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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."
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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.
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?
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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?
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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.
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Normality is now: overrated.
it would make a great precedent except that it happened afterward.
See this for more details. This issue appears to have been whether the company actually owned the source. The courts said yes.
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.
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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.
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"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
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'?
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
"Most people in the U.S. wouldn't know they live in a tyrannical state if it walked up and grabbed their junk." - MyFirs
This is pretty huge. From the PDF:
(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?
You kids these days are something else. My archives go back to 1968, but I can't find a punch card reader anymore. ;)
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.
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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.
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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?
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.
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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.
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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.
We may not imagine how our lives could be more frustrating and complex—but Congress can. – Cullen Hightower
Don't just RTFA--read the decision. In particular, note this conclusion on page 11:
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...
...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.
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.
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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.
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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
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.
>What is "sold" is a CD copy of the software.
s c_sec_17_00000101----000-.html
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/u
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.
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
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.
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