I think ProCD was decided wrongly, and IMO it appears that the appeals judge made the decision first and then went searching for justifications for it. He ignored the issue of privity of contract entirely. Then he failed to consider the limitation of scope on UCC article 2.
"ProCD proposed a contract that a buyer would accept by using the soft- ware after having an opportunity to read the license at leisure. This Zeidenberg did."
Even accepting that statement as true, that contract -- the EULA -- was not a contract for sale of goods. Therefore it is not covered by UCC article 2, and UCC 2-204(1) (which the judge applied) was not relevant.
Insurance has its own whole set of laws applied to it. So do consumer warrantees (which don't obligate the buyer in any case). If sale of software is treated as a sale of goods under the Uniform Commercial Code, the EULA is either completely meaningless (in the case of purchase from a third party), or constitutes an attempt to modify terms after the sale (in which case it's too late; the goods have been accepted). If it's NOT a sale of goods under the UCC, then the EULA is meaningless for a number of reasons, including lack of consideration and lack of agreement.
Additionally, if clicking "I agree" constitutes agreement, then the silly remedies often proposed such as allowing one's minor child to install the software, or hacking the text to say "I disagree", or removing or modifying the text of the license, would be sufficient to avoid agreement. This would be a pretty silly state of affairs, and I can't see a court accepting such a thing.
In the case of retail software, there was no contract between you and the software company; you bought from a third party (the store), and that contract was completed when you paid for the software and took delivery on it. The EULA therefore cannot be a part of the contract for the sale of the software.
Thus even if the EULA is a contract, it is not a contract for sale of goods, and is therefore not covered by UCC Article 2 (see 2-206).
Furthermore, 2-207 is limited to additional terms made in "acceptance or confirmation" of the contract. By the time the EULA is displayed, the offer has already been accepted (that is, the buyer agreed to pay for the goods), confirmation has already been made and the goods delivered. It's too late to add terms at that point, even according to 2-207.
17 USC 117(a)(1) fails to distinguish between copies in RAM and copies on disk. Installing most software (on disk) nowadays is an integral part of using it; you can't use it otherwise. Therefore 17 USC 117(a)(1) covers copies made during installation, as well as the copies made in RAM.
Is 17 USC 117(a)(1) the only law at all that could possibly apply? It seems to me that there are entire shelves of state laws, many of which govern contracts and some of which are even dedicated to contracts for the sale of goods or, in some cases, computer software specifically (see UCITA section 112). This is a much more complicated area of the law than any one subsection of a copyright statute will explain.
Only two states have enacted the relevant section of UCITA, and I am in neither of them. As for your appeal to immensity: I've given you the reason I think I have the right to use the CD I purchased. If you have some reason for believing I have no such right, state it. I'm not going to dig up every possible law which could possibly affect my use of the CD and explain why it does not apply.
You paid for a cardboard box with some papers and a CD inside of it. What about that fact entitles you to use the software that is stored on that CD?
As I mentioned elsewhere: 17 USC 117(a)(1)
The fact that I own the CD (which is or contains a copy of the software) means I have the right to do anything I like with it that isn't otherwise restricted by law. The only relevant restriction would be copyright law, and 17 USC 117(a)(1) knocks that one down.
You missed the very first paragraph, 17 USC 117(a)(1)
The only reason you _wouldn't_ have the right to install or use a copy of software that you own is copyright law. That paragraph provides a specific exemption in copyright law for using computer programs.
17 USC 117
(a) Making of Additional Copy or Adaptation by Owner of Copy.-- Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
It's not even that. Microsoft have their way in that regard now. What you own is the media with a binary copy of the application/operating system. What you license by agreement to the EULA is the rights to then install and use that software as a running process (or processes) on compatible hardware.
Sorry, but 17 USC 117 says that owning the binary copy already grants me the right to install and use the software.
You are mistaking "signature" and "agreement." Signatures are not a prerequisite to a valid contract, they are merely very good evidence of agreement. You can get out of some contracts you signed and you can be held to some contracts you didn't. The lack of a signature is not the reason EULAs are of questionable enforceability.
It's one of the reasons. Lack of consideration would seem to be an even better one; the EULA grants me no rights I don't already have. And no, I don't agree to EULAs. The fact that I can't use the software without clicking the "I agree" button (or hacking around it) means that clicking it simply signifies that I want to use the software, not that I actually agree.
People are having software that they have no license to use being automatically installed on their systems. I would think a term like that is not valid (non-obvious terms may not be valid in the US), but if it does hold, they will have millions of people in the US infringing on their IP. If they decide they are desperate and start suing (not likely any time soon) there are a lot of potential targets.
I'm not a lawyer so I don't know the legal term for it (maybe some form of estoppel), but I'm pretty sure that even in the sue-happy US, private entities can't entice someone else to take an action which violates your agreement with them, then turn around and sue them for it.
I agree with your sentiment, but it's not entirely accurate to say you don't get to choose how your power is generated. A lot of jurisdictions will allow you to pay a higher rate for power and the guarantee that the money goes to, for example, wind farms.
The electrons don't know you're paying more. The money may go to wind farms (or not -- money and electricity are both fungible) but the proportion of power (either yours or throughout the grid) generated by them changes not at all because you are paying more.
Well, people bitched, and thus the APs has to be moved in the offices. They didn't like having them directly overhead, so they'd get moved to the side and such.
Now, you want the really silly part? I work for the electrical and computer engineering department. Yes, that's right, people with PhDs in engineering, who have all taken classes on this kind of stuff, are afraid of the radiation boogieman.
Even sillier: standard dipole antennas such as those on most APs have a null directly above and below them. By having them moved they exposed themselves to MORE signal.
Yes, a tube lamp will light up under a high voltage line. But, if you walk across a carpet holding a tube lamp, it will light up (intermittently). Ban carpets!
I cannot, for the life of me, find anything in Claims 1-7 which would be novel in 1999. It's a basic technique for distributed computing. It's like the "inventor" took a few papers on distributed computing and wrote them down as his own invention.
RSA-129 was factored in 199_4_ using basically the same technique.
It appears that the "novel" part is intended to be that the sideband channel for distributing work units operates as part of some other unrelated server, though that's not what the claims say. The description section could actually a reasonable description of a botnet.
You can't "slowly become another Microsoft". Microsoft had the evil baked right in. Apple's occasional attempts to clone Microsoft Evil are about as pathetic as Microsoft's attempts to clone, well, anything of Apple's.
Network engineers, you aren't Engineers. Computer programmers, you aren't Engineers. Business people, nope you aren't Engineers either. Systems admins and other IT weenies, you are not Engineers. Get over it, or go back to school.
You're right, we programmers aren't engineers. We have to write programs far more complex than a fan controller, with far more inputs and outputs. And we have to do it with ever-changing and never well-defined requirements. With extremely constrained deadlines. You're building a small Lego shack in a week, plus testing time. We're building a magnificent house of cards in a day, changing the basic architecture three times during the building process, balancing it on a turntable and then setting it out in a gale with the only testing being us blowing on it during construction. We're not engineers, we're frigging miracle workers. Sure, a few cards may blow off -- but the miracle is that the thing stands at all.
Assuming you're an engineer, you've probably proven one of the article's points -- despite a lack of any art education you managed to produce a quite acceptable piece of extemporaneous performance art. At a famous NY museum, no less. Most artists go their entire career without a NY museum show -- maybe you picked the wrong career:-)
I still don't understand why you're so convinced the average CS major could be making great art. The only argument anyone seems to be making for that claim is that James Cameron has an engineering degree (which isn't even true) and that therefore every Java-mangling halfwit could also make Titanic.
The average CS major probably couldn't be making great art. But neither can the average film student. IMO, the average CS major could get through an undergraduate film curriculum a lot easier than the average film student could get through an undergraduate CS curriculum (and forget about EE).
Disclaimer: I only took one film class in college. And yes, it was an easy A.
This is correct, but it is no good enough if your home is going to be repossessed.
Guess what: If your home is going to be repossessed and you're still employed and didn't have any other high, unpredictable expenses since you bought it, it's most likely because YOU were an idiot. Your lender was also an idiot, but that doesn't lessen your idiocy.
McCain doesn't plan to be or want to be in Iraq for 100 years. But, he plans to be there until the job is done. Why can't we recognize this as the only honest answer to the question? Not "We must leave Iraq immediately no matter what!" but "We will leave Iraq when it makes sense to leave Iraq."
The other honest answer would be "The job is not feasible and it's time get out and cut our losses". I think that's Hilary's current line, though I don't believe she'd actually do it.
But I'm not quite sure how the libertarian approaches solve any of those issues; in fact, they seem to exacerbate them. For example: under a flat, say, 15% on income (assuming you don't want to get rid of the income tax entirely, which.... well, look at which countries in the modern world have no income tax--it's not a pretty list), I wouldn't be left with enough money in my pocket to make up for having to buy my own health insurance, pay for the roads in my neighborhood, etc, all of which would now be necessary because receipts would decrease by orders of magnitude.
Really? Because, you know, if you're working in the US you're already paying an almost 15% tax on your income -- and that's BEFORE Federal Income tax. Half of that is hidden unless you're self-employed, but that's just an accounting trick. The roads in your neighborhood are likely paid for by property taxes and/or gas taxes, not significantly from income taxes (and even less from Federal income taxes). And your health insurance isn't likely paid from taxes either -- Hillarycare didn't pass.
You are precisely part of the problem. I never said change the law later. Try to change it NOW.
Not going to happen. The other side is too strong at present.
Here's the problem with your alternative. Not only could I die of old age waiting for the laws to change for the better (or any given copyright to expire), the universe could assume a constant temperature before it happens. "Disobey now, wait for the law to change later" is irresponsible laziness allowing the status quo to continue. The law isn't going to be changing, except for the worse. At least not without some kind of action. If you're just going to sit around, "pirate" material and wait, you are just looking for a free lunch for as long as you can get it, at the expense of those who created the material you desire.
Contrary to popular opinion, the inverse of a valid argument is not necessarily a valid argument. If I obey now, the copyright absolutists get what they want, I don't get what I want, and therefore I lose 100% and they win 100%. If I disobey now, I get more of what I want, they get less of what they want, and I lose less and they win less. Either way, the law won't be changing for the better. If it did, THAT would also be at the expense of those creating the material -- opposition to any such expense is support of the status quo.
This discussion IS about those who are trying to make a living off of writing and publishing. If you don't like the way they do things, STOP ACQUIRING THEIR MATERIAL. Don't let it show up in torrents. Don't share it with your friends. Tell people not to buy it. If distribution comes to a crawl, no matter how good you think the content is, that system will have to shutdown or change.
I don't have that kind of power. People are going to keep buying the material no matter what I do.
Besides, if everyone who violated current copyright laws was to stop doing so, all that would happen is that the copyright absolutists would have total victory. Prohibition wasn't repealed by voluntary halt to bootlegging, nor can copyright absolutism be stopped by a voluntary halt to copyright violation.
Yes, and the fact is that if people did not "own" their "FORTRAN 66 for VAX" textbooks, they would have stopped paying for them years ago, and then when retrocomputing or research people wanted one, they would be quite difficult to obtain.
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I think ProCD was decided wrongly, and IMO it appears that the appeals judge made the decision first and then went searching for justifications for it. He ignored the issue of privity of contract entirely. Then he failed to consider the limitation of scope on UCC article 2.
"ProCD proposed a contract that a buyer would accept by using the soft- ware after having an opportunity to read the license at leisure. This Zeidenberg did."
Even accepting that statement as true, that contract -- the EULA -- was not a contract for sale of goods. Therefore it is not covered by UCC article 2, and UCC 2-204(1) (which the judge applied) was not relevant.
Insurance has its own whole set of laws applied to it. So do consumer warrantees (which don't obligate the buyer in any case). If sale of software is treated as a sale of goods under the Uniform Commercial Code, the EULA is either completely meaningless (in the case of purchase from a third party), or constitutes an attempt to modify terms after the sale (in which case it's too late; the goods have been accepted). If it's NOT a sale of goods under the UCC, then the EULA is meaningless for a number of reasons, including lack of consideration and lack of agreement.
Additionally, if clicking "I agree" constitutes agreement, then the silly remedies often proposed such as allowing one's minor child to install the software, or hacking the text to say "I disagree", or removing or modifying the text of the license, would be sufficient to avoid agreement. This would be a pretty silly state of affairs, and I can't see a court accepting such a thing.
In the case of retail software, there was no contract between you and the software company; you bought from a third party (the store), and that contract was completed when you paid for the software and took delivery on it. The EULA therefore cannot be a part of the contract for the sale of the software.
Thus even if the EULA is a contract, it is not a contract for sale of goods, and is therefore not covered by UCC Article 2 (see 2-206).
Furthermore, 2-207 is limited to additional terms made in "acceptance or confirmation" of the contract. By the time the EULA is displayed, the offer has already been accepted (that is, the buyer agreed to pay for the goods), confirmation has already been made and the goods delivered. It's too late to add terms at that point, even according to 2-207.
17 USC 117(a)(1) fails to distinguish between copies in RAM and copies on disk. Installing most software (on disk) nowadays is an integral part of using it; you can't use it otherwise. Therefore 17 USC 117(a)(1) covers copies made during installation, as well as the copies made in RAM.
Only two states have enacted the relevant section of UCITA, and I am in neither of them. As for your appeal to immensity: I've given you the reason I think I have the right to use the CD I purchased. If you have some reason for believing I have no such right, state it. I'm not going to dig up every possible law which could possibly affect my use of the CD and explain why it does not apply.
As I mentioned elsewhere: 17 USC 117(a)(1)
The fact that I own the CD (which is or contains a copy of the software) means I have the right to do anything I like with it that isn't otherwise restricted by law. The only relevant restriction would be copyright law, and 17 USC 117(a)(1) knocks that one down.
The only reason you _wouldn't_ have the right to install or use a copy of software that you own is copyright law. That paragraph provides a specific exemption in copyright law for using computer programs.
Sorry, but 17 USC 117 says that owning the binary copy already grants me the right to install and use the software.
It's one of the reasons. Lack of consideration would seem to be an even better one; the EULA grants me no rights I don't already have. And no, I don't agree to EULAs. The fact that I can't use the software without clicking the "I agree" button (or hacking around it) means that clicking it simply signifies that I want to use the software, not that I actually agree.
I'm not a lawyer so I don't know the legal term for it (maybe some form of estoppel), but I'm pretty sure that even in the sue-happy US, private entities can't entice someone else to take an action which violates your agreement with them, then turn around and sue them for it.
The electrons don't know you're paying more. The money may go to wind farms (or not -- money and electricity are both fungible) but the proportion of power (either yours or throughout the grid) generated by them changes not at all because you are paying more.
Yes, a tube lamp will light up under a high voltage line. But, if you walk across a carpet holding a tube lamp, it will light up (intermittently). Ban carpets!
I cannot, for the life of me, find anything in Claims 1-7 which would be novel in 1999. It's a basic technique for distributed computing. It's like the "inventor" took a few papers on distributed computing and wrote them down as his own invention.
RSA-129 was factored in 199_4_ using basically the same technique.
It appears that the "novel" part is intended to be that the sideband channel for distributing work units operates as part of some other unrelated server, though that's not what the claims say. The description section could actually a reasonable description of a botnet.
I think in some Apple ][s, the majority of the chips were Intel. Of course, those were the 4116 memory chips...
You can't "slowly become another Microsoft". Microsoft had the evil baked right in. Apple's occasional attempts to clone Microsoft Evil are about as pathetic as Microsoft's attempts to clone, well, anything of Apple's.
/(?:\w+)regex(?:\w+)/i (The lameness filter ain't going to allow thes, is it?
You're right, we programmers aren't engineers. We have to write programs far more complex than a fan controller, with far more inputs and outputs. And we have to do it with ever-changing and never well-defined requirements. With extremely constrained deadlines. You're building a small Lego shack in a week, plus testing time. We're building a magnificent house of cards in a day, changing the basic architecture three times during the building process, balancing it on a turntable and then setting it out in a gale with the only testing being us blowing on it during construction. We're not engineers, we're frigging miracle workers. Sure, a few cards may blow off -- but the miracle is that the thing stands at all.
MTR, B.S.C.S
(only partly tongue-in-cheek)
Assuming you're an engineer, you've probably proven one of the article's points -- despite a lack of any art education you managed to produce a quite acceptable piece of extemporaneous performance art. At a famous NY museum, no less. Most artists go their entire career without a NY museum show -- maybe you picked the wrong career :-)
The average CS major probably couldn't be making great art. But neither can the average film student. IMO, the average CS major could get through an undergraduate film curriculum a lot easier than the average film student could get through an undergraduate CS curriculum (and forget about EE).
Disclaimer: I only took one film class in college. And yes, it was an easy A.
Guess what: If your home is going to be repossessed and you're still employed and didn't have any other high, unpredictable expenses since you bought it, it's most likely because YOU were an idiot. Your lender was also an idiot, but that doesn't lessen your idiocy.
You've got to be kidding. Nose candy for Hollywood alone would put us in deficit with Colombia.
The other honest answer would be "The job is not feasible and it's time get out and cut our losses". I think that's Hilary's current line, though I don't believe she'd actually do it.
Really? Because, you know, if you're working in the US you're already paying an almost 15% tax on your income -- and that's BEFORE Federal Income tax. Half of that is hidden unless you're self-employed, but that's just an accounting trick. The roads in your neighborhood are likely paid for by property taxes and/or gas taxes, not significantly from income taxes (and even less from Federal income taxes). And your health insurance isn't likely paid from taxes either -- Hillarycare didn't pass.
Not going to happen. The other side is too strong at present.
Contrary to popular opinion, the inverse of a valid argument is not necessarily a valid argument. If I obey now, the copyright absolutists get what they want, I don't get what I want, and therefore I lose 100% and they win 100%. If I disobey now, I get more of what I want, they get less of what they want, and I lose less and they win less. Either way, the law won't be changing for the better. If it did, THAT would also be at the expense of those creating the material -- opposition to any such expense is support of the status quo.
I don't have that kind of power. People are going to keep buying the material no matter what I do.
Besides, if everyone who violated current copyright laws was to stop doing so, all that would happen is that the copyright absolutists would have total victory. Prohibition wasn't repealed by voluntary halt to bootlegging, nor can copyright absolutism be stopped by a voluntary halt to copyright violation.
Yes, and the fact is that if people did not "own" their "FORTRAN 66 for VAX" textbooks, they would have stopped paying for them years ago, and then when retrocomputing or research people wanted one, they would be quite difficult to obtain.