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?

[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!).

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.

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.

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.

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'?

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.

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.