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

Re:Precident

[fred fleenblat]

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

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: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.

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: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.

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.