punish businesses that do not apply them or fail to submit the money collected on time or at all, and to be in charge of calculating and mailing out all these government checks that households will receive every month. So maybe it won't be called the IRS, but it will still be a centralized tax collection and regulation agency, i.e. the IRS. Just food for thought. Personally I oppose the Fair Tax for a number of reasons, but the #1 is that it can be passed with a simple majority, but undoing the income tax will require repealing an amendment which requires (IIRC) 2/3rds majority vote plus ratification by 75% of the states. I have very little confidence that the government will pass the fair tax and then repeal the income tax. Repealing is harder, and by that point they will have two legal methods of taxing us, a proposition that has warhawk neocons and other government spendthrifts drooling. That and about 50 other objections to it. Also, I object to income tax. My solution is to scale back the federal government to what the constitution allows/dictates, and to what little government we actually need, thereby reducing spending enormously. Right now the federal behemoth already spends way too much when it's on-budget and has no real penalties in place to dissuade it from defecit spending for any reason it likes.

Why OK for software but not movies/music

[brlewis]

It has to do with a 1980 US law that explicitly mentions computer programs. Clearly it was meant to eliminate the "every time you run a program you make a copy" argument that people still try to foist on everyone today. Apparently they didn't anticipate the "every time you open a file you make a copy" argument at that time.

whose rules?

[brlewis]

If you buy their product, wouldn't it make sense you have to follow their rules?

No, that makes absolutely no sense. When you buy a product it's yours.

The copyright holder has certain exclusive rights, and those rights are not infringed when you need to adapt a copy you own to use it. Copying CDs to audio tape to play in the car has always been considered fair use, for example, even when record companies could sell you both CD and tape versions.

ignoring EULAs

[brlewis]

In copyright terms a "license" is what you need if you're going to infringe the exclusive rights of the copyright holder. This case helps define what "essential" means in US statute. If your adaptation is an essential step in running a program that you lawfully own a copy of, then you are not infringing any exclusive rights and don't need a "license agreement" to permit you to make such adaptations.

EULAs are no different from other potential contracts. To be valid contracts there has to be "consideration" on both sides. E.g. you give money in exchange for rights. If you've already given your money for a copy and you already have the rights, there's no consideration and no contract. But some courts have held that a prominent notice on the outside of the package serves to tie an agreement to a copy you buy. For serious questions about whether you can ignore an EULA retain a lawyer.

"I did not have sexual relations..."

[tepples]

And importantly, even if there was some allegation of misconduct, a ruling by itself can NEVER be misconduct for a judge.

Doesn't prevent the judge's opponents from trying the same thing that some people tried against President Clinton: an allegation of sexual harassment or the like that potentially mushrooms into something impeachable.

Splitting hairs

[tepples]

And besides, isn't splitting hairs like that between programs and data like saying you can adapt the word processor but not to the extent where you can actually read any documents with it?

United States copyright law, especially as amended by the DMCA, is a mass of split ends.

Re: that is, if you equate photography to coding

[WNight]

Except that photographs are each given full-work copyright status, even if you blazed away at 5fps. In a movie, using a few full-res frames (screenshots) is very likely fair use in a review. Using five or six full-res photos in a review of a photographer's work won't be called fair use.

Photographs can be art (deliberate, etc), they can also be a random shutter press, full copyright status is given to both.

This is like following a poet around and copyrighting everything he utters, and individual words, so that "the" is one of his complete works.

Besides, copyrights should always remain with the people who commissioned the work. Anything else is just nuts. If you hire a builder to build a house, the house is yours. If you hire a wedding photographer to take your picture in your setting, your clothes, and your event, the photos should be yours.

EULAs and the Doctrine of First Sale

[John Murdoch]

"Software Transfer. The initial licensee of the SOFTWARE PRODUCT may make a one-time permanent transfer of this EULA and SOFTWARE PRODUCT only directly to an end user. This transfer must include all of the SOFTWARE PRODUCT (including all component parts, the media and printed materials, any upgrades, this EULA, and, if applicable, the Certificate of Authenticity). Such transfer may not be by way of consignment or any other indirect transfer. The transferee of such one-time transfer must agree to comply with the terms of this EULA, including the obligation not to further transfer this EULA and SOFTWARE PRODUCT."

Hi!

The Microsoft EULA that you mentioned--quoted above--is precisely the kind of language I was writing about when I raised the idea that the court decision will change EULAs. This example is written precisely to prevent a market in second-hand software: note that it stipulates a one-time transfer, and that the transfer must be made directly to an end user--it may not be an "indirect" transfer. In simple terms, if you install OpenOffice, you can't take your old copy of Microsoft Office down to the used CD shop and trade it for three or four Celine Dion albums.

The Doctrine of First Sale
One of the ways that the U.S. is not like Europe is something called the Doctrine of First Sale. In Europe you can sell a product with a series of restrictions--such as where it may be resold, in what condition, and at what price. If you've ever seen a disclaimer in a European book about how you cannot resell the book in any other cover than what you bought it in, and you cannot resell the book for anything other than the list price printed on the cover, you're seeing a restriction on further sale. In the U.S. that is simply, plainly, illegal (and European publishers typically preface those statements with words like "Except in the United States..."). In the U.S., under the Doctrine of First Sale, the purchaser of a product can do with that product what he will--with very few limitations. Some guy in Texas decided that his concept of art was digging holes in the ground and half-burying pink Cadillacs--G.M. was not amused, but the DoFS is pretty clear. The "artist" bought the Caddies fair and square, he can bury 'em in his front lawn if he wants to.

So do we own that copy of Microsoft Office, or not?
That's why this case is so huge: it provides a very, very simple test of ownership. An on-its-face reading makes it plain that I own several copies of Microsoft Office. That being the case, the established (and very, very stare decisis) Doctrine of First Sale would appear to invalidate Microsoft's restrictions on who, and how, and under what circumstances I can resell my copies of software.

Digression:
This is one of those times where I wish I had the time to do a graduate degree in economics. The way I see it, there's going to be a market blip in boat wax over this. Microsoft is going to get in a panic, which means they're going to bring in lawyers to review their EULAs and draft new! improved! versions. Which means the lawyers are going to have beaucoup billable hours in this quarter, which will translate in cash they'll have to "expense" before the end of the year to avoid paying taxes. Since they live near Lake Washington, they'll spend it on new boats. Which means they'll need to sell the old boat--and to spruce it up for sale, they'll buy a bottle of boat wax....

Re: that is, if you equate photography to coding

[Invidious]

If you hire a builder to build a house, the house is yours. If you hire a wedding photographer to take your picture in your setting, your clothes, and your event, the photos should be yours.


That's not necessarily true. Many architects retain the copyright to the design of a building.

If you want the copyrights to images, then you can get them -- you just have to buy the rights from the photographer. This costs more.