2. Among academics and programmers, communicating in computer code (in addition to or in lieu of a natural language) is essential "[t]o promote the Progress of Science and useful Arts...", the core purpose of copyright. U.S. CONST., art. I, 8 (Copyright Clause). Minimizing First Amendment protections given to code would deter, not promote, the progress of science.
While I agree with the conclusion, I don't think the argument is the most important one, either legally or morally in the present case. Legally, the DMCA could stand even if it were not authorized under the Copyright Clause -- because Congress could still be empowered to enact the statute under the Commerce Clause.
Morally, the importance of promoting the arts is salutory, but not at the core of the First Amendment. Even if there were no redeeming social value whatsoever to software content, the First Amendment does not permit government to regulate it (with exceptions not relevant here). The point is that it doesn't matter whether the Court believes the content is good, bad or ugly -- what matters is that it is expressive.
At the end of the day, it is for the marketplace of ideas, and not the government, to decide the worth and worthiness of expressive content.
Regrettably, it is now well-settled law that the loading of a computer program into RAM constitutes a "reproduction," of a copy, or copying, under 17 U.S.C. s. 6, which, if unlicensed, constitutes an infringement.
The question whether you will be "found out" and prosecuted or subject to liability is a question different from whether you may legally use, but not distribute, modified or linked-to GPL software that you feel could not be distributed.
I'll stand by my prior remarks. There is a rich history of first amendment law dealing with book-burning and library censorship. Board of Education v. Pico, 457 U.S. 853 (1982) (removal of "anti-American, anti-Christian, anti-Semitic, and just plain filthy" books unconstitutional).
This is not to say that the points you made are meritless, only that they do not prove the point you suggest they prove.
This is, by far, the most salient piece of advice Michael offers. Do what you love. If you don't love what you do, or stop loving it, do something else -- fast.
I count myself lucky to have known so many of the seminal game designers "way back when." Michael, whom I met years ago when he was working with Dan Illowski's game company, is one of those folks who always seemed to be right-focused, and he inspired me to stay happy.
I count myself fortunate to be able to say that I've always loved the things I have done for a living. But that was only because of a willingness to change what I do. When game-design turned into a drag, I found the law. When that stalled, I went back to engineering for a brief time. Now I'm doing both, and loving it.
MIchael's observations will seem kitch and cliche to some -- but if you think its pointless, you are most certainly missing a very important point.
Just do something you love... or if you don' love what you do, do something else until you find it.
Forgive me for feeding a troll, but these two inanities are so trivially put down, I figured it was worth the bandwidth.
The simple fact is that public institutions have a right, nay, a duty to censor material. Do you want your 5 year old child to be able to see goatse.cx at school? I wouldn't. A public institution should confirm to public tastes and decencies. Anything else would be scandalous.
Bunk. In fact, it is settled law that it is unconstitutional for a public library to censor material. The only subtle issue in the cases is what types of conduct constitutes censorship.
Its not as though they are censoring useful information anyway. Everything they censor is useless porn. The only people who want to see that stuff are libertarians and perverts, who are both the same in many respects anyway.
Bunk. Thanks to the affirmative efforts of folks like Seth Finkelstein, it is also well-established that much substantive information is routinely censored by commercial filtering programs.
everyone says "drudge is full of shit". well guess what fuckface, nobody has been able to prove that yet.
Everyone? Full of Shit? Perhaps the overgeneralization and escatology is a substitute for an inability to make reasoned argument?
The criticisms I have seen of Drudge and his website is that he does not comport with certain traditional journalistic practices. (Verifying stories from primary sources whenever possible; obtaining confirmation from second and sometimes third sources prior to reporting statements from unnamed sources; careful attribution of the nature of unnamed sources). Drudge doesn't deny this -- indeed he embraces the difference between himself and the fourth estate, claiming that his form of reporting is better and fresher precisely because he does not carefully vet the information he reports. Such a style is more likely to scoop others, but is also more likely to result in reporting of false or misleading information.
The critics who accurately accuse him of being a non-journalist miss the point, just as supporters who wrongly glorify his gossip as "great" journalism.
Notwithstanding all of that, his site is, however, a pretty decent collection of links to political commentary.
THe problem isn't allowing the patent office to grant these kinds of patents, the problem is the people passing these are the same people passing drug and industrial ones.
Bunk! The USPTO examination staff is divided into hundreds of art groups and subgroups. To get to work in one of an art group, an examiner must have specialized training for those classifications of art areas examined by that group.
An index to the extensive USPTO classification system can be found here
While it was not always so (there was a time when USPTO did not have software examiners on staff), the PTO does, and has for some time, had software examiners who pass primarily and virtually exclusively on patent in that art area.
This is not like saying, "Anything is possible" - or a generalization. It is the absolute truth, and anybody who understands the inner workings of computers knows this.
Assuming that this, or something like this, is true, it doesn't reallly matter. The goal of the pro-IP community is not to eliminate piracy, but to reduce it -- not from a technical, but rather a practical point of view.
Since the DMCA criminalizes and provides causes of action for circumvention technologies (which anti-copy protection is a species), this could substantially deter the extent to which "user joe" is willing to go to circumvent. Once the hacked machine becomes contraband, leading to risks of forfeiture or worse, folks tend not to own them.
While history showed that a vital industry in copy-protection circumvention has always existed where copy-protection existed, the DMCA wasn't around then. This is different.
Only the marketplace can respond here -- as they did once before. When hard disks became standard equipment, consumers no longer accepted copy-protected software as a matter of course, and a competitive software business responded to consumer demand.
The best response is to provide competitive software that is open and unprotected. This pressures competitors to follow suit -- provided the rank-and-file actually give a damn. Traditionally, "user joe" doesn't much care about legal or technical things, but he REALLY GETS PISSED WHEN HIS SOFTWARE STOPS WORKING. If this happens again, the copy pro won't matter because businesses won't use it by sheer force of capitalism.
[D]oes this bode poorly for future challenges to laws censoring the Internet?
I would have to say, "No." It neither bodes favorably nor badly. The Supreme Court didn't pass on any legal question at all -- they simply refused certiorari (to review the case). They neither upheld nor overturned they law -- they just refused to take it up. This is a very different thing altogether.
Now, reading the statute, it provides only that, "[e]xcept to the extent required in conjunction with a bona fide, agency-approved research project or other agency approved undertaking, no agency employee shall utilize agency-owned or agency-leased computer equipment to access, download, print or store any information infrastructure files or services having sexually explicit content."
In other words, it is just an acceptable use provision for government agency employees.
No doubt, this is a stupid law, and it is bad public policy. But is it unconstitutional? Without the benefit of reviewing the briefs and record below, I am loathe to jump to such conclusions.
Because they wanted a different wheel. Believe it or not, GPL and BSD are not sufficient for all purposes, either commercially or legally.
GPL has not changed in several important regards for various reasons. For this reason, corporate America has not embraced it. RMS says he doesn't care. That's fine for RMS and those who share his agendas, but its no reason for corporate America to adopt it.
There are upsides and downsides to the APSL, just as there are problems and virtues to GPL and BSD. But each is different and serves different purposes. There is no re-invention of the wheel: the wheel proposed by FSF didn't suit Apple. Thus, they had to invent a different kind of wheel.
It has been a few decades since we have had to think seriously about making things small. It is a fine, albeit a lost, art.
News flash: you make code small with embedded interpreters. Threaded code, microcode, internal data bases and so forth are the meat and marrow of coding tiny.
An extensible VM or bytecode interpreter as a vehicle for making code small isn't news either -- that was the fundamental operation of threated interpretive languages such as Forth.
These are great, difficult and fun things to do. But, alas, nobody has really much use for this sort of thing anymore. Every now and then, we need this kind of thing again. But coding for 8-bit machines? Why?
However, I clearly think that if Gore continues to go ahead with his lawyers in front of Democrat judges (who already have rewritten the law, in effect changing the rules of the game after the ball has been put in play), he's going to destroy his party.
Time will tell. Certainly his colleagues don't think so. Tomorrow, you will see a display of awesome party unanimity behind the contest. (Indeed, I think a Bush administration would assure a Democratic majority in both houses in but two years, but that's another story)
Americans hate lawyers, as do I. In my view, the person who, after multiple counts and recounts is resorting to using lawyers for the sole purpose of getting a judge to appoint him President.
Both sides hired and deployed lawyers. Only one side made a federal case of it.
I believe that at this point he doesn't stand much of a chance of succeding...
As between you and David Boies' legal advice, I know who's advice I would rely upon.
Surprisingly, weeks of recounts being done in Democrat counties that voted OVERWEALMINGLY for him, using hand recount rules made and remade on the fly by DEMOCRATS didn't change the results.
Actually, only ONE county was included in the final count, and Bush still showed a mere 500 or so votes. The reason Bush whined all the way to the top was precisely that he KNEW that a full recount would cost him the presidency.
Gore going any further proves that Gore thinks more of himself than the country to continue to be the cause of damaging faith in the Constitution, law, and fairness
Nice pabulum, but it might also mean that he thought he won the election, and that he owed a duty to his supporters to exercise the appropriate processes under our Constittution and the rule of law, to find out who, in fact was the winner.
BTW, Gore's lawyer, Boyd, is the lead government lawyer in the Microsoft case, don't know if anyone's mentioned that yet. This shakes my faith in the Reno case against them, IMO, he has damaged his credibility severely by arguing specious cases on Gore's behalf.
So specious that he won a unanimous ruling of the Florida Supreme Court, blew Bush out of Federal Court in the Eleventh Circuit --TWICE--, and spanked George's attempt to bring a substantive claim on the unfairness (equal protection) to the Supreme Court. (They denied cert on that point.)
It is a clear case of interstate commerce that should be regulated by Federal law
Traditionally, virtually all contract law has been governed by state law.
Applying the laws of a state in which none of the transaction participants resides is ridiculous, and likely unconstitutional.
Actually this is routine, has been done for years, and it has been well-settled that there are no commerce law impediments. You may contract for anything you want. Although less common, it is permissible to use INCOTERMS, or the laws of foreign nations if you are so inclined. (Native state law may govern certain implied terms, such as implied covenant of good faith and rules against unconsionability, under Choice of law rules, however).
Reveal contract terms AFTER the sale?
Same as common law and UCC. See Pro-CD v. Zeidenberg
Forbid publication of critical reviews?
Avoid fixing software bugs?
Forbid resale of used software?
Please cite the provisions of the UCC which you believe make this possible, or why you think it was impossible to impose such terms under UCITA. The same impositions (Preemption clause of the copyright Act and perhaps unconsionability provisions) exist under the status quo as per UCITA.
. . . and some other remedies, but the BSA overstates its clout and risk. The Copyright Act provides only an award of actual damages to the plaintiff, actual unjust enrichment to the defendant (probably close to the retail price of the software used), or at the election of the plaintiff, statutory damages, which is a jury-determined award of no less than $500 and no more than $20K per work infringed (arguably, depending upon facts, not the same as per copy used). A prevailing party can also get (and typically does) an award of attorney fees. In cases of willful infringement, a prevailing plaintiff can get an additional statutory award of up to $100k.
That being said, nothing permits BSA to fine anybody, or to get anything from anyone until a judge or jury makes an award. As to searching and seizure, the Copyright Act DOES provide for ex parte searches in some cases of known infringement, when the searches are warranted.
However, in some recent 6th Circuit cases, a court held that an illegal search or seizure can constitute a civil rights violation and various torts, and that the lawyers representing a plaintiff can share in liability jointly and severally with their clients. So, they better get it right.
If a plaintiff does sue, however, they will ultimately be able to get complete discovery, which will likely include a tour of premesis and right to view computers on-site.
In short, BSA has a lot of clout, unless a defendant is prepared to defend himself. And this clout (threat of suit, threat of statutory damages, threat of attorney fees, threat of ex parte search and seizure and threat of being nasty) is what they use to justify their fine.
There are, however, counter-tactics that may be taken. Filing an action of your own, and making an appropriate offer of judgment can be used to create the possibility of an award of fees for a defendant, when the plaintiff wins but doesn't get their "fine" from the jury. If an ex parte search is unlawful, the defendants can seek remedies as well.
Whether any of these counter-tactics are available, or if available, advisable depends upon specific facts. You should always consult with counsel who has considered your specific case before making any decisions.
They argue that code written by a school employee (and this usually includes grad students) is a work for hire and that the school should retain ownership and control.
The question of ownership can be a no-brainer in typical employee fact patterns. In others, it can be tremendously difficult to determine, and highly fact-specific. The law is derived from the definition of work made for hire in 17 U.S.C. s. 101 and applicable related statutes.
The general rule is easy: If you write a program AS an employee, and writing the program is within the scope of your employment, then the work is a work made for hire, period. In such a case, the copyright immediately vests in the employer, and you have no rights whatsoever (under US law, anyway), unless you have independently contracted for them.
The big questions, of course, are whether you are an employee, in fact, as that term is understood in the Copyright context, and whether your programming was within the scope of your employment, in fact, as that term is understood in the Copyright context. This is where the rubber meets the road.
If not an employee, or the work was out-of-scope of employment, then the work is not a work made for hire unless: (1) the work falls within one of the enumerated classes of works set forth in the statute definition; and (2) the work was commissioned pursuant to a SIGNED writing saying it was a work-made for hire. If both of these two rules are satisfied, same result as above -- employer owned it from the outset, and you never had any rights.
Otherwise, you are the author and owner, and you own the copyright. HOWEVER, even if the copyright initially vests in you, you can, or might already have, assigned those rights away. This depends how your agreements with the University are drafted, and may depend upon specific policies.
Accordingly, the other side of this is that if you want to hire someone and get good rights to their code, you should have a writing reciting: (1) you own it; (2) its a work made for hire, and therefore vests with you; (3) anything that does not automatically vest with you, for whatever reason, will be assigned to you; and (4) employee will sign anything necessary to perfect your rights to ownership. There are stronger and weaker versions of this that may be appropriate, depending upon the circumstances.
Again, this isn't legal advice, which requires the application of general rules to specific facts, any one of which can absolutely reverse the result dictated by law. If you have any doubts, you should bring the question to a lawyer you have retained to analyze those facts for you.
Microsoft's claim here is that the municipaility is using the software without having purchased a license for it. If that is the gravamen of their claim, how could Microsoft sue under UCITA or the license for unlicensed use? If you aren't licensed for the copies in dispute, how would UCITA or the license control?
That, by the way, is what the Copyright Act is for! Providing a remedy for a person making copies of or using software without permission.
No one seems to get it: UCITA doesn't matter. It's not a big deal. In this case, UCITA is irrelevant.
The demand letter described above is and has been for years common and routine. An audit demand has been SOP for any claim of software misuse by a BSA member, typically followed by a demand for some multiple of the license fee as a "penalty."
Microsoft's conduct was its routine before UCITA, it will be its routine after UCITA. There is no way a plaintiff would sue only under the license or UCITA defaults -- which do not provide for either an audit, statutory damages or an award of attorney fees.
And MS would never consider putting an attorney fee provision into a EULA, exposing Microsoft to fees along with every customer complaint. Why should it? The Copyright Act provides all the hammer, and only the licensor would be able to use that.
By the way, have you ever considered how easy it is to sue a municipality in its own municipal court?
Shrink-wrap/Click-wrap licenses have been enforceable (and generally considered enforceable) for over a decade, and after the ProCD v. Zeidenberg case it has been virtually a fait accomplis.
Of course, there is no such clause presently in the Microsoft EULA, notwithstanding any of this. Have you considered why?
Microsoft almost certainly has no right at law to demand an audit, either pre-UCITA or post-UCITA.
Ask your lawyer directly. This is too complex a question to look for advices on a listserv. I have posted my general takes on these questions, and they lie somewhere between the extreme positions you propose. On the other hand, I don't know your facts.
Changing the software (partiularly since their demand letter almost certainly asked you to make no changes to any evidence of infringement) might be an extraordinarily bad idea.
So, run -- do not walk -- to a solid, experienced computer lawyer; preferably one who has dealt with these --long-routine-- demand letters. A little attention to detail and sound advice in advance may well save thousands, perhaps tens or hundreds of thousands, down the road.
Exactly where would you find the right to perform the audit? Certainly not in the license agreement (which might create a massive migration to competitors!). Certainly not in the Copyright Act. Nowhere.
Audit rights is an illusion initially created by the SPA, and perpetuated by the BSA and companies such as Microsoft. It doesn't exist.
As a practical matter, however, the threat of a claim for infringement when you are a blow-over, drop-dead loser is quite a threat. And a demand for audit is a TACTIC by which a prospective plaintiff suggests the possibility of a relatively gentle settlement if you cooperate. It remains to be seen if acceeding to such a request actually gives any benefit in practice.
I am absolutely agreed that a plaintiff should be able to slam-dunk the slam-dunkable. And, of course, during a lawsuit, discovery will provide substantially the same information.
But audit and the impliedly promised "reasonable settlement" is simply forgoing the trial and proceeding directly to the payout. It may make sense in some cases, but in others it may not. Whatever may happen, I'm not sure from where any "right" to an audit would arise.
Ah, the City, unlike we mere mortals, may well be immune from this claim. In a fascinating (to IP lawyers, anyway) case last year, the Supreme Court held that the Congress does not have the power to create a cause of action for patent-holders against the States (and their agencies), notwithstanding the provisions of Article I, Section 8.
States get to claim sovereign immunity. Since the Copyright Act is rooted in the same clause as the PAtent Act, perhaps the city can likewise claim sovereign immunity?
The problem here is that plaintiffs in Copyright cases have a lot of clout to demand something more than a fair settlement, particularly in clear-cut cases -- the plaintiff invariably is entitled to an award of attorney fees.
I wonder if it is ever useful or interesting to comply with these off-the-wall demands for audits. Microsoft/BSA is simply attempting to obtain non-trade-secret free discovery, which they will use before or during any litigation to follow. At the end of the day, even those companies that comply seem to get no better treatment than those that opt to defend. Indeed, they have given up quite a bit. It is much, much easier for a plaintiff to make litigation decisions when he knows the value of the case before even beginning discovery.
On the other hand, let's get this straight. If you are using ersatz software without permission, you are, and in my view should be, liable. It is a good idea to audit your own software use, and to stay compliant. Period. The best defense is no infringement at all. Let me say that again.
The best defense is not to infringe.
If you do infringe, you should expect to pay the price. The question is, at the end of the day, what price should be paid? Microsoft/BSA lawyers love to throw their weight around in clear infringement/unauthorized use cases, demanding more than a reasonable fee for the infringement, claiming that it will cost the defendant so much to get a "reasonable verdict" that they might as well pay the extortion fee. This is because a prevailing plaintiff in a Copyright action is often awarded not only the damages, but also the cost of attorney fees.
There is an answer, however. An Eleventh Circuit case not too long ago, Jordan v. Time, Inc. held that because of a technicality in the Copyright Act, a defendant who makes a timely, formal "offer of judgment" under the Federal Rules of Civil Procedure can turn the attorney-fee tables when the plaintiff does not collect an award greater than the offer.
Making an offer in this fashion shifts the risk to the Plaintiff, since going to trial may result in a net award of attorney fees to the Defendant! One strategy to consider (the circumstances are different in EVERY case -- make these decisions only with advice of counsel) is to do your own due diligence with a lawyer, make an offer in writing, without agreeing to the audit. If it is rejected with a threat to sue, file your own declaratory judgment action with an offer of judgment attached. Now, they get to decide whether to risk paying YOUR legal fees prior to discovery.
Now, do not try this at home. A Copyright case is a tremendously complex cause of action, and zillions of subtle facts can swing results entirely. You should rely on the advice of counsel you have retained before taking any action in any case -- including a decision whether or not to comply with a demand for an audit.
But do make sure your lawyer knows about (and how to effectively use) the Jordan case to good advantage.:-)
Slashdot Mirror
Perhaps the most important quote:
...", the core purpose of copyright. U.S. CONST., art. I, 8 (Copyright Clause). Minimizing First Amendment protections given to code would deter, not promote, the progress of science.
2. Among academics and programmers, communicating in computer code (in addition to or in lieu of a natural language) is essential "[t]o promote the Progress of Science and useful Arts
While I agree with the conclusion, I don't think the argument is the most important one, either legally or morally in the present case. Legally, the DMCA could stand even if it were not authorized under the Copyright Clause -- because Congress could still be empowered to enact the statute under the Commerce Clause.
Morally, the importance of promoting the arts is salutory, but not at the core of the First Amendment. Even if there were no redeeming social value whatsoever to software content, the First Amendment does not permit government to regulate it (with exceptions not relevant here). The point is that it doesn't matter whether the Court believes the content is good, bad or ugly -- what matters is that it is expressive.
At the end of the day, it is for the marketplace of ideas, and not the government, to decide the worth and worthiness of expressive content.
This, to me, is the most important issue.
Regrettably, it is now well-settled law that the loading of a computer program into RAM constitutes a "reproduction," of a copy, or copying, under 17 U.S.C. s. 6, which, if unlicensed, constitutes an infringement.
The question whether you will be "found out" and prosecuted or subject to liability is a question different from whether you may legally use, but not distribute, modified or linked-to GPL software that you feel could not be distributed.
1. Whether libraries may constitutionally use filtering software. . .
As to the first issue, I think they legally can.
Case law suggests otherwise. Mainstream Loudoun, et. al. v. Board of Trustees of the Loudoun County Public Libraries, No. CV 97-2049, (E.D. Va. 2000).
I'll stand by my prior remarks. There is a rich history of first amendment law dealing with book-burning and library censorship. Board of Education v. Pico, 457 U.S. 853 (1982) (removal of "anti-American, anti-Christian, anti-Semitic, and just plain filthy" books unconstitutional).
This is not to say that the points you made are meritless, only that they do not prove the point you suggest they prove.
This is, by far, the most salient piece of advice Michael offers. Do what you love. If you don't love what you do, or stop loving it, do something else -- fast.
... or if you don' love what you do, do something else until you find it.
I count myself lucky to have known so many of the seminal game designers "way back when." Michael, whom I met years ago when he was working with Dan Illowski's game company, is one of those folks who always seemed to be right-focused, and he inspired me to stay happy.
I count myself fortunate to be able to say that I've always loved the things I have done for a living. But that was only because of a willingness to change what I do. When game-design turned into a drag, I found the law. When that stalled, I went back to engineering for a brief time. Now I'm doing both, and loving it.
MIchael's observations will seem kitch and cliche to some -- but if you think its pointless, you are most certainly missing a very important point.
Just do something you love
Forgive me for feeding a troll, but these two inanities are so trivially put down, I figured it was worth the bandwidth.
The simple fact is that public institutions have a right, nay, a duty to censor material. Do you want your 5 year old child to be able to see goatse.cx at school? I wouldn't. A public institution should confirm to public tastes and decencies. Anything else would be scandalous.
Bunk. In fact, it is settled law that it is unconstitutional for a public library to censor material. The only subtle issue in the cases is what types of conduct constitutes censorship.
Its not as though they are censoring useful information anyway. Everything they censor is useless porn. The only people who want to see that stuff are libertarians and perverts, who are both the same in many respects anyway.
Bunk. Thanks to the affirmative efforts of folks like Seth Finkelstein, it is also well-established that much substantive information is routinely censored by commercial filtering programs.
everyone says "drudge is full of shit". well guess what fuckface, nobody has been able to prove that yet.
Everyone? Full of Shit? Perhaps the overgeneralization and escatology is a substitute for an inability to make reasoned argument?
The criticisms I have seen of Drudge and his website is that he does not comport with certain traditional journalistic practices. (Verifying stories from primary sources whenever possible; obtaining confirmation from second and sometimes third sources prior to reporting statements from unnamed sources; careful attribution of the nature of unnamed sources). Drudge doesn't deny this -- indeed he embraces the difference between himself and the fourth estate, claiming that his form of reporting is better and fresher precisely because he does not carefully vet the information he reports. Such a style is more likely to scoop others, but is also more likely to result in reporting of false or misleading information.
The critics who accurately accuse him of being a non-journalist miss the point, just as supporters who wrongly glorify his gossip as "great" journalism.
Notwithstanding all of that, his site is, however, a pretty decent collection of links to political commentary.
THe problem isn't allowing the patent office to grant these kinds of patents, the problem is the people passing these are the same people passing drug and industrial ones.
Bunk! The USPTO examination staff is divided into hundreds of art groups and subgroups. To get to work in one of an art group, an examiner must have specialized training for those classifications of art areas examined by that group.
An index to the extensive USPTO classification system can be found here
While it was not always so (there was a time when USPTO did not have software examiners on staff), the PTO does, and has for some time, had software examiners who pass primarily and virtually exclusively on patent in that art area.
All forms of copy protection can be defeated.
This is not like saying, "Anything is possible" - or a generalization. It is the absolute truth, and anybody who understands the inner workings of computers knows this.
Assuming that this, or something like this, is true, it doesn't reallly matter. The goal of the pro-IP community is not to eliminate piracy, but to reduce it -- not from a technical, but rather a practical point of view.
Since the DMCA criminalizes and provides causes of action for circumvention technologies (which anti-copy protection is a species), this could substantially deter the extent to which "user joe" is willing to go to circumvent. Once the hacked machine becomes contraband, leading to risks of forfeiture or worse, folks tend not to own them.
While history showed that a vital industry in copy-protection circumvention has always existed where copy-protection existed, the DMCA wasn't around then. This is different.
Only the marketplace can respond here -- as they did once before. When hard disks became standard equipment, consumers no longer accepted copy-protected software as a matter of course, and a competitive software business responded to consumer demand.
The best response is to provide competitive software that is open and unprotected. This pressures competitors to follow suit -- provided the rank-and-file actually give a damn. Traditionally, "user joe" doesn't much care about legal or technical things, but he REALLY GETS PISSED WHEN HIS SOFTWARE STOPS WORKING. If this happens again, the copy pro won't matter because businesses won't use it by sheer force of capitalism.
[D]oes this bode poorly for future challenges to laws censoring the Internet?
I would have to say, "No." It neither bodes favorably nor badly. The Supreme Court didn't pass on any legal question at all -- they simply refused certiorari (to review the case). They neither upheld nor overturned they law -- they just refused to take it up. This is a very different thing altogether.
Now, reading the statute, it provides only that, "[e]xcept to the extent required in conjunction with a bona fide, agency-approved research project or other agency approved undertaking, no agency employee shall utilize agency-owned or agency-leased computer equipment to access, download, print or store any information infrastructure files or services having sexually explicit content."
In other words, it is just an acceptable use provision for government agency employees.
No doubt, this is a stupid law, and it is bad public policy. But is it unconstitutional? Without the benefit of reviewing the briefs and record below, I am loathe to jump to such conclusions.
APSL solves all the problems Apple's legal and business staff was concerned about, and Apple wasn't deeply concerned about "GPL-compatibility."
There are several reasons corporate America hasn't embraced GPL and LGPL. There are several reasons FSF hasn't changed GPL and LGPL to suit Apple.
So long as there are differences between FSF's stock licenses and corporate America's goals with free software, there will be different licenses.
Because they wanted a different wheel. Believe it or not, GPL and BSD are not sufficient for all purposes, either commercially or legally.
GPL has not changed in several important regards for various reasons. For this reason, corporate America has not embraced it. RMS says he doesn't care. That's fine for RMS and those who share his agendas, but its no reason for corporate America to adopt it.
There are upsides and downsides to the APSL, just as there are problems and virtues to GPL and BSD. But each is different and serves different purposes. There is no re-invention of the wheel: the wheel proposed by FSF didn't suit Apple. Thus, they had to invent a different kind of wheel.
It has been a few decades since we have had to think seriously about making things small. It is a fine, albeit a lost, art. News flash: you make code small with embedded interpreters. Threaded code, microcode, internal data bases and so forth are the meat and marrow of coding tiny. An extensible VM or bytecode interpreter as a vehicle for making code small isn't news either -- that was the fundamental operation of threated interpretive languages such as Forth. These are great, difficult and fun things to do. But, alas, nobody has really much use for this sort of thing anymore. Every now and then, we need this kind of thing again. But coding for 8-bit machines? Why?
However, I clearly think that if Gore continues to go ahead with his lawyers in front of Democrat judges (who already have rewritten the law, in effect changing the rules of the game after the ball has been put in play), he's going to destroy his party.
Time will tell. Certainly his colleagues don't think so. Tomorrow, you will see a display of awesome party unanimity behind the contest. (Indeed, I think a Bush administration would assure a Democratic majority in both houses in but two years, but that's another story)
Americans hate lawyers, as do I. In my view, the person who, after multiple counts and recounts is resorting to using lawyers for the sole purpose of getting a judge to appoint him President.
Both sides hired and deployed lawyers. Only one side made a federal case of it.
I believe that at this point he doesn't stand much of a chance of succeding...
As between you and David Boies' legal advice, I know who's advice I would rely upon.
Surprisingly, weeks of recounts being done in Democrat counties that voted OVERWEALMINGLY for him, using hand recount rules made and remade on the fly by DEMOCRATS didn't change the results.
Actually, only ONE county was included in the final count, and Bush still showed a mere 500 or so votes. The reason Bush whined all the way to the top was precisely that he KNEW that a full recount would cost him the presidency.
Gore going any further proves that Gore thinks more of himself than the country to continue to be the cause of damaging faith in the Constitution, law, and fairness
Nice pabulum, but it might also mean that he thought he won the election, and that he owed a duty to his supporters to exercise the appropriate processes under our Constittution and the rule of law, to find out who, in fact was the winner.
BTW, Gore's lawyer, Boyd, is the lead government lawyer in the Microsoft case, don't know if anyone's mentioned that yet. This shakes my faith in the Reno case against them, IMO, he has damaged his credibility severely by arguing specious cases on Gore's behalf.
So specious that he won a unanimous ruling of the Florida Supreme Court, blew Bush out of Federal Court in the Eleventh Circuit --TWICE--, and spanked George's attempt to bring a substantive claim on the unfairness (equal protection) to the Supreme Court. (They denied cert on that point.)
Time will tell.
It is a clear case of interstate commerce that should be regulated by Federal law
Traditionally, virtually all contract law has been governed by state law.
Applying the laws of a state in which none of the transaction participants resides is ridiculous, and likely unconstitutional.
Actually this is routine, has been done for years, and it has been well-settled that there are no commerce law impediments. You may contract for anything you want. Although less common, it is permissible to use INCOTERMS, or the laws of foreign nations if you are so inclined. (Native state law may govern certain implied terms, such as implied covenant of good faith and rules against unconsionability, under Choice of law rules, however).
Reveal contract terms AFTER the sale?
Same as common law and UCC. See Pro-CD v. Zeidenberg
Forbid publication of critical reviews?
Avoid fixing software bugs?
Forbid resale of used software?
Please cite the provisions of the UCC which you believe make this possible, or why you think it was impossible to impose such terms under UCITA. The same impositions (Preemption clause of the copyright Act and perhaps unconsionability provisions) exist under the status quo as per UCITA.
See Pro-CD v. Zeidenberg.
. . . and some other remedies, but the BSA overstates its clout and risk. The Copyright Act provides only an award of actual damages to the plaintiff, actual unjust enrichment to the defendant (probably close to the retail price of the software used), or at the election of the plaintiff, statutory damages, which is a jury-determined award of no less than $500 and no more than $20K per work infringed (arguably, depending upon facts, not the same as per copy used). A prevailing party can also get (and typically does) an award of attorney fees. In cases of willful infringement, a prevailing plaintiff can get an additional statutory award of up to $100k.
That being said, nothing permits BSA to fine anybody, or to get anything from anyone until a judge or jury makes an award. As to searching and seizure, the Copyright Act DOES provide for ex parte searches in some cases of known infringement, when the searches are warranted.
However, in some recent 6th Circuit cases, a court held that an illegal search or seizure can constitute a civil rights violation and various torts, and that the lawyers representing a plaintiff can share in liability jointly and severally with their clients. So, they better get it right.
If a plaintiff does sue, however, they will ultimately be able to get complete discovery, which will likely include a tour of premesis and right to view computers on-site.
In short, BSA has a lot of clout, unless a defendant is prepared to defend himself. And this clout (threat of suit, threat of statutory damages, threat of attorney fees, threat of ex parte search and seizure and threat of being nasty) is what they use to justify their fine.
There are, however, counter-tactics that may be taken. Filing an action of your own, and making an appropriate offer of judgment can be used to create the possibility of an award of fees for a defendant, when the plaintiff wins but doesn't get their "fine" from the jury. If an ex parte search is unlawful, the defendants can seek remedies as well.
Whether any of these counter-tactics are available, or if available, advisable depends upon specific facts. You should always consult with counsel who has considered your specific case before making any decisions.
They argue that code written by a school employee (and this usually includes grad students) is a work for hire and that the school should retain ownership and control.
The question of ownership can be a no-brainer in typical employee fact patterns. In others, it can be tremendously difficult to determine, and highly fact-specific. The law is derived from the definition of work made for hire in 17 U.S.C. s. 101 and applicable related statutes.
The general rule is easy: If you write a program AS an employee, and writing the program is within the scope of your employment, then the work is a work made for hire, period. In such a case, the copyright immediately vests in the employer, and you have no rights whatsoever (under US law, anyway), unless you have independently contracted for them.
The big questions, of course, are whether you are an employee, in fact, as that term is understood in the Copyright context, and whether your programming was within the scope of your employment, in fact, as that term is understood in the Copyright context. This is where the rubber meets the road.
If not an employee, or the work was out-of-scope of employment, then the work is not a work made for hire unless: (1) the work falls within one of the enumerated classes of works set forth in the statute definition; and (2) the work was commissioned pursuant to a SIGNED writing saying it was a work-made for hire. If both of these two rules are satisfied, same result as above -- employer owned it from the outset, and you never had any rights.
Otherwise, you are the author and owner, and you own the copyright. HOWEVER, even if the copyright initially vests in you, you can, or might already have, assigned those rights away. This depends how your agreements with the University are drafted, and may depend upon specific policies.
Accordingly, the other side of this is that if you want to hire someone and get good rights to their code, you should have a writing reciting: (1) you own it; (2) its a work made for hire, and therefore vests with you; (3) anything that does not automatically vest with you, for whatever reason, will be assigned to you; and (4) employee will sign anything necessary to perfect your rights to ownership. There are stronger and weaker versions of this that may be appropriate, depending upon the circumstances.
Again, this isn't legal advice, which requires the application of general rules to specific facts, any one of which can absolutely reverse the result dictated by law. If you have any doubts, you should bring the question to a lawyer you have retained to analyze those facts for you.
Oh, and by the way.
Microsoft's claim here is that the municipaility is using the software without having purchased a license for it. If that is the gravamen of their claim, how could Microsoft sue under UCITA or the license for unlicensed use? If you aren't licensed for the copies in dispute, how would UCITA or the license control?
That, by the way, is what the Copyright Act is for! Providing a remedy for a person making copies of or using software without permission.
No one seems to get it: UCITA doesn't matter. It's not a big deal. In this case, UCITA is irrelevant.
The demand letter described above is and has been for years common and routine. An audit demand has been SOP for any claim of software misuse by a BSA member, typically followed by a demand for some multiple of the license fee as a "penalty."
Microsoft's conduct was its routine before UCITA, it will be its routine after UCITA. There is no way a plaintiff would sue only under the license or UCITA defaults -- which do not provide for either an audit, statutory damages or an award of attorney fees.
And MS would never consider putting an attorney fee provision into a EULA, exposing Microsoft to fees along with every customer complaint. Why should it? The Copyright Act provides all the hammer, and only the licensor would be able to use that.
By the way, have you ever considered how easy it is to sue a municipality in its own municipal court?
Shrink-wrap/Click-wrap licenses have been enforceable (and generally considered enforceable) for over a decade, and after the ProCD v. Zeidenberg case it has been virtually a fait accomplis.
Of course, there is no such clause presently in the Microsoft EULA, notwithstanding any of this. Have you considered why?
Microsoft almost certainly has no right at law to demand an audit, either pre-UCITA or post-UCITA.
The original post was just demagogical pabulum.
Ask your lawyer directly. This is too complex a question to look for advices on a listserv. I have posted my general takes on these questions, and they lie somewhere between the extreme positions you propose. On the other hand, I don't know your facts.
Changing the software (partiularly since their demand letter almost certainly asked you to make no changes to any evidence of infringement) might be an extraordinarily bad idea.
So, run -- do not walk -- to a solid, experienced computer lawyer; preferably one who has dealt with these --long-routine-- demand letters. A little attention to detail and sound advice in advance may well save thousands, perhaps tens or hundreds of thousands, down the road.
Exactly where would you find the right to perform the audit? Certainly not in the license agreement (which might create a massive migration to competitors!). Certainly not in the Copyright Act. Nowhere.
Audit rights is an illusion initially created by the SPA, and perpetuated by the BSA and companies such as Microsoft. It doesn't exist.
As a practical matter, however, the threat of a claim for infringement when you are a blow-over, drop-dead loser is quite a threat. And a demand for audit is a TACTIC by which a prospective plaintiff suggests the possibility of a relatively gentle settlement if you cooperate. It remains to be seen if acceeding to such a request actually gives any benefit in practice.
I am absolutely agreed that a plaintiff should be able to slam-dunk the slam-dunkable. And, of course, during a lawsuit, discovery will provide substantially the same information.
But audit and the impliedly promised "reasonable settlement" is simply forgoing the trial and proceeding directly to the payout. It may make sense in some cases, but in others it may not. Whatever may happen, I'm not sure from where any "right" to an audit would arise.
Ah, the City, unlike we mere mortals, may well be immune from this claim. In a fascinating (to IP lawyers, anyway) case last year, the Supreme Court held that the Congress does not have the power to create a cause of action for patent-holders against the States (and their agencies), notwithstanding the provisions of Article I, Section 8.
States get to claim sovereign immunity. Since the Copyright Act is rooted in the same clause as the PAtent Act, perhaps the city can likewise claim sovereign immunity?
The problem here is that plaintiffs in Copyright cases have a lot of clout to demand something more than a fair settlement, particularly in clear-cut cases -- the plaintiff invariably is entitled to an award of attorney fees.
:-)
I wonder if it is ever useful or interesting to comply with these off-the-wall demands for audits. Microsoft/BSA is simply attempting to obtain non-trade-secret free discovery, which they will use before or during any litigation to follow. At the end of the day, even those companies that comply seem to get no better treatment than those that opt to defend. Indeed, they have given up quite a bit. It is much, much easier for a plaintiff to make litigation decisions when he knows the value of the case before even beginning discovery.
On the other hand, let's get this straight. If you are using ersatz software without permission, you are, and in my view should be, liable. It is a good idea to audit your own software use, and to stay compliant. Period. The best defense is no infringement at all. Let me say that again.
The best defense is not to infringe.
If you do infringe, you should expect to pay the price. The question is, at the end of the day, what price should be paid? Microsoft/BSA lawyers love to throw their weight around in clear infringement/unauthorized use cases, demanding more than a reasonable fee for the infringement, claiming that it will cost the defendant so much to get a "reasonable verdict" that they might as well pay the extortion fee. This is because a prevailing plaintiff in a Copyright action is often awarded not only the damages, but also the cost of attorney fees.
There is an answer, however. An Eleventh Circuit case not too long ago, Jordan v. Time, Inc. held that because of a technicality in the Copyright Act, a defendant who makes a timely, formal "offer of judgment" under the Federal Rules of Civil Procedure can turn the attorney-fee tables when the plaintiff does not collect an award greater than the offer.
Making an offer in this fashion shifts the risk to the Plaintiff, since going to trial may result in a net award of attorney fees to the Defendant! One strategy to consider (the circumstances are different in EVERY case -- make these decisions only with advice of counsel) is to do your own due diligence with a lawyer, make an offer in writing, without agreeing to the audit. If it is rejected with a threat to sue, file your own declaratory judgment action with an offer of judgment attached. Now, they get to decide whether to risk paying YOUR legal fees prior to discovery.
Now, do not try this at home. A Copyright case is a tremendously complex cause of action, and zillions of subtle facts can swing results entirely. You should rely on the advice of counsel you have retained before taking any action in any case -- including a decision whether or not to comply with a demand for an audit.
But do make sure your lawyer knows about (and how to effectively use) the Jordan case to good advantage.