I really can't imagine why. Architectural works created prior to 1990 (e.g. the Sears Tower) are not copyrightable, and even copyrighted architectural works which are located in or visible from a public place may be freely photographed without risk of infringement. There is an argument that art attached to the buildings could pose a risk, however, but it can be a case by case basis, with the applicability of the 17 USC 120 exception applying (as in Leicester v. Warner Bros.) or, as a fallback, fair use. Outside of the US, YMMV.
Oh, certainly! If RIAA accuses someone of breaking a law, it is certainly a terrible burden on them to have to prove that, following the actual wording of the law Congress chose, an offense actually happened. Who among us hasn't had the same problem, from time to time?
If I went to Alice's bank, and demanded that they give me all of her money, because Alice died and left it to me, it would be a great hardship for me to have to show that Alice actually died, and actually willed the money as I claimed. Why, with the onerous burden of proof in my lap, I might not be able to collect anything! Just because there's an outside chance that she's still alive and doesn't know me from Adam doesn't mean that the bank shouldn't take my word for it.
I can say, absolutely honestly, that I have more sympathy with RIAA on this issue, than I have ever had with them on any other. Just don't ask me to prove it.
Cunard does transatlantic crossings with the QM2, and IIRC, several other lines have transatlantic and transpacific crossings too. Of course, there's not too many, it's not cheap, and it's pretty seasonal. But if your travel schedule and budget coincide with what's available, you can do it.
That's not a great idea. For example, you would make it illegal to sell used books without paying the copyright holder each time the books were sold, even though they were already paid from the first sale. Also, if you took clips from a movie, and used them as part of a movie review, which you sold copies of (imagine if Siskel and Ebert had been subscription-based), then it would be illegal, since you're not allowing for fair use.
Miller isn't that clear. In particular, the issue of what community's standards apply to purportedly obscene material on the Internet is completely up in the air at the moment. Is it the most restrictive community on the Internet? The least restrictive? Given that community was, in the past, defined as not being national, will it become national in a newly refined Miller test? Will the Court finally say that obscene material is protected speech, if only to spare themselves the headache of having to work out a new test or returning to the ad hoc days before Miller? Who knows.
Of course I recall the funny story that before Miller came along, the Justices and their clerks would sit down with popcorn and have a 'movie day' to watch the porn that was involved in the cases that they had to judge that term. J. Black didn't attend; he felt that they were all lawful. J. Stewart (the 'I know it when I see it' guy) was basically blind at the time, and had to have his clerks tell him what was going on. The joke the clerks are reputed to have told -- behind his back, one hopes -- is that from time to time he'd announce 'There it is; I see it.' He was also a fairly liberal guy on this subject; he had been in the Navy during the war, so he didn't find the porn that came to the Court in his day to be all that hardcore, by and large.
Anyway, this is a stupid plan of the FCC. I'd rather have the connection be unfiltered. If users want to filter it on their end, that's fine, and I wouldn't even care if the government provided them with software to help (provided that it 1) didn't include any blacklists, 2) was basically open, and not farmed out to a private contractor).
Does this mean that someone could challenge a treaty on the basis of constitutionality?
Yes, and such challenges have cropped up before, IIRC. I know that some have been upheld, but I don't know enough about the subject to know whether any have been overturned on that basis.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
First, it only grants supremacy to treaties made under the authority of the United States, which is to say, under the authority granted in the US Constitution to begin with. Treaties that directly contravene the US Constitution would be outside of the United States' authority to begin with.
Second, the part of the clause after the semicolon is directed at state judges, who under the previous government, tended to put their state first, and the United States second.
Third, whenever the US Constitution refers to itself, it uses the phrase 'this Constitution,' as you can see at the beginning of the clause. This gives credence to the argument that the phrase 'the Constitution' (which is only used here, and in the precise wording of the Presidential oath of office, where it wouldn't make sense to use 'this') refers to state Constitutions.
Fourth, English is really not as formal as you think, and certainly wasn't in the late 18th century. AFAIK there is no formal order of operators in our language. At most you can say that the wording used is awkward, but it's certainly valid as is.
Fifth, the bad interpretation of the clause would contradict the amendment process set forth in Art. V, which implies that it is an incorrect interpretation.
Sixth, if it were so, you'd think it would have come up in the past. Government officials often run into parts of the Constitution that they find inconvenient. If they could have circumvented them with a mere treaty, why haven't they ever done so?
Seventh, outside of people who read 200+ year old legal documents written in a highly dynamic language, and with no particular knowledge of the context in which it was written, or how it has since been interpreted, and who don't bother to look it up, but just blithely assume that their initial reading is the correct one, no one seems to have trouble understanding this. For example, in Reid v. Covert, the Supreme Court said:
There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates, as well as the history that surrounds the adoption of the treaty provision in Article VI, make it clear that the reason treaties were not limited to those made in "pursuance" of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights -- let alone alien to our entire constitutional history and tradition -- to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government, and they cannot be nullified by the Executive or by the Executive and the Senate combined.
There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty. For example, in Geofroy v. Riggs, 133 U.S. 258, 267, it declared:
No, you're reading it wrong. The US Constitution is the supreme law of the land; below that is federal law and treaties, which are both at the same level (and there's a last-in-time rule, so if a federal law and a treaty conflict, the newer one will trump); below that are state constitutions, and below that are state laws.
The clause you miscited is merely saying that (among other things) treaties are superior to state constitutions.
As for Kelo, I still fail to see the big deal with that, but that's neither here nor there.
Well, with computers, it's pretty easy. For example, suppose that someone on/. copies an entire news article into the thread, which is not unknown. When you load the page in order to read it, you're making a copy of it, including that article. If copying that article wasn't fair use or otherwise lawful, then it is an infringement. And since you're copying it too, you also are infringing. It doesn't matter whether you knew it, or intended to do it; only that you did do it. At best, you could only hope to have to pay a smaller amount in damages. In practice, of course, no one really cares about pursuing you for this. Still, I'm concerned about a law that can render huge swathes of people law-breakers, particularly when they don't know about it themselves, nor intend to be. My number one suggested reform for copyright is to exempt all natural persons from non-commercial conduct which is otherwise infringing. It will have a pretty big impact, but I think it would do the most to bring the law in line with societal norms.
Not that I expect to find myself on the wrong side of copyright law.
Really? I'm not trying to insult you or anything, but it is amazingly, astoundingly easy to infringe copyrights. And the bar is so low for criminal infringement, that that's very easy to run afoul of as well. I would be shocked if the vast majority of the people in this country were not routine infringers, in fact, and this is part of the reason that I support reforming copyright.
Whenever you start a business, it's a good idea to retain or at least consult with a lawyer licensed to practice in your jurisdiction, who is willing to take you on as a client. You might want to structure your business so as to limit your personal liability, you might want to make sure that you're not violating securities laws, you might want to look into 17 USC 512 -- a whole host of things, too long to get into here. And if you're sure you want to get into this line of work, legal counsel is a good first step before you even think of anything else, because you'll save yourself headache later by doing things correctly from the beginning.
I'm not your lawyer, and this isn't legal advice, but you really should seek some out.
However, it is true that distribution is the bit that triggers the ridiculously high penalties
No, all of the remedies are available for any type of infringement. It's more likely that a high-profile infringement case will tend to involve distribution, but it's not a requirement of the law. As for criminal infringement, some kinds of distribution are more easily infringing than others (or reproduction, or other forms of infringement), but in the end, there's plenty of ways to break that law, and distribution doesn't result in uniquely great punishment.
We agree though, that distributors are easier to catch than mere reproducers, and more worthwhile (from a prosecutor's or copyright holder's view) to pursue.
Hardly. There is just one work. Copies do not factor in here.
No, copies and copyrights are rivalrous. Creative works are nonrivalrous. It's true that there is just one work in question, but that work can be fixed in many different copies simultaneously, and fixing it in another copy doesn't alter the preexisting copies; nor does destroying a copy alter the remaining copies.
Works are not natural.
So? Information still behaves in certain ways according to natural law. Certainly no human being decided that a creative work should be able to be reproduced, but it can be nevertheless. You can enact a prohibition against it, but you can't eliminate the ability.
The founding fathers did.
No, that's not true. Jefferson, for example, did not subscribe to the Lockean theory of property. If you haven't read his McPherson letter, you should.
Our government does.
No, the Constitution adopts a utilitarian model of copyrights and patents, hence the "promote the progress" language. They were following the Statute of Anne, which does the same thing. The Supreme Court has pointed this out in the past.
Property in intellectual works is a centuries-old apparatus, and no society has ever advanced beyond industrialization without it.
Setting aside that there may not yet be anything beyond industrialization (as we're rapidly learning in the US), correlation does not imply causation. Taiwan did pretty well though, until they were successfully bullied by the US, who they need as an ally due to their precarious situation re: China. Still, it's certainly not beyond imagination that it could be possible. Of course, since I don't advocate abolishing copyright, I do wonder why you even brought this up.
You cannot have a privacy interest unless you accept property rights in intangibility. It simply cannot be done. If you don't have an exclusive right in your thoughts, actions, writings, and other expressions, there is no such thing as privacy. There's no framework to latch onto.
First, I have no problem with the idea of intangible property. Second, personal privacy isn't founded in copyright, or even related to it. Privacy stems from the right to life -- not merely to live, but to enjoy ones own life, and to be left alone in doing it. In fact, Warren and Brandeis, in their seminal article on privacy directly refuted the notion that copyright could be a basis for privacy! I really don't know where you're getting your ideas from.
One of the major sections in Wheaton is that the author DOES have a whole set of natural and fundamental rights in his works
Not upon publication, as I said. Authors do have a right as to whether or not to create their work, and whether or not to share their work with others. And that's it, unless a government should be formed and which enacts copyright laws.
The text of the holding explicity rejects the "everyone owns it" theory you advance.
Surely you mean the text that says "Congress, then, by this act, instead of sanctioning an existing right, as contended for, created it." I.e. that there is no existing copyright in published works, and in the absence of such exclusive rights, published works are in the public domain. That's the text you were thinking of? Which supports me and rejects you?
In the U.S., at least, current copyright laws hinge on the distribution of copyrighted materials. Downloading songs is fine, distributing songs triggers massive fines and jail time.
No, I'm afraid not. There are several different types of infringement, and distribution is merely one of them, no more or less important than the others. Reproduction is another kind of infringement, and downloading, regardless of whether or not there is later uploading constitutes reproduction, and is thus often infringing. It's just harder to catch downloading by itself, and it's the least efficient use of resources to bother, so it doesn't often come up. Still, the matter has been litigated a number of times, and is quite settled.
This is explicitly true in the USA: an international treaty supersedes US law and the US Constitution and Bill or Rights.
That's incorrect. In the US, a treaty is inferior to the US constitution, equal in rank to federal law (a last-in-time rule applies, so a federal law that is newer than a treaty will trump the treaty, and vice versa), and superior to state constitutions and state laws. And of course, many treaties are not self-executing, meaning that they themselves are not binding law in the US, and it is up to Congress to actually implement the requirements of the treaty as laws, which is entirely up to them.
People often misread the clause in the US constitution discussing this, so your misunderstanding isn't unusual, just unfortunate.
A license is simply a binding promise not to sue, and it underlies all transactions.
That is what a license ultimately is, but you're dramatically overinflating its meaning to the point of absurdity.
At tremendous cost to the consumer for separate R&D or structural redesign, because many of the feature differentiations are not modular and cannot be modular.
Only because they designed it with the expectation of the current regime. There's nothing magical in software development that prevents them from doing it the other way for the same cost. Since I would not object to having legal reforms kick in a while after enactment, so as to give everyone time to prepare, your point is pretty moot.
Further, much of the difference between licenses are not in the code, but in its uses. There is no way to enforce this scheme except through contract.
And I'm not opposed to contracts or even end user licensing to achieve those perfectly worthy goals. It's the use of adhesive licensing as to consumer transactions that bothers me. Negotiated contracts, and adhesive licensing amongst savvy merchants are fine. The UCC already tends to protect consumers more than merchants; I merely hope to see consumer protections brought up to date to respond to the latest threats. Were he alive, Llewellyn might well be concerned about the same thing. (And the great failure of UCITA, including the anti-UCITA statutes implies that I'm not alone)
If I have an orange, I can offer to sell you one segment. That does not mean you have an inherent right to take that segment, or any other part of my orange.
Your analogy fails pretty badly there, because creative works are nonrivalrous. As Jefferson noted, using your fire to light the taper of another person does not lessen what you have, even though it improves the other fellow's situation. Nature is set up in such a way that works are more shareable than not.
I don't know where you get this, but it is neither based in history nor in logic. Basic labor theory does not comport with this idea.
Oh, don't tell me you subscribe to that stupid Lockean nonsense. Creative works are not property; they're not capable of being merely lent or alienated, only enjoyed or shared. Merely investing your labor in something does not make it yours. An example: If you labor to make a nice garden for your house, it may raise the value of the neighboring houses merely due to their proximity to your house. But you're still not entitled to a penny of what your neighbors get for selling. Further, that modern copyright wasn't invented anywhere until the 18th century, and took a while to catch on (often by the unfortunate means of colonialism, to boot), suggests that a lack of copyright is the historical norm.
Free speech does not apply to the speech of others.
Oh yes it does!
If I perform Shakespeare, and I don't deviate from the script so much as one iota, then the words I am speaking are certainly not my own. Yet if the state attempts to censor me, I can assert my right of free speech and it's a forgone conclusion that I will succeed. Free speech absolutely encompasses the right to repeat the speech of others. We may temporarily cede that right of free speech in order to create a copyright system for the public good, but we're not even obligated to.
Without such rights, there can be no right of privacy.
The right of privacy is orthogonal to copyright. My spoken conversations in my house might be protected from eavesdroppers by a privacy right, but as they're unfixed, they're uncopyrightable. It is possible, in some circumstances, to abuse copyright so that it acts as a substitute for privacy rights. This isn't ideal, though. Copyright is meant to serve the public good by promoting the progress of science. Privately kept works fail to do this. Traditionally, publication was required for proper copyright protection, and I expect that we'll see that come along again. I don't mind a bit of protection for a manuscript that will be published, but it is not in the public interest to enable authors to sit on their works forever.
Copyright isn't a creation of a right. There can be no such thing. A law cannot create a right except where it is carving a hole out of a right previously denied.
Huh? There's lots of artificial rights. For example, my grandmother has no right to her Social Security checks, except that the government created that right out of whole cloth. If it ever shuts down the program, she'll have no recourse. But so long as it is willing to guarantee payment to people who meet the qualifications, she can force them to pay if they should fail to do so, since she is in the entitled class.
Back in Wheaton v. Peters, the Supreme Court pointed out that there is no natural copyright in published works. Authors only get whatever protection, if any, that Congress deigns to give them. They'd better be happy with it, since they won't get anything else.
You may be failing to understand the mechanics of copyright here.
Everyone has equal rights to do anything they please with the work. The public willingly sacrifices -- temporarily, and only to a certain degree -- their right to the author. The copyright consists of a bundle of exclusive rights, therefore: rights to exclude the public from doing certain things with the work. That is a negative right (like a negative easement) rather than a positive right to actually do anythi
The inherent rights of the owner remain controlling until ended by law.
They're not inherent, they're just controlling.
ABC creates a work. ABC owns every possible legally protected right to that work and has exclusive dominion over it. No other person has any right to it.
Well, there's your problem. Inherent rights are not the same as legally protected rights, which may be inherent or artificial.
In the absence of copyright -- the scheme of legal protection which creates some artificial rights -- only the inherent rights are left. They're easy to suss out.
ABC has a right to choose whether or not to create a work in the first place. He has a right to choose whether or not to share that work with anyone else. And he has the right to destroy the copies of the work that are in his possession.
That's about it.
Should he share the work with even one other person, that person has an inherent right to share that work further, regardless of ABC's feelings on the matter.
Copyright is a system of artificial, not inherent, rights vested in the author, but which spring from the consent of everyone else, since they are the ones bound by copyright, and they are the ones who empower the government to legislate in this field, for the public good, no less.
It goes without saying, of course, that contracts are no substitutes for copyrights -- mainly due to the issue of privity -- and that it's pretty dangerous, from a public policy perspective, to even get close. The inherent free speech rights that the others exercise to use ABC's work as they like, and which they may temporarily, and to a limited extent, sacrifice in the act of establishing copyright law, as they see fit, are of vital importance; more important than contracting.
ABC still retains, for the duration of copyright, any property right not explicitly denied to it by Title 17. Consumer XYZ has only acquired the rights purchased and secured by the Copyright Act.
You've got that backwards. There are no property rights in published (using that term very broadly) works outside of copyright law. And all of the XYZs of the world have all the rights in the work other than those temporarily ceded to ABC.
they are transferred to the public through the mechanisms of copyright and its expiration.
Nonsense. In the absence of copyright, the public would have the rights to the work to begin with. It's access to the work that they don't have an inherent right to. But, the market for works being what it is, it's usually no trouble to acquire.
If you want to acquire a copy, you do need a license.
So you are saying that if I want to buy a book at the bookstore, I need a license? I disagree. It's an ordinary conveyance of personal property, where the prior owner alienates his entire interest. Often, given 109, the copyright holder won't be involved at all. I've never heard of a bookstore where the books are just licensed to the people who take them off the shelves, pay at the counter, and walk out with them. Are you suggesting that the author has a reversionary interest in his books? That's novel, no pun intended.
Logical fallacy. 117 post-dates the EULA as a mechanism by two decades. It was also passed with the explicit intent, in 1998, to "preserve the status quo" (see HR Rep. 94-1476).
Well, bear in mind that the report mentioning the status quo refers to the original version of 117 from the 1976 Act, which really did do nothing of note. But it was replaced in 1980, with the relevant reproduction / adaptation / backup language. So the status quo didn't last that long. Basically, Congress had been waiting on CONTU, but didn't want to hold up the entire 1976 Act; the original 117 you referred to was a placeholder.
Were EULAs in use, particularly in consumer transactions, in 1976? In 1980? To be honest, I don't know. Does anyone reading this know? The practice certainly seems to have arisen in the microcomputer era, but it could easily have been in the early 80's. Certainly there had been a practice of freely sharing software prior.
Consumer confusion about implied licenses make that an utterly terrible idea.
Hence my preference for a patent parallel to 117 as a statutory solution. A reasonable statutory baseline strikes me as better than the chaos of having everyone license every damn thing individually. Perhaps that's alright amongst merchants, but it is no good for consumer transactions, where simplicity and uniformity are desirable.
I was thinking of games and the use of avatars and characters.
But are these uses trademark uses? If I wear my Mickey Mouse watch, I need no license from Disney to do so, because I'm not using it in any commercial way. There's no opportunity for consumer confusion or dilution by my simply wearing it and telling time with it. Why would this be so with software? It certainly doesn't seem to be an issue with, say, books. I can sell my copies of the books in the Harry Potter and the Endless Revenue Stream in a used bookstore and there's no trademark issues of note.
Just because some right is vaguely, possibly implicated in some way doesn't mean it's actually important. Real life is not an issue-spotting quiz.
The use of software to prepare works of commercial value or in business situations is not contemplated in the Copyright Act, because expressive works as tools are unusual (as is interactive art) and the language is not constructed to resolve the conflicts arising out of such licensure.
I could still go for an example. If I use MS Word as a mere tool to write a book, I can see no way that Microsoft would have rights in what I prepared.
One need look no further than Windows product versions. They may be arbitrary, and all licenses may be overpriced, but that is not within the purview of the law.
But MS can handle this just as easily by having the versions they ship actually be different, like an abridged book or a complete book. But I'd like to own the book, and be able to do any lawful thing to the book, and not be subject to an order to ignore every other page.
Customers have embraced the convenience over the freedom and generated billions of dollars in sales.
No, customers have not had a choice in the matter. No one is selling unencrypted DVDs alongside their encrypted DVDs. DVDs are more popular than VHS for a lot of reasons unrelated to the use of CSS. In fact, remove CSS, and you'd probably have seen them embraced even more.
First, a statute-based license does not itself confer upon the user the necessary rights to use the software.
First, I'm not suggesting that there would be a compulsory license, I'm saying there would be no license at all. I don't need to be licensed by the author to read a book, or by the composer or musician to listen to a CD. I don't need a license from a developer to merely use software, it's the copying and adaptation of software in the process of using it that is the tricky part. However, 17 USC 117 deals with that nicely.
including patents, trademarks, copyrights, publicity rights, and commercial uses
I can't speak as to patents, not being sufficiently familiar with that field, but I am dubious that a full-fledged EULA is necessary. Hell, an implied license would probably be enough to handle making and using embodiments of the invention in the ordinary course of using the software. A patent equivalent to 117 would seem to be a useful reform though, and not one that I had previously thought about. Thanks for helping me to the idea!
Trademarks strike me as a red herring; what trademark rights are implicated in an ordinary user using trademarked software? Ditto for publicity rights, which aren't even relevant for the vast majority of software.
Lastly, I have no idea what you mean by 'commercial uses.' Could you explain it?
Interactive works are usually associated with various explicit contracts
Tradition is not actually a reason to do anything.
This also pertains to disclaimers (though absent a EULA a simple notice might suffice for this particular concern).
Yes, most products that include warranty disclaimers, for example, generally get by without a EULA.
Third, modern software requires specific terms as a result of the existing case law with regard to unusual properties of software (the fact that it acts as a communications channel, that many modern applications will self-heal or have diagnostic reporting functions, software update functions, and/or are used to produce and/or distribute expressive works which may themselves be subject to legal protection, and others) that do not have any solid basis and require that customers be notified of these functions and their legal rights or responsibilities.
Now that's an interesting point. I'm not convinced, but I'll certainly think on that. Still, for a lot of software, particularly over the past few decades when EULAs were rampant but the sorts of features you mention were not, it doesn't lend much support to the practice of EULAs.
Fourth, unlike music CDs and DVDs, software is commonly licensed for specific machines or to specific numbers of machines. These varied licenses differ from a one-size fits all media license, and results in lower pricing, since consumers only need to purchase a license level for their specific purposes. The limitations on uses are contemplated in the price. These alternate licenses must be based in contract.
Yeah, but that's usually crap. Again, 117 is a superior solution. I recall that the maximalists claimed that DRM would improve the marketplace by allowing customers to choose from a plethora of differently-disabled copies to find the one that best suited their needs. As we've seen, it hasn't worked out.
Further, a EULA is an important tool for the disclosure and negotiation of third-party rights contained in most commercial software. E.g. Company Y licenses algorithm A to Company X for use in non-military applications including all transferrees and assigns; Company X puts the requirement in a EULA, such that end users are enjoined from that use per those terms. This sublicensing or third-party licensing must come from contract as well.
Disclosure can be handled in a mere notice, and again doesn't require actual licensure.
With some notable exceptions required by law, the freedom to contract reigns supreme. Sellers are free to set arbitrary restrictions; consumers can seek an al
If the EULA wasn't there, the software wouldn't be available
What makes you think so? There was a time when software was around but EULAs were not, and even today, plenty of software is distributed sans EULA.
I've never seen any point to EULAs. And I've never heard of a good reason for them from anyone else. Developers don't need them, at least not for common practices in the industry, and ordinary users don't need them in order to run or backup the software. Sometimes they're useful -- site licenses, for example -- but not for people getting something in a cardboard box at a bricks and mortar store. This being the case, and given how abused EULAs in particular, and adhesive licenses generally, tend to be, I'm all for mostly abolishing them as to consumer transactions.
If you know of a good reason to have a EULA, I'd honestly like to know. Better still if it's a reason that seems like a fair and reasonable business practice.
Yes, the law permits a citizen to do anything that is not against the law, but in the case of copyrighted works, the citizens targeted are the rightsholders. The customers only get the rights that are transferred to them; they don't have any inherent right to use the protected work of another.
Well, to be a little more precise, even copyright law does not prohibit the public from doing anything not expressly made an exclusive right of the copyright holder (as subject to various exceptions). So, for example, anyone can read a book, whether they are authorized by the copyright holder or not, because copyright doesn't include an exclusive right of reading. Only a few rights are covered by copyright, in fact. The public does have inherent rights to everything else as to the copyrighted work of another, and since the public empowers the government to grant copyrights in the first place, they really have inherent rights to the work anyway, they've just given up some of them temporarily for public purposes. There's no inherent right to force an author to create or to publish, but otherwise, the public makes the rules.
The EULA includes the option to reject it. And ProCD, the leading case for the enforceability of EULAs, supports the proposition that a EULA wouldn't be enforceable if you couldn't reject it and return the software for a refund. If people weren't supposed to be free to take advantage of the option, it wouldn't be there. So no, people shouldn't be stuck with it.
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I really can't imagine why. Architectural works created prior to 1990 (e.g. the Sears Tower) are not copyrightable, and even copyrighted architectural works which are located in or visible from a public place may be freely photographed without risk of infringement. There is an argument that art attached to the buildings could pose a risk, however, but it can be a case by case basis, with the applicability of the 17 USC 120 exception applying (as in Leicester v. Warner Bros.) or, as a fallback, fair use. Outside of the US, YMMV.
Oh, certainly! If RIAA accuses someone of breaking a law, it is certainly a terrible burden on them to have to prove that, following the actual wording of the law Congress chose, an offense actually happened. Who among us hasn't had the same problem, from time to time?
If I went to Alice's bank, and demanded that they give me all of her money, because Alice died and left it to me, it would be a great hardship for me to have to show that Alice actually died, and actually willed the money as I claimed. Why, with the onerous burden of proof in my lap, I might not be able to collect anything! Just because there's an outside chance that she's still alive and doesn't know me from Adam doesn't mean that the bank shouldn't take my word for it.
I can say, absolutely honestly, that I have more sympathy with RIAA on this issue, than I have ever had with them on any other. Just don't ask me to prove it.
There's really only one good thing that we should do with the moon:
CHA
Cunard does transatlantic crossings with the QM2, and IIRC, several other lines have transatlantic and transpacific crossings too. Of course, there's not too many, it's not cheap, and it's pretty seasonal. But if your travel schedule and budget coincide with what's available, you can do it.
That's not a great idea. For example, you would make it illegal to sell used books without paying the copyright holder each time the books were sold, even though they were already paid from the first sale. Also, if you took clips from a movie, and used them as part of a movie review, which you sold copies of (imagine if Siskel and Ebert had been subscription-based), then it would be illegal, since you're not allowing for fair use.
Really, your idea sounds absolutely horrible.
Miller isn't that clear. In particular, the issue of what community's standards apply to purportedly obscene material on the Internet is completely up in the air at the moment. Is it the most restrictive community on the Internet? The least restrictive? Given that community was, in the past, defined as not being national, will it become national in a newly refined Miller test? Will the Court finally say that obscene material is protected speech, if only to spare themselves the headache of having to work out a new test or returning to the ad hoc days before Miller? Who knows.
Of course I recall the funny story that before Miller came along, the Justices and their clerks would sit down with popcorn and have a 'movie day' to watch the porn that was involved in the cases that they had to judge that term. J. Black didn't attend; he felt that they were all lawful. J. Stewart (the 'I know it when I see it' guy) was basically blind at the time, and had to have his clerks tell him what was going on. The joke the clerks are reputed to have told -- behind his back, one hopes -- is that from time to time he'd announce 'There it is; I see it.' He was also a fairly liberal guy on this subject; he had been in the Navy during the war, so he didn't find the porn that came to the Court in his day to be all that hardcore, by and large.
Anyway, this is a stupid plan of the FCC. I'd rather have the connection be unfiltered. If users want to filter it on their end, that's fine, and I wouldn't even care if the government provided them with software to help (provided that it 1) didn't include any blacklists, 2) was basically open, and not farmed out to a private contractor).
Does this mean that someone could challenge a treaty on the basis of constitutionality?
Yes, and such challenges have cropped up before, IIRC. I know that some have been upheld, but I don't know enough about the subject to know whether any have been overturned on that basis.
There is no longer a US Constitution, or guaranteed rights. Every single guaranteed right no longer exists.
Well, they've been pretty good about respecting the Third Amendment, you've got to admit.
First, it only grants supremacy to treaties made under the authority of the United States, which is to say, under the authority granted in the US Constitution to begin with. Treaties that directly contravene the US Constitution would be outside of the United States' authority to begin with.
Second, the part of the clause after the semicolon is directed at state judges, who under the previous government, tended to put their state first, and the United States second.
Third, whenever the US Constitution refers to itself, it uses the phrase 'this Constitution,' as you can see at the beginning of the clause. This gives credence to the argument that the phrase 'the Constitution' (which is only used here, and in the precise wording of the Presidential oath of office, where it wouldn't make sense to use 'this') refers to state Constitutions.
Fourth, English is really not as formal as you think, and certainly wasn't in the late 18th century. AFAIK there is no formal order of operators in our language. At most you can say that the wording used is awkward, but it's certainly valid as is.
Fifth, the bad interpretation of the clause would contradict the amendment process set forth in Art. V, which implies that it is an incorrect interpretation.
Sixth, if it were so, you'd think it would have come up in the past. Government officials often run into parts of the Constitution that they find inconvenient. If they could have circumvented them with a mere treaty, why haven't they ever done so?
Seventh, outside of people who read 200+ year old legal documents written in a highly dynamic language, and with no particular knowledge of the context in which it was written, or how it has since been interpreted, and who don't bother to look it up, but just blithely assume that their initial reading is the correct one, no one seems to have trouble understanding this. For example, in Reid v. Covert, the Supreme Court said:
No, you're reading it wrong. The US Constitution is the supreme law of the land; below that is federal law and treaties, which are both at the same level (and there's a last-in-time rule, so if a federal law and a treaty conflict, the newer one will trump); below that are state constitutions, and below that are state laws.
The clause you miscited is merely saying that (among other things) treaties are superior to state constitutions.
As for Kelo, I still fail to see the big deal with that, but that's neither here nor there.
Well, with computers, it's pretty easy. For example, suppose that someone on /. copies an entire news article into the thread, which is not unknown. When you load the page in order to read it, you're making a copy of it, including that article. If copying that article wasn't fair use or otherwise lawful, then it is an infringement. And since you're copying it too, you also are infringing. It doesn't matter whether you knew it, or intended to do it; only that you did do it. At best, you could only hope to have to pay a smaller amount in damages. In practice, of course, no one really cares about pursuing you for this. Still, I'm concerned about a law that can render huge swathes of people law-breakers, particularly when they don't know about it themselves, nor intend to be. My number one suggested reform for copyright is to exempt all natural persons from non-commercial conduct which is otherwise infringing. It will have a pretty big impact, but I think it would do the most to bring the law in line with societal norms.
Not that I expect to find myself on the wrong side of copyright law.
Really? I'm not trying to insult you or anything, but it is amazingly, astoundingly easy to infringe copyrights. And the bar is so low for criminal infringement, that that's very easy to run afoul of as well. I would be shocked if the vast majority of the people in this country were not routine infringers, in fact, and this is part of the reason that I support reforming copyright.
Whenever you start a business, it's a good idea to retain or at least consult with a lawyer licensed to practice in your jurisdiction, who is willing to take you on as a client. You might want to structure your business so as to limit your personal liability, you might want to make sure that you're not violating securities laws, you might want to look into 17 USC 512 -- a whole host of things, too long to get into here. And if you're sure you want to get into this line of work, legal counsel is a good first step before you even think of anything else, because you'll save yourself headache later by doing things correctly from the beginning.
I'm not your lawyer, and this isn't legal advice, but you really should seek some out.
However, it is true that distribution is the bit that triggers the ridiculously high penalties
No, all of the remedies are available for any type of infringement. It's more likely that a high-profile infringement case will tend to involve distribution, but it's not a requirement of the law. As for criminal infringement, some kinds of distribution are more easily infringing than others (or reproduction, or other forms of infringement), but in the end, there's plenty of ways to break that law, and distribution doesn't result in uniquely great punishment.
We agree though, that distributors are easier to catch than mere reproducers, and more worthwhile (from a prosecutor's or copyright holder's view) to pursue.
Hardly. There is just one work. Copies do not factor in here.
No, copies and copyrights are rivalrous. Creative works are nonrivalrous. It's true that there is just one work in question, but that work can be fixed in many different copies simultaneously, and fixing it in another copy doesn't alter the preexisting copies; nor does destroying a copy alter the remaining copies.
Works are not natural.
So? Information still behaves in certain ways according to natural law. Certainly no human being decided that a creative work should be able to be reproduced, but it can be nevertheless. You can enact a prohibition against it, but you can't eliminate the ability.
The founding fathers did.
No, that's not true. Jefferson, for example, did not subscribe to the Lockean theory of property. If you haven't read his McPherson letter, you should.
Our government does.
No, the Constitution adopts a utilitarian model of copyrights and patents, hence the "promote the progress" language. They were following the Statute of Anne, which does the same thing. The Supreme Court has pointed this out in the past.
Property in intellectual works is a centuries-old apparatus, and no society has ever advanced beyond industrialization without it.
Setting aside that there may not yet be anything beyond industrialization (as we're rapidly learning in the US), correlation does not imply causation. Taiwan did pretty well though, until they were successfully bullied by the US, who they need as an ally due to their precarious situation re: China. Still, it's certainly not beyond imagination that it could be possible. Of course, since I don't advocate abolishing copyright, I do wonder why you even brought this up.
You cannot have a privacy interest unless you accept property rights in intangibility. It simply cannot be done. If you don't have an exclusive right in your thoughts, actions, writings, and other expressions, there is no such thing as privacy. There's no framework to latch onto.
First, I have no problem with the idea of intangible property. Second, personal privacy isn't founded in copyright, or even related to it. Privacy stems from the right to life -- not merely to live, but to enjoy ones own life, and to be left alone in doing it. In fact, Warren and Brandeis, in their seminal article on privacy directly refuted the notion that copyright could be a basis for privacy! I really don't know where you're getting your ideas from.
One of the major sections in Wheaton is that the author DOES have a whole set of natural and fundamental rights in his works
Not upon publication, as I said. Authors do have a right as to whether or not to create their work, and whether or not to share their work with others. And that's it, unless a government should be formed and which enacts copyright laws.
The text of the holding explicity rejects the "everyone owns it" theory you advance.
Surely you mean the text that says "Congress, then, by this act, instead of sanctioning an existing right, as contended for, created it." I.e. that there is no existing copyright in published works, and in the absence of such exclusive rights, published works are in the public domain. That's the text you were thinking of? Which supports me and rejects you?
In the U.S., at least, current copyright laws hinge on the distribution of copyrighted materials. Downloading songs is fine, distributing songs triggers massive fines and jail time.
No, I'm afraid not. There are several different types of infringement, and distribution is merely one of them, no more or less important than the others. Reproduction is another kind of infringement, and downloading, regardless of whether or not there is later uploading constitutes reproduction, and is thus often infringing. It's just harder to catch downloading by itself, and it's the least efficient use of resources to bother, so it doesn't often come up. Still, the matter has been litigated a number of times, and is quite settled.
This is explicitly true in the USA: an international treaty supersedes US law and the US Constitution and Bill or Rights.
That's incorrect. In the US, a treaty is inferior to the US constitution, equal in rank to federal law (a last-in-time rule applies, so a federal law that is newer than a treaty will trump the treaty, and vice versa), and superior to state constitutions and state laws. And of course, many treaties are not self-executing, meaning that they themselves are not binding law in the US, and it is up to Congress to actually implement the requirements of the treaty as laws, which is entirely up to them.
People often misread the clause in the US constitution discussing this, so your misunderstanding isn't unusual, just unfortunate.
A license is simply a binding promise not to sue, and it underlies all transactions.
That is what a license ultimately is, but you're dramatically overinflating its meaning to the point of absurdity.
At tremendous cost to the consumer for separate R&D or structural redesign, because many of the feature differentiations are not modular and cannot be modular.
Only because they designed it with the expectation of the current regime. There's nothing magical in software development that prevents them from doing it the other way for the same cost. Since I would not object to having legal reforms kick in a while after enactment, so as to give everyone time to prepare, your point is pretty moot.
Further, much of the difference between licenses are not in the code, but in its uses. There is no way to enforce this scheme except through contract.
And I'm not opposed to contracts or even end user licensing to achieve those perfectly worthy goals. It's the use of adhesive licensing as to consumer transactions that bothers me. Negotiated contracts, and adhesive licensing amongst savvy merchants are fine. The UCC already tends to protect consumers more than merchants; I merely hope to see consumer protections brought up to date to respond to the latest threats. Were he alive, Llewellyn might well be concerned about the same thing. (And the great failure of UCITA, including the anti-UCITA statutes implies that I'm not alone)
If I have an orange, I can offer to sell you one segment. That does not mean you have an inherent right to take that segment, or any other part of my orange.
Your analogy fails pretty badly there, because creative works are nonrivalrous. As Jefferson noted, using your fire to light the taper of another person does not lessen what you have, even though it improves the other fellow's situation. Nature is set up in such a way that works are more shareable than not.
I don't know where you get this, but it is neither based in history nor in logic. Basic labor theory does not comport with this idea.
Oh, don't tell me you subscribe to that stupid Lockean nonsense. Creative works are not property; they're not capable of being merely lent or alienated, only enjoyed or shared. Merely investing your labor in something does not make it yours. An example: If you labor to make a nice garden for your house, it may raise the value of the neighboring houses merely due to their proximity to your house. But you're still not entitled to a penny of what your neighbors get for selling. Further, that modern copyright wasn't invented anywhere until the 18th century, and took a while to catch on (often by the unfortunate means of colonialism, to boot), suggests that a lack of copyright is the historical norm.
Free speech does not apply to the speech of others.
Oh yes it does!
If I perform Shakespeare, and I don't deviate from the script so much as one iota, then the words I am speaking are certainly not my own. Yet if the state attempts to censor me, I can assert my right of free speech and it's a forgone conclusion that I will succeed. Free speech absolutely encompasses the right to repeat the speech of others. We may temporarily cede that right of free speech in order to create a copyright system for the public good, but we're not even obligated to.
Without such rights, there can be no right of privacy.
The right of privacy is orthogonal to copyright. My spoken conversations in my house might be protected from eavesdroppers by a privacy right, but as they're unfixed, they're uncopyrightable. It is possible, in some circumstances, to abuse copyright so that it acts as a substitute for privacy rights. This isn't ideal, though. Copyright is meant to serve the public good by promoting the progress of science. Privately kept works fail to do this. Traditionally, publication was required for proper copyright protection, and I expect that we'll see that come along again. I don't mind a bit of protection for a manuscript that will be published, but it is not in the public interest to enable authors to sit on their works forever.
Copyright isn't a creation of a right. There can be no such thing. A law cannot create a right except where it is carving a hole out of a right previously denied.
Huh? There's lots of artificial rights. For example, my grandmother has no right to her Social Security checks, except that the government created that right out of whole cloth. If it ever shuts down the program, she'll have no recourse. But so long as it is willing to guarantee payment to people who meet the qualifications, she can force them to pay if they should fail to do so, since she is in the entitled class.
Back in Wheaton v. Peters, the Supreme Court pointed out that there is no natural copyright in published works. Authors only get whatever protection, if any, that Congress deigns to give them. They'd better be happy with it, since they won't get anything else.
You may be failing to understand the mechanics of copyright here.
Everyone has equal rights to do anything they please with the work. The public willingly sacrifices -- temporarily, and only to a certain degree -- their right to the author. The copyright consists of a bundle of exclusive rights, therefore: rights to exclude the public from doing certain things with the work. That is a negative right (like a negative easement) rather than a positive right to actually do anythi
The inherent rights of the owner remain controlling until ended by law.
They're not inherent, they're just controlling.
ABC creates a work. ABC owns every possible legally protected right to that work and has exclusive dominion over it. No other person has any right to it.
Well, there's your problem. Inherent rights are not the same as legally protected rights, which may be inherent or artificial.
In the absence of copyright -- the scheme of legal protection which creates some artificial rights -- only the inherent rights are left. They're easy to suss out.
ABC has a right to choose whether or not to create a work in the first place. He has a right to choose whether or not to share that work with anyone else. And he has the right to destroy the copies of the work that are in his possession.
That's about it.
Should he share the work with even one other person, that person has an inherent right to share that work further, regardless of ABC's feelings on the matter.
Copyright is a system of artificial, not inherent, rights vested in the author, but which spring from the consent of everyone else, since they are the ones bound by copyright, and they are the ones who empower the government to legislate in this field, for the public good, no less.
It goes without saying, of course, that contracts are no substitutes for copyrights -- mainly due to the issue of privity -- and that it's pretty dangerous, from a public policy perspective, to even get close. The inherent free speech rights that the others exercise to use ABC's work as they like, and which they may temporarily, and to a limited extent, sacrifice in the act of establishing copyright law, as they see fit, are of vital importance; more important than contracting.
ABC still retains, for the duration of copyright, any property right not explicitly denied to it by Title 17. Consumer XYZ has only acquired the rights purchased and secured by the Copyright Act.
You've got that backwards. There are no property rights in published (using that term very broadly) works outside of copyright law. And all of the XYZs of the world have all the rights in the work other than those temporarily ceded to ABC.
they are transferred to the public through the mechanisms of copyright and its expiration.
Nonsense. In the absence of copyright, the public would have the rights to the work to begin with. It's access to the work that they don't have an inherent right to. But, the market for works being what it is, it's usually no trouble to acquire.
If you want to acquire a copy, you do need a license.
So you are saying that if I want to buy a book at the bookstore, I need a license? I disagree. It's an ordinary conveyance of personal property, where the prior owner alienates his entire interest. Often, given 109, the copyright holder won't be involved at all. I've never heard of a bookstore where the books are just licensed to the people who take them off the shelves, pay at the counter, and walk out with them. Are you suggesting that the author has a reversionary interest in his books? That's novel, no pun intended.
Logical fallacy. 117 post-dates the EULA as a mechanism by two decades. It was also passed with the explicit intent, in 1998, to "preserve the status quo" (see HR Rep. 94-1476).
Well, bear in mind that the report mentioning the status quo refers to the original version of 117 from the 1976 Act, which really did do nothing of note. But it was replaced in 1980, with the relevant reproduction / adaptation / backup language. So the status quo didn't last that long. Basically, Congress had been waiting on CONTU, but didn't want to hold up the entire 1976 Act; the original 117 you referred to was a placeholder.
Were EULAs in use, particularly in consumer transactions, in 1976? In 1980? To be honest, I don't know. Does anyone reading this know? The practice certainly seems to have arisen in the microcomputer era, but it could easily have been in the early 80's. Certainly there had been a practice of freely sharing software prior.
Consumer confusion about implied licenses make that an utterly terrible idea.
Hence my preference for a patent parallel to 117 as a statutory solution. A reasonable statutory baseline strikes me as better than the chaos of having everyone license every damn thing individually. Perhaps that's alright amongst merchants, but it is no good for consumer transactions, where simplicity and uniformity are desirable.
I was thinking of games and the use of avatars and characters.
But are these uses trademark uses? If I wear my Mickey Mouse watch, I need no license from Disney to do so, because I'm not using it in any commercial way. There's no opportunity for consumer confusion or dilution by my simply wearing it and telling time with it. Why would this be so with software? It certainly doesn't seem to be an issue with, say, books. I can sell my copies of the books in the Harry Potter and the Endless Revenue Stream in a used bookstore and there's no trademark issues of note.
Just because some right is vaguely, possibly implicated in some way doesn't mean it's actually important. Real life is not an issue-spotting quiz.
The use of software to prepare works of commercial value or in business situations is not contemplated in the Copyright Act, because expressive works as tools are unusual (as is interactive art) and the language is not constructed to resolve the conflicts arising out of such licensure.
I could still go for an example. If I use MS Word as a mere tool to write a book, I can see no way that Microsoft would have rights in what I prepared.
One need look no further than Windows product versions. They may be arbitrary, and all licenses may be overpriced, but that is not within the purview of the law.
But MS can handle this just as easily by having the versions they ship actually be different, like an abridged book or a complete book. But I'd like to own the book, and be able to do any lawful thing to the book, and not be subject to an order to ignore every other page.
Customers have embraced the convenience over the freedom and generated billions of dollars in sales.
No, customers have not had a choice in the matter. No one is selling unencrypted DVDs alongside their encrypted DVDs. DVDs are more popular than VHS for a lot of reasons unrelated to the use of CSS. In fact, remove CSS, and you'd probably have seen them embraced even more.
Well, briefly, given what happened in la
First, a statute-based license does not itself confer upon the user the necessary rights to use the software.
First, I'm not suggesting that there would be a compulsory license, I'm saying there would be no license at all. I don't need to be licensed by the author to read a book, or by the composer or musician to listen to a CD. I don't need a license from a developer to merely use software, it's the copying and adaptation of software in the process of using it that is the tricky part. However, 17 USC 117 deals with that nicely.
including patents, trademarks, copyrights, publicity rights, and commercial uses
I can't speak as to patents, not being sufficiently familiar with that field, but I am dubious that a full-fledged EULA is necessary. Hell, an implied license would probably be enough to handle making and using embodiments of the invention in the ordinary course of using the software. A patent equivalent to 117 would seem to be a useful reform though, and not one that I had previously thought about. Thanks for helping me to the idea!
Trademarks strike me as a red herring; what trademark rights are implicated in an ordinary user using trademarked software? Ditto for publicity rights, which aren't even relevant for the vast majority of software.
Lastly, I have no idea what you mean by 'commercial uses.' Could you explain it?
Interactive works are usually associated with various explicit contracts
Tradition is not actually a reason to do anything.
This also pertains to disclaimers (though absent a EULA a simple notice might suffice for this particular concern).
Yes, most products that include warranty disclaimers, for example, generally get by without a EULA.
Third, modern software requires specific terms as a result of the existing case law with regard to unusual properties of software (the fact that it acts as a communications channel, that many modern applications will self-heal or have diagnostic reporting functions, software update functions, and/or are used to produce and/or distribute expressive works which may themselves be subject to legal protection, and others) that do not have any solid basis and require that customers be notified of these functions and their legal rights or responsibilities.
Now that's an interesting point. I'm not convinced, but I'll certainly think on that. Still, for a lot of software, particularly over the past few decades when EULAs were rampant but the sorts of features you mention were not, it doesn't lend much support to the practice of EULAs.
Fourth, unlike music CDs and DVDs, software is commonly licensed for specific machines or to specific numbers of machines. These varied licenses differ from a one-size fits all media license, and results in lower pricing, since consumers only need to purchase a license level for their specific purposes. The limitations on uses are contemplated in the price. These alternate licenses must be based in contract.
Yeah, but that's usually crap. Again, 117 is a superior solution. I recall that the maximalists claimed that DRM would improve the marketplace by allowing customers to choose from a plethora of differently-disabled copies to find the one that best suited their needs. As we've seen, it hasn't worked out.
Further, a EULA is an important tool for the disclosure and negotiation of third-party rights contained in most commercial software. E.g. Company Y licenses algorithm A to Company X for use in non-military applications including all transferrees and assigns; Company X puts the requirement in a EULA, such that end users are enjoined from that use per those terms. This sublicensing or third-party licensing must come from contract as well.
Disclosure can be handled in a mere notice, and again doesn't require actual licensure.
With some notable exceptions required by law, the freedom to contract reigns supreme. Sellers are free to set arbitrary restrictions; consumers can seek an al
If the EULA wasn't there, the software wouldn't be available
What makes you think so? There was a time when software was around but EULAs were not, and even today, plenty of software is distributed sans EULA.
I've never seen any point to EULAs. And I've never heard of a good reason for them from anyone else. Developers don't need them, at least not for common practices in the industry, and ordinary users don't need them in order to run or backup the software. Sometimes they're useful -- site licenses, for example -- but not for people getting something in a cardboard box at a bricks and mortar store. This being the case, and given how abused EULAs in particular, and adhesive licenses generally, tend to be, I'm all for mostly abolishing them as to consumer transactions.
If you know of a good reason to have a EULA, I'd honestly like to know. Better still if it's a reason that seems like a fair and reasonable business practice.
Yes, the law permits a citizen to do anything that is not against the law, but in the case of copyrighted works, the citizens targeted are the rightsholders. The customers only get the rights that are transferred to them; they don't have any inherent right to use the protected work of another.
Well, to be a little more precise, even copyright law does not prohibit the public from doing anything not expressly made an exclusive right of the copyright holder (as subject to various exceptions). So, for example, anyone can read a book, whether they are authorized by the copyright holder or not, because copyright doesn't include an exclusive right of reading. Only a few rights are covered by copyright, in fact. The public does have inherent rights to everything else as to the copyrighted work of another, and since the public empowers the government to grant copyrights in the first place, they really have inherent rights to the work anyway, they've just given up some of them temporarily for public purposes. There's no inherent right to force an author to create or to publish, but otherwise, the public makes the rules.
The EULA includes the option to reject it. And ProCD, the leading case for the enforceability of EULAs, supports the proposition that a EULA wouldn't be enforceable if you couldn't reject it and return the software for a refund. If people weren't supposed to be free to take advantage of the option, it wouldn't be there. So no, people shouldn't be stuck with it.