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United States Your Rights Online

Lofgren's Anti-DRM Bill 322

Posted by michael from the trial-balloon dept.
blastedtokyo writes "House representative Zoe Lofgren introduced the Digital Choice and Freedom Act. Perhaps the most interesting section is the part that invalidates 'non-negotiable shrink wrap licenses' (EULAs) that limit rights. On top of this, it states that both digital and analog media need to be subject to fair use rules for backing up. The full text of the bill is also available." News.com.com.com.com and Infoworld have stories as well, which both note that there is no chance of these bills being passed this year.
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Lofgren's Anti-DRM Bill More

Lofgren's Anti-DRM Bill

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  • Say it with me... (Score:4, Insightful)

    by McCart42 ( 207315 ) on Thursday October 03, 2002 @08:09AM (#4379944) Homepage
    All together now...Repeat [slashdot.org]. However this is such great news, I don't mind hearing about it twice. Let's hope that at the very least this bill stirs up more media attention to the DMCA, DRM, and other things that are designed to take away our rights, not protect them.

    • Re:Say it with me... (Score:5, Informative)

      by michael ( 4716 ) on Thursday October 03, 2002 @08:18AM (#4379983) Homepage
      I know we've mentioned it before, but we didn't have the text of the bill. IMHO, it's worth reading - always better to actually read source material instead of relying on second- or third- or fourth-hand reporting.

      • First vs. Complete (Score:2, Insightful)

        by goldspider ( 445116 )
        Now I don't want this to come out the wrong way, and I'm already starting to wander a little offtopic, but wouldn't it be better to post a story once with all of the information than posting it several times with fragmented information?

        IANAJ (I am not a journalist) but it would seem more important to have all the facts than to get that proverbial "first post". It doesn't matter if someone else breaks the story first, as long as you have the better/more complete information. That makes you (and Slashdot) look more professional and less knee-jerk.

        • IANAJE(ither), but it seems to me that just about all online news sources post updated articles as new information comes to light.

          Often, a news site [cnn.com] will simply (and silently) replace the old version with the updated version. To me, this is much worse that the /. practice of posting a separate, second story. With the latter system, one is at least aware that more information has become available.

    • Re:Say it with me... (Score:5, Insightful)

      by fizban ( 58094 ) <fizban@umich.edu> on Thursday October 03, 2002 @08:31AM (#4380034) Homepage
      It's not a repeat if it provides more information. It's called a "follow-up."
      • Though, generally speaking, follow-ups contain the text "Following-up from a previous article here..." or something of that ilk. It's only a follow-up if you realise it is before you post it, otherwise it's just a repost, albeit a better-than-the-original one :-)

    • JOIN the EFF. It helps. (Score:4, Interesting)

      by laetus ( 45131 ) on Thursday October 03, 2002 @09:14AM (#4380280)
      Writing your Congressman/woman/Senator helps on issues, but if you notice, bills that get passed usually have big lobbys behind them (special interests).

      Topics like these are OUR special interest and we have a lobby for it, the Electronic Frontier Foundation [eff.org].

      I'm a paying member myself and I would strongly encourage you to join also. Unfortunately, it's a fact in today's politics, money talks. Let your dollars start squawking.

      • Re:JOIN the EFF. It helps. (Score:5, Interesting)

        by sphealey ( 2855 ) on Thursday October 03, 2002 @09:48AM (#4380458)
        Writing your Congressman/woman/Senator helps on issues, but if you notice, bills that get passed usually have big lobbys behind them (special interests).
        When you write your congressperson on an issue of great importance (and I think this is one such), you need to prepare two letters. The first to the congressperson at his US Government address, laying out your position in clear, calm, concise language, one page or less, typed and signed in blue ink, mailed from a post office in your district.

        The second should be addressed to your congressperon's Chief of Staff, c/o Committee to Re-Elect Congressperson XYZ, at the reelection campaign's address (but not not not at a US Government address). The letter should be more or less the same. But stapled to it should be a check for $20, $30, $50, or whatever you think reasonable. Check made out to the re-election committee natually.

        I think 20 or 30 thousand such letters would start to get the attention of Capitol Hill.

        sPh

  • Don't cross the beams... (Score:5, Funny)

    by Louis-Nap ( 552925 ) on Thursday October 03, 2002 @08:09AM (#4379945) Homepage
    I'm not a US citizen (I'm from the forgotten US state, Australia :0), so I'm not sure how the whole lawmaking process works - but doesn't this law say the exact opposite of quite a few laws either previously passed or currently being debated? What happens in this case - do the laws nullify each other? Do they both apply and it gets left up to the courts to decide which has priority? Perhaps we need some kind of legislation lottery, where the first law that gets drawn out of a barrel is passed, and the rest aren't...I can just imagine a group of senators, fingers crossed, chanting "come in DMCA!"
    • Typically legislation will have a clause that states that it supersedes any laws already on the books.
      • So what prevents a more corrupt administration from creating more legisltation that repeals this bill, and others like it?
        • Ooh! I know the answer to this one. Nothing prevents the corrupt administration from repealing the initial legislation, but Democracy, and the Will Of The People (TM) prevents the corrupt administration from coming to power! Unless the corrupt administration owns an oil company, but that should be left for another post :0)

        • Re:Don't cross the beams... (Score:4, Insightful)

          by N3WBI3 ( 595976 ) on Thursday October 03, 2002 @08:31AM (#4380031) Homepage
          Checks and balances. 1) while the administratorn (President) can submit a Bill they can not Pass a bill into law, that is the job of Congress. 2) while congress can pass any bill they want the administration can veto it, thereby requireing 2/3 of congress to overcome the veto. 3) meanwhile our life term judges (appointed by the administration, and approved by congress, but who will outlast them all.. ok except strom thurman) can declare a law unconstitutional forcing congress to change the constitution to pass it. so you have people of 2 & 6 year terms making laws, a person with a 4 year term (limited to 2 terms) with veto power, and life term judges making sure the law is constitutional. Its a really clean system, if more americans voted ( and did not just vote the party line ) it would actually work.
          • The President can't actually propose laws, although it's easy enough for him to find a congresscritter to forward one from him.

            1/2 of both houses is required to pass the law; 2/3 is required to override a presidential veto.

            And amending the constitution requires approval by 2/3 of the Senate and 2/3 of the State legislatures (IIRC), and is next-to-impossible.
            • umm how does any of this conflict with what I said. I did not state that 1/2 needed to pass, and I did not state the means to change the constitution, but I did not incorrectly say anything..
        • So what prevents a more corrupt administration from creating more legisltation that repeals this bill, and others like it?

          Not much, except perhaps:

          • Private interests (technology companies mostly) who stand to lose money and will lobby against it
          • Public outcry (yes, slashdot, other less mainstream news, etc). If it makes the news, the slant/bias will matter (notice that some places are calling the p2p hacking bill "sagotage"...)
          Of course, if the decision makers are "corrupt" then neither of these will matter. While our system in the US isn't perfect, it tends to only be really unjust when one side lobbies and the other side is silent. For many years, the RIAA and MPAA have lobbied hard and nobody made much noise. Looks like those days are over. Sure, they've got a few key senators in their pockets, but it takes a lot more to pass sweeping laws with broad implications.

        • Re:Don't cross the beams... (Score:4, Funny)

          by MarkusQ ( 450076 ) on Thursday October 03, 2002 @09:16AM (#4380293) Journal

          So what prevents a more corrupt administration from...

          In theory, something called "checks and ballances." It's a key part of our system; it also prevents things like a rogue president declaring war at random, congressmen passing laws which only help their financial backers, or judges ignoring laws to protect their cronies. Since it's so important, we periodically do a live full system test to make sure it's still working.

          In fact, it looks like we're starting one now.

          -- MarkusQ

    • That's what's so great about this system of government, Congress doesn't have to worry about that! It's the judicial branch that's got to make sense of things.
    • Dont worry most Americans dont know how a bill becomes law, were more into teaching our kids to tolerate each other in school than we are into teaching kids how to function in a republic. I know the simple stuff but your question is rather more complicated than it looks, so I could be wonrg, dont flame me.

      If you have two laws on the books which conflict, it is up to the courts to make a legal determination that the law is Constitutional, and I would assume as they are the ones who interprit the law they would also state how this law would affect something like the DCMA.

    • Re:Don't cross the beams... (Score:5, Informative)

      by grylnsmn ( 460178 ) on Thursday October 03, 2002 @08:31AM (#4380038)
      Go and read the actual bill. It is very specific in how it modifies the current Copyright law. For example:
      (a) The first sentence of section 107, Title 17, United StatesCode, is amended by inserting after "or by any other means specified in that section," the following: "and by analog or digital transmissions,";

      What this bill does is add some sorely needed wording to the current law that protects such things as the First Sale doctrine for digital items.

      Another quote from the bill:
      Section 1201 of Title 17, United States Code, is amended as follows:


      (a) by redesignating paragraphs (c), (d), (e), (f), (g), (h), (i), (j) and (k) as paragraphs (d), (e), (f), (g), (h), (i), (j), (k) and (l); and (b) by adding after paragraph (b) the following:

      "(c)(1) Notwithstanding any other provision in this title, a person who lawfully obtains a copy or phonorecord of a work, or who lawfully receives a transmission of a work, may circumvent a technological measure that effectively controls access or protects a right of a copyright holder under this title if-

      "(A) such act is necessary to make a non-infringing use under this title; and

      "(B) the copyright owner fails to make publicly available the necessary means to perform such non-infringing use without additional cost or burden to such person.

      "(2) Notwithstanding the provisions of subsections (a)(2) and (b), any person may manufacture, import, offer to the public, provide, or otherwise make available technological means to circumvent a technological measure that effectively controls access or protects a right of a copyright holder under this title if, if-

      "(A) such means are necessary to enable a non-infringing use under paragraph (1)(A);

      "(B) such means are designed, produced and marketed to enable a non-infringing use under paragraph (1)(A); and

      "(C) the copyright owner fails to make available the necessary means referred to in paragraph (1)(B).".

      As you can see, it redefines parts of the law (specifically the paragraph numbering) and then adds "notwithstanding the providions..." to clarify and interpret other parts.

    • Re:Don't cross the beams... (Score:4, Insightful)

      by Patrick ( 530 ) on Thursday October 03, 2002 @08:37AM (#4380066)
      doesn't this law say the exact opposite of quite a few laws either previously passed or currently being debated?

      Most of the provisions in Rep. Lofgren's bill that conflict with existing laws are edits or clarifications -- they replace or qualify previous statements, but they don't contradict them outright. For example, it would still be illegal to distribute circumvention devices, unless they're required (no other easy way to get fair use exists) and marketed as fair-use devices. That is, cable descramblers sold as "ADV: GET FREE CABLE!!" are still illegal. Signal descramblers sold as "Tivo digital adapter" would now be OK.

      Conflicts with proposed legislation are quite common. What gets passed, if anything, will be a compromise between the Lofgren bill and Sen Holling's "government-mandated DRM in all electronics" bill.

    • I think this kind of conflict happens in other countries, too. The adage in legislative terms is: "it is easier to create than to destroy". That is, it's easier to enact something new, rather than repeal something old. I can think of two reasons for this:

      (1) practical -- it's very difficult to prove, in any kind of all-cases, mathematical, way, what all the consequences of a particular law are; so it's also difficult to prove what the consequences would be of removing it and replacing it with a different law, so patchwork laws happen, new cases being dealt with by incremental legislation, instead of a clean sweep.

      (2) political -- it's very embarrassing for lawmakers to have spent time and money pushing for a new law, only to have to take it back a year or two later, because it is, in fact, a pile of crap. Joe Public might get the impression Parliament (or Congress, or the Dail, or whatever) wasn't efficient.

      Just my two cent.
    • Boy: Whew! You sure gotta climb a lot of steps to get to this Capitol Building here in Washington. But I wonder who that sad little scrap of paper is?

      I'm just a bill.
      Yes, I'm only a bill.
      And I'm sitting here on Capitol Hill.
      Well, it's a long, long journey
      To the capital city.
      It's a long, long wait
      While I'm sitting in committee,
      But I know I'll be a law some day
      At least I hope and pray that I will
      But today I am still just a bill.

      Boy: Gee, Bill, you certainly have a lot of patience and courage.

      BILL: Well, I got this far. When I started I wasn't even a bill, I was just an idea. Some folks back home decided they wanted a law passed, so they called their local Congressman, and he said, "You're right, there oughta be a law." Then he sat down and wrote me out and introduced me to Congress. And I became a bill, and I'll remain a bill until they decide to make me a law.

      I'm just a bill
      Yes I'm only a bill,
      And I got as far as Capitol Hill.
      Well, now I'm stuck in committee
      And I'll sit here and wait
      While a few key Congressmen discuss and debate
      Whether they should let me be a law.
      How I hope and pray that they will,
      But today I am still just a bill.

      Boy: Listen to those Congressmen arguing! Is all that discussion and debate about you.
      BILL: Yeah, I'm one of the lucky ones. Most bills never even get this far. I hope they decide toreport on me favorably, otherwise I may die.

      Boy: Die?

      BILL: Yeah, die in committee. Ooh, but it looks like I'm gonna live! NOW I go to the House of Representatives, and they vote on me.

      Boy: if they vote yes, what happens?

      BILL: Then I go to the Senate and the whole thing starts all over again.

      Boy: Oh no!

      BILL: Oh yes!

      I'm just a bill
      Yes, I'm only a bill
      And if they vote for me on Capitol Hill
      Well, then I'm off to the White House
      Where I'll wait in a line
      With a lot of other bills
      For the president to sign
      And if he signs me, then I'll be a law.
      HOW I hope and pray that he will,
      But today I am still just a bill.

      Boy: You mean even if the whole Congress says you should be a law, the president can still say no?

      BILL: Yes, that's called a veto. If the president vetoes me, I have to go back to Congress and they vote on me again, and by that time you're so old ...

      Boy: By that time it's very unlikely that you'll become a law. It's not easy to become a law, is it?

      BILL: No!

      But how I hope and pray that I will, But today I am still just a bill.

      MAN: He signed you, Bill Now you're a law!

      BILL: Oh yes!!!

  • This is the kind of stuff we need (Score:5, Interesting)

    by Deth_Master ( 598324 ) on Thursday October 03, 2002 @08:12AM (#4379955) Homepage Journal
    This is what the world needs. To adapt to the new media, not to try and force the world to their standards. The RIAA is alarmed that we are not buying their music and so wants to stop the spread of other music. I agree that it can be bad for certain artists, but I believe that the spread of digital media is overall good for all.
    Secondly, I really don't want DRM cancelling my ability to keep copies of my CDs and other digital media. If I had a printing press I'd make copies of some of my favorite books. I've lost one of them, and I'm really wishing I had a copy.
    Bills like this are ones I expect to see almost all Slashdotters supporting!

    Go digital media!
    • The thing is that you really would not make a copy if you had a printing press. To make a one off copy on a printing press would take hours of your time and cost 100's of dollors. Even doing so on a copier would cost more then a lot of books. I work at a copy shop and it costs us between 1.5 and 2 cents a copy, on a production maschine, a smaller business or personal copier will cost you up to 15 cents a copy.

      $.02 * 300 =$6.00 on cheap paper. Then you nead to bind it somehow, and it takes your time. To scan an entire book you must either cut the spine off, or hand place each page, with would take about a half hour.

      So if I owned a good copier it would cost me $11.50 to copy that book (I make $11.00 an hour. The fact that non perfect copies of books cost so much is why these types of laws were delayed.
  • Even though this is a repeat story (that never happens!) It is good to know that not everyone in D.C. is a corrupt pawn of a corporation out to make money and nothing more. So voting isn't meaningless. Find out which people aren't corrupt and get them in office.

    • Re:It's good to know (Score:3, Informative)

      by Stonehand ( 71085 )
      Rep. Lofgren does have an varied list of top contributors [opensecrets.org] -- perhaps most relevant would be the American Intellectual Property Law Association, and the National Cable and Telecommunications Association.

      If you check the list of Top Industries that support Zoe Lofgren with money [opensecrets.org], the #1 item is... "Computer Equipment & Services", followed by "Lawyers/Law Firms". "TV/Movies/Music" pays her some (not much for the 2002 cycle, only $7.7K), but quite a bit less (about 10:1 for combined computer/law vs TV/movies/music).

      That ratio would be rather consistent with this stance, although it's not indicative of a quid-pro-quo as people are going to give money mostly to reps who vote favorably if there's a danger of getting somebody who would vote the other way.

  • Let your congressmen(women) know you want this! (Score:5, Informative)

    by BobRooney ( 602821 ) on Thursday October 03, 2002 @08:34AM (#4380051) Homepage
    Its amazing and exciting that a member of congress has her finger so precisely on the pulse of the geek community with respect to the whole digital media fiasco.

    What now? EVERYONE WRITE/CALL/PETITION your congressmen and your senators. Let them know that geeks vote too and we have the ability to get/cost them a large number of votes thanks to our prowess with all the latest communications technologies.

    • Find out what congressional district you live inLook up [house.gov]
    • Call your congressperson's office. Get them on the phone and tell them you want them to vote for this bill
    • If you get your congressman on the phone, schedule an appointment. If you cant' schedule an appointment, write 2 letters, yes 2.


    • The legislative process only works if you involve yourself. Oh, and don't forget to vote!.
    • Go here [house.gov] to find your House Rep. for your city/state.

      Here's what I wrote to Jim Davis:

      Sir:

      I have just heard of new legislation that U.S. Congresswoman Zoe Lofgren (16th Congressional District, California) is proposing. As both a software developer and someone who appreciates art in any form, be it written, musical, video or otherwise, I would strongly encourage you to read this new proposal, if you have not already, in hopes that you may lend your support. Relevant website links are below.

      Thank you for your time.

      http://www.house.gov/lofgren/press/107press/021002 _summary.htm

      http://www.house.gov/zoelofgren

  • Just wondering, with all of this bashing of copyrights and EULAS, isnt the GPL itself a copyright? and that little header that is on GPled files a EULA? After all, it does say how we can use the software and how we cant.

    • Re:copyright, EULA and GPL (Score:5, Informative)

      by Chris Burke ( 6130 ) on Thursday October 03, 2002 @09:09AM (#4380262) Homepage
      No. The GPL is not in any way an EULA. If you want to use the software, the GPL does nothing. Accepting the GPL or not has no effect whatsoever on your use of the software. If you don't accept the MS EULA, you can't use the software. With the GPL, it doesn't matter. This of course doesn't include making derivative works from or distributing. These are not usually considered End User uses, because they are prohibited by copyright, not by a EULA. If no EULA existed, you still wouldn't be able to modify or distribute a program.

      The GPL grants rights to modify and distribute, and yes there are terms for that, but that doesn't make it an EULA. It's as much an EULA as the contracts Microsoft presents when they grant someone access to -their- source code, and believe me they don't stick that in a little window with an "OK" button. :)

      That's the deal -- the GPL is a -license- but not an End User License Agreement.

      • If you don't accept the MS EULA, you can't use the software.

        Bullshit. No court has ever agreed with that.

        • You're absolutely right. I perhaps should have said "The MS EULA states that if you don't accept it, you can't use the software." The validity of EULAs has always been in question. I wasn't commenting so much on their legality as what the actual -contents- of the licenses are, and how that makes them fundamentally different.

    • Re:copyright, EULA and GPL (Score:5, Informative)

      by shepd ( 155729 ) <slashdot.org@gmail.3.14com minus pi> on Thursday October 03, 2002 @09:48AM (#4380457) Homepage Journal
      Section 5 of the GPL says...

      "You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it."

      Because RMS knew this could/would happen.

  • EULA Strength? (Score:3, Interesting)

    by viper21 ( 16860 ) <scottNO@SPAMiqfoundry.com> on Thursday October 03, 2002 @08:43AM (#4380094) Homepage
    What kind of legal strength does a EULA have any more?

    1. They are on every software product.
    2. Nobody reads them.
    3. Those who say they read them are lying.

    Therefore, one could assume that nobody understands their rights and none of the software companies seem to enforce their stated restrictions. At least that I have seen.

    So what good is a EULA these days? Should we be reading them? Are they even valid, considering they 'go into effect' upon opening of an envelope.

    Can such an agreement be made without a signature?

    Can I just have my minor child open software to relieve me of these obligations to the software company?

    These are things I would like to know. I admit that I am ignorant :-)

    -S

    • Re:EULA Strength? (Score:5, Interesting)

      by Ryosen ( 234440 ) on Thursday October 03, 2002 @08:58AM (#4380195)
      Actually, I read them. As a developer, I have to be concerned with what provisions companies put into their EULAs regarding distribution and use of their tools. I'm much too lazy to go digging for the references, but there are many examples of frivolous restrictions being placed in the EULA. For example, Microsoft's specification that its tools may not be used in open source development.

      In addition to this, as a consumer, I look through the EULA for clues that there might be trojan processes in the software. Microsoft's Media Player is a good example of this whereby they reveal in their EULA that they can remotely access your machine and install arbitrary "updates." This has been covered here before so there is really no need to retread it again.

      As for the legality of the EULA, no, it is not enforceable. The EULA is supposed to be a precursor to the purchase and subsequent use of the software. However, as you cannot view the EULA before purchasing, and as the software is invariably non-returnable, the agreement is non-binding.

      By law, you have a set term to review a contract before signing it. In most states, this is three business days. A contract cannot be introduced and imposed ex post facto (after the fact). Typically, a contract is not legally binding unless it is signed by both parties and in the presence of at least one witness. Further, a contract is not binding to a minor unless that minor's parent or guardian also signs. So the whole notion of EULAs in video games is nonsense.

      Ultimately, the enforceability of a EULA relies on the ignorance of the parties involved. The consumer who believes that it is binding and the vendor who finds comfort in the mistaken belief that an enforceable contract has been executed.

      I personally do not know of a single court case where a EULA has been tested, which suggsests to me that the software manufacturers and their legal teams realize that a EULA is nothing more than a facade.

      With respect to the inclusion of EULA legistlation in Lofgren's bill, I would suspect that that was put there as a bargaining chip. In negotiations, you always ask for more than you expect to receieve and you always ask for things that you don't care too much about. This way, you have something that you can concede to the other parties without actually losing something that you want.
      • In addition to this, as a consumer, I look through the EULA for clues that there might be trojan processes in the software. Microsoft's Media Player is a good example of this whereby they reveal in their EULA that they can remotely access your machine and install arbitrary "updates." This has been covered here before so there is really no need to retread it again.

        This is the real issue with the new EULA language, particularly MS. Normally, they are just saying what you can and can't do and what they won't be responsible for, but here they are saying they can put something on your computer that could be used to invade your privacy. In the normal case, the part that is enforcable probably is enforcable without the agreement, and the agreement serves to notify you or your responsibilities. That helps them if they need to sue you.

        The other part seeks to give them a right to your information that would otherwise be very questionable. What does it mean for this to be invalid or unenforcable? If you haven't taken positive steps to reject these terms they might be protected (somewhat) from legal action against them for invasion of privacy. They might even construe this to protect them when a third party hijacks the mechanism to invade your privacy. It may be quite a stretch to you and me, but arguing this still muddies the waters and therefore weakens your privacy rights.

      • For clarification, most contracts do _not_ need to be signed to be legally binding. Examples of those that must be signed are contracts for the sale of goods $500 or more and prenuptial agreements. Also, minors can bind contracts and enforce them against adults. However, the contract is voidable at the option of the minor.

        Most EULAs do stipulate that the software can be returned if you reject the EULA. While this may not be entirely feasible, that does not give you the right to agree and subsequently break your agreement. For the legality of EULAs to be fully known, they will have to be tested in the courts or a supervening law (or administrative regulation) must be passed. I suspect that exactly _what you are purchasing when you buy software_ will have to be determined first. If you are purchasing the right to use the software, the imposition of an EULA ex post facto may lack consideration and thus be found unenforceable.

        I am not a lawyer but have studied law. However, do not rely on the above information as legal advice.

        sm
      • I wish your opinions were true, but they are not the opinion of the court.

        BlackSnow Interactive took Mythic Entertainment to court in order to challenge the EULA and lost.

        For details, go to Google and search on "BlackSnow Mythic EULA"

    • Re:EULA Strength? (Score:2, Insightful)

      by CashCarSTAR ( 548853 )
      The truth to this is...

      Nobody knows:)

      IANAL, but here's my take on things.

      Agreements can be made without a signature, if they are commonly implied. Handshake deals, while legally shaky, are accepted from time to time. An EULA is similar. So an EULA may be legally binding.

      However, from how I see things, the contract being made when you purchase software is a standard sales agreement. Both parties have certain rights and responsiblities. Copyright and Fair Use are examples of these. In this case, what the software companies are doing is REWRITING that contract unilaterally. I can't write up a contract with a person, then a week later just rewrite the terms, it doesn't work that way. Once it leaves the store, any additional terms are null and void. Instead of using EULAs, companies should have representitives at every store with a stack of contracts for consumers to sign when they purchase software. If the expense is too high, maybe they should just not put in an EULA, and maybe just put a small disclaimer on the box. ("This software is not to be distributed, we are not responsible for any damage to your system this may cause". is really all a software company needs for an agreement)
  • Neither this bill nor Boucher's will pass, because there is no huge lobby (or $$) for this cause like Hollywood has. Still, it's good to go forward anyways, since raising public awareness is the only shot we have to change the industry's mind.

    Actually, introducing this now (when it might possibly be made into an election issue) is a great idea, as the public is paying a bit more attention to politics than usual and is less likely to be completely ignored by mainstream press (a la DMCA).

    BTW, *two* bills that seek to accomplish roughly the same thing? Why?

  • This bill will never pass (Score:5, Interesting)

    by Patrick ( 530 ) on Thursday October 03, 2002 @08:44AM (#4380112)
    Rep Lofgren's bill probably isn't even intended to pass. It's intended to get a voice out there to debate Sen Hollings. It defines a spectrum. It tells the rest of Congress that Sen Hollings is a raving, preserve-the-Mouse-at-all-costs lunatic. Rep Lofgren is giving consumer rights groups, the consumer electronics industry, Apple, and civil liberties groups a bill to support.

    What gets passed, if anything, will be somewhere in between Lofgren's bill and Hollings's bill.

    • No, it's probably just intended to get her Silicon Valley constituancy to stop flaming her about supporting the DMCA.

      She doesn't really expect to push it, or for it to pass. The real question will be if she does anything with this in the next session.
      • Quoth the poster:
        She doesn't really expect to push it, or for it to pass.

        I don't know about that. Here's the response I got to an e-mail I sent Rep. Lofgren. Please note, I am NOT one of her constituents and yet I got a response. This is one unusual Congresscritter ...

        [Personal Identifying info deleted]


        Thank you for your kind words of support regarding my new bill, the Digital Choice and Freedom Act (H.R. 5522). I appreciate the time you took to contact me.

        I have been thrilled that consumers from across the country and across the globe have emailed me their positive comments about the Digital Choice and Freedom Act. As you know, this bill seeks to maintain in the digital age the same balance that existing U.S. copyright law establishes between the interest of copyright holders in controlling the use of their works and the interests of the public in the free flow of ideas, information and commerce. The full text of my bill, along with a section-by-section analysis, is available on my website at http://zoelofgren.house.gov/ [house.gov].

        Since you do not reside in the 16th California Congressional District, you may also wish to let your own Representative know your views on this subject.

        Again, thank you for your support.

        Sincerely,

        Zoe Lofgren
        Member of Congress

        Impromptu Open Standards Adherence Test:

        I might also point out that the page linked to above does not render at all in Netscape 4.79 under Solaris even though MOST of the House's webservers are running Netscape Enterprise on Solaris (per Netcraft). It renders perfectly in IE6,in (blush) KFM under RH 6.2, in Mozilla 1.0.0, Konqueror, and even in Lynx, all under Debian sarge ... Guess it's time to think about upgrading my Sun box at work to Solaris 9 so I can have Netscape 6 ...
    • Rep Lofgren's bill probably isn't even intended to pass

      This isn't even a question. There's a reason why nobody tries to put bills out shortly before an election - bills that are not passed prior to the end of session are immediately dropped dead on the floor.

      The real question is if this bill or another like it will be introduced to the Senate and/or House again next year after the start of the new session. At that point you have roughly 2 years to pass it, which just might be enough time for the debate.

      I do think you're dead on with your analysis though. And I also think it's important for people to contact their congresspeople on it.
  • Granted, I no longer live in the states. But - to see such a bill introduced by a Californian Democrat is quite encouraging. Way to go, Zoe. If this passes, the rest of the world will thank you.
  • After I read the article and followed the links to the actuall bill, I was very pleased with what I saw. However my representatives in congress has no way of knowing this unless I tell them.

    If you are a regestered voter, tell your representatives what you want. If you are a citizen but not registered to vote, then move away to some backwater, third-world country where you belong. Or, of course, you could just get off of your lazy, excuse-finding a$$ and register.

    And to be most effective use SNAIL-MAIL. Five letters with a return address from their home district get more attention from congressmen than 500 digital signatures from unknown locations on the internet, even if they SAY they are constituants. Slashdotting a website with 150,000 hits may be cool and all, but 150,000 leters to congress can actually make a difference.

  • Sometimes the text of bills ends up creating the opposite effect of what is stated (can you say "Patriot Act"?). Is anyone doing a detailed analysis of this bill to determine if this is the one that proponents of the rights of individual citizens should be backing?

    sPh

  • On the off chance that there'll be people reading the comments who didn't read the full text of the bill, it contains the following definition: "A 'digital work' is any literary (except a computer program), sound recording or musical work, or dramatic, motion picture or other audiovisual work, in whole or in part in a digital or other non-analog format."

    See that "except a computer program" part?

    Not that it matters -- Lofgren introduced the bill far enough before the election to claim she's a backer of your right to watch movies but too close to the end of the legislative session for anything to come of it.

  • EULA not for Computer Software (Score:5, Informative)

    by dschuetz ( 10924 ) <david@@@dasnet...org> on Thursday October 03, 2002 @08:54AM (#4380165)
    I'm surprised (or maybe I shouldn't be) that nobody's mentioned that the anti-EULA section of the bill explicitly excludes computer software:
    "(b) When a digital work is distributed to the public subject to non-negotiable license terms, such terms shall not be enforceable under the common laws or statutes of any State to the extent that they restrict or limit any of the limitations on exclusive rights under this title.


    "(c) As used in this section, the following terms have the following meanings: A 'digital work' is any literary (except a computer program), sound recording or musical work, or dramatic, motion picture or other audiovisual work, in whole or in part in a digital or other non-analog format.
    It looks like the right to copy/archive/circumvent does not exclude computer software, though -- this seems to be the only explicit exclusion. Of course, one really needs to actually patch the relevant code with the proposed diff :) to see what's *really* being introduced.
  • From the text of the bill: a work in a digital or other non-analog format ...as opposed to non-digital, non-analog formats?

    -JDF [We need a few geek congresscritters]
  • Here's a cynical view. Every year, minority parties and candidates dredge up lost causes on nearly every controversial issue that they hope will improve the odds in upcoming elections. By being on the losing side they say "I'm sticking up for you" to those particular interests without really risking anything.

    When a long-shot bill actually does get a chance due to exceptional circumstances, such as campaign reform after Enron, the process is slowly and noisily debated for the benefit of cameras. Often nothing comes of it, but each politician will swear they wanted to make something happen. If a bill actually passes, it is watered down enough to provide a symbolic victory without actually affecting the way business is done.

    I think we're much more likely to have our rights protected by the courts than by Congress. Once those rights under current laws are reaffirmed, it will be politically difficult for Congress to pass new laws taking them away.

  • EULA's (Score:5, Insightful)

    by RailGunner ( 554645 ) on Thursday October 03, 2002 @09:00AM (#4380209) Journal
    Bear with me on this one, everybody.

    As a software developer, I'd like to see EULA's remain legal. I don't want to be sued because some idiot misused or ran a virus infected version of my executable and bad things happened to that PC. I don't want to be sued when the same idiot installs an older software application that overwrites a bunch of MFC and ATL DLL's and then complains that "it dunnit work no more - yee haw"

    However, I'm completely opposed to the way EULA's are presented to people now... Most EULA's are presented as a step in the InstallShield installer, if you don't accept the terms you can't install the application. Problem is, if you don't accept the terms, you won't be able to take it back to the store. Best Buy, Fry's, Comp USA, etc., don't take returns on opened software, only exchanges.

    What should happen is that companies are required to either print the EULA on the box (there is room, even on the new boxes, just print it on the large flap where there's just screenshots and marketing crap there anyways). Then, users can read the EULA before they've brought it home and started to install it, and if they don't like the terms of the EULA they can leave the box on the shelf and look at a competitor's product.

    Making EULA's completely illegal as some people advocate is too extreme. Businesses and independent developers need some protection from the unwashed masses (like AOL users, har har).

    I read the text of the bill, and I mostly agree with it. However, I'd like a change in this bill that says essentially the above - you want to use a EULA, fine, but the user had better be able to read it before they've purchased the software.

    (And while we're suggesting changes, how about an across the board repeal of the DMCA?)

    • Re:EULA's (Score:2, Informative)

      by CashCarSTAR ( 548853 )
      Putting a disclaimer on the box is all that's really needed. I agree with you that some protection is needed. But all you really need is two lines or so. Do not distribute and we are not responsible for damage. That's it.

      Anything else is just lawyer-happy fluff.

    • READ (Score:3, Informative)

      by Chris Burke ( 6130 )
      The bill doesn't ban licenses on software, it bans the EULA as the word means today -- a license that pops up during installation, after you've bought the product and brought it home.

      In short, it does exactly what you want -- it gets rid of the crap license you don't like, but keeps the ability to have the all-important disclaimer.

    • Re:EULA's (Score:2, Informative)

      by karmawarrior ( 311177 )
      You don't need to sign a EULA to eat peanut butter, which can also cause harm or even death to people with the wrong allergies. Generally, even in this legalistic society of ours, a notice along the lines of "Warning: Contains peanuts" is generally considered more than enough if prominent enough and on the outer labelling.

      I think it's reasonable to rely on disclaimers, and if our law makes EULAs necessary because disclaimers do not have enough force, then perhaps the disclaimers should be given legal wieght in the same bill that pre-empts EULAs.

    • Re:EULA's (Score:4, Interesting)

      by Zathrus ( 232140 ) on Thursday October 03, 2002 @10:43AM (#4380764) Homepage
      I'd like to see EULA's remain legal

      Well, that presumes they're legal already. There's no case law indicating that, and excepting the few states (two?) that have adopted the new UCC, it's questionable at best.

      In fact, at least one proviso of most EULAs is definitely not enforceable (at least in California). Namely the one stating that you cannot resell the software - see this article [theregister.co.uk].

      Problem is, if you don't accept the terms, you won't be able to take it back to the store

      IANAL, but either the manufacturer or the retailer have to accept it back. If they don't, the EULA is essentially unenforceable since a key component was not met. A lot of manufacturers or distributors will accept the software back, albeit under duress.

      Frankly, I don't see why software should be any more protected from lawsuits than anything else. Standard case law should take care of this. If you maliciously distributed software with essential flaws that you knew of then you'd still be on the hook. Otherwise you'd be free and clear (excepting legal costs, which is somewhat the point). I'm a software developer too, but I don't see why we should be any more protected than a manufacturer of material goods. Yes, software is complex. So is a car engine. And there's a difference between bugs and negligence.

      The problem is that EULA's don't just try to indemnify against damages -- they attempt to limit your rights (right of first sale, redistribution, fair use rights, free speech rights (cannot use for benchmarking, etc) -- and no, most of these are not "constitutional rights" but are rights granted through case law) or grant the software/seller/manufacturer additional rights that you may not agree to (c.f. spyware EULAs). This is utter crap and should not be legal. If you want to update your own software, that's one thing. But you shouldn't do it without my ok, without notice, and you certainly shouldn't touch other software without explicitly notifying me of it and making it reverseable.

      Of course, this is easier said than done, but I do think it winds up being simpler in the long run for everyone involved (at least as long as you're trying to be above the board about things and not scum).

    • Re:EULA's (Score:3, Informative)

      by bnenning ( 58349 )
      I don't want to be sued because some idiot misused or ran a virus infected version of my executable and bad things happened to that PC. I don't want to be sued when the same idiot installs an older software application that overwrites a bunch of MFC and ATL DLL's and then complains that "it dunnit work no more - yee haw"


      You want a disclaimer of warranty, which is separate from the use-controlling and rights-removing aspects of a EULA. You don't need a EULA, you just need a notice that says "This software is provided as is, with no express or implied warranty, the publisher is not responsible for any loss or damage, etc, etc".

  • for software, anyway.

    When a digital work is distributed to the public subject to non-negotiable license terms, such terms shall not be enforceable under the common laws or statutes of any State to the extent that they restrict or limit any of the limitations on exclusive rights under this title.

    OK, so what's a digital work?

    As used in this section, the following terms have the following meanings: A 'digital work' is any literary (except a computer program), sound recording or musical work, or dramatic, motion picture or other audiovisual work, in whole or in part in a digital or other non-analog format.

    So Microsoft need not worry about this clause.

    The digital first sale part seems especially cool, but it also opens the way to unlimited distribution on the web. Here's the text:

    Section 109 of title 17, United States Code, is amended by adding at the end the following: "(f) The privileges prescribed by subsections (a) and (c) apply where the owner of a particular copy or phonorecord of a work in a digital or other non-analog format, or any person authorized by such owner, sells or otherwise disposes of the work by means of a transmission to a single recipient, provided that the owner does not retain his or her copy or phonorecord in a retrievable form and that the copy or phonorecord is sold or otherwise disposed of in its original format.".

    So if I want to sell CDs online, instantly, and then ship the buyer the physically copy later (or just destroy it), I can do that. This is really great, as it's what mp3.com tried to do before they got sued for it and lost.

    The problem is you know there's going to be a whole new twist to the napster phenomenon, where people distribute copies to thousands of people and then claim they owned those copies and were destroying them.

    There's another interesting effect on the GPL. Since it's legal to make copies of GPLed software, as long as you don't distribute those copies, you have a loophole where you can make an unlimited number of copies, and then distribute those copies under this clause without distributing the source. Right now you can already do that as long as you print actual CDs, but this clause would let you do it digitally. Basically, RIP GPL, unless they can claim that the non-negotiable license is allowed to take away this right, which, maybe they will since it's software.

    Overall it looks like a great law, but it's probably way overbroad to pass. I'd love to see just about any part of it pass individually though, especially the digital first sale part.

    • I'm glad you're looking at this critically. I was a bit surprised when I read it that it seemed not to be all it was cracked up to be.

      Having said that, I disagree that this clause allows circumvention of the GPL. Let me edit it judiciously for clarity...

      The privileges prescribed by subsections (a) and (c) apply where the owner of a particular copy ... sells or otherwise disposes of the work by means of a transmission to a single recipient, provided that the owner does not retain his or her copy ...
      This rests on just what the privileges of subsections (a) and (c) are, and they only allow for copies to be made for archival purposes or private display/performance. If you make 1000 copies for the purpose of distributing them to others, that is not allowed by subsections (a) or (c).

      Of course, as always, IANAL.

  • Perhaps the most interesting section is the part that invalidates 'non-negotiable shrink wrap licenses' (EULAs) that limit rights.

    Whilst this sounds nice and all, I wonder if it's been thought out fully.

    On the top of it, it sounds good. Get rid of those pesky EULA's that disclaim everything. But there is a snag, what about the software that you don't go out and purchase?

    I'm all for removing the legallity of a EULA after you've bought something but that puts freely downloadable programs (that you find on the web) in a rather sticky situation. If I release an application that doesn't come in a box and doesn't have to be purchased first then how on earth can I protect myself from the compensation culture that is springing up around me?

    If the EULA was made illegal today, just like that, then (unless my take is wrong) free to download applications that rely on the EULA to burnproof someones backside will all end up having to be pulled. There is no way on earth companies (let alone individuals) who provide products this way are going to accept legal liability for software. They want people to agree to certain restrictions otherwise they could be in a horrible situation.

    To be honest, I don't think that EULA's are really inheriantly bad. It's just that companies have been abusing them to an extent that they've become rotten.

    If they're talking about banning EULA's that you have to agree to after PURCHASING a product then I'm all for it. But if they're talking about ALL licence agreements then I'm a little wary.

    I hope I've got the wrong take on this whole EULA situation. If so, please correct me!

    • But the bill doesn't make EULAs illegal. It just makes ones that limit your rights to less than those you have under the law, without letting you negotiate them, illegal. To me this sounds perfectly sensible: the law sets the minimum rights, and nobody can be asked to give up their legal rights without an actual negotiation in which both sides have a say.

      As for EULAs you have to agree to after purchase, those should be made illegal. Under the UCC contract's formed at purchase, and one side shouldn't be able to unilaterally change the terms of the contract after the fact.

  • Referring to this as an "Anti-DRM" bill is not the way have any hope of getting it (or a similar bill) passed. Better to present it as a bill that supports DRM by clarifying consumer rights within a DRM regime.

  • Good to hear but... (Score:3, Insightful)

    by sterno ( 16320 ) on Thursday October 03, 2002 @09:49AM (#4380468) Homepage
    When it comes to legislation it mostly boils down to what the congress critters believe will keep them in their jobs. If they believe that enough of public opinion is going to come down on them for going one way or another with a vote, they'll follow the opinions most of the time. In the absense of a clear public mandate they will go toward that which tends to promote their long term job stability, that being the big piles of cash from lobbyists.

    Given that, in an environment where we've got an economy in the toilet, an active war on terrorism, and a soon to be war against Iraq, people as a whole have much better things to worry about than DRM. If you have to pick your next congressman based on their stand on war in Iraq vs. their stand on DRM, which is the higher priority? So, in the absense of a direct link between a congress critter's stand on DRM and their job security they'll go where the money is.

    Don't get me wrong, I believe that congress critters do acutally make ethical decisions based on their personal belief. That sometimes in spite of money and public opinion they'll make a choice because they believe it to be the right one. But in order for legislation to make any real headway, you need more than just the ethical stand of a conscience possessing minority.

  • Write your congresscritters, folks! (Score:3, Informative)

    by Troy Baer ( 1395 ) on Thursday October 03, 2002 @09:58AM (#4380512) Homepage

    If you want this bill (or something like it) passed, you have to let your House Rep. and Senators know that you consider it important. A short email or, better yet, snail-mail message will work wonders; here's the one I sent off to the Ohio congresscritters:

    To: senator_DeWine@DeWine.senate.gov, senator_voinovich@exchange.senate.gov, pryce.oh15@mail.house.gov

    Subject: Lofgren bill

    Honorable Senators and Congresswoman:

    I am writing you today to express my support for a bill recently introduced into the House by Congresswoman Zoe Lofgren (which unfortunately does not yet have a congressional record number that I can find), entitled "The Digital Choice and Freedom Act of 2002". This bill would modify the copyright laws to reinforce consumers' fair use rights, which were eroded by the Digital Millenium Copyright Act (DMCA) passed in 1998.

    This legislation is desparately needed. Copyright law in recent years has been heavily tilted in favor of copyright holders, and fair use rights and the public domain have suffered as a result. This act would return some semblance of sanity to some of the more draconian aspects of the DMCA, which disallows circumvention of access controls on copyrighted digital works even if that circumvention is needed to make fair use of the work. (This means, for instance, that it is potentially illegal to develop and distribute an open source DVD player for Linux, because any such player must circumvent the access controls built into the DVD format. This leads to the absurd situation where I can legally buy a DVD and a DVD player/drive for a computer running Linux, but I may not legally be able to play the DVD on the computer.)

    Please lend your support to Congresswoman Lofgren's bill. Thank you for your time and attention in the matter.

    Sincerely,
    (name, address, & phone number)

    --Troy

  • Modifying the DMCA! (Score:5, Interesting)

    by Tom7 ( 102298 ) on Thursday October 03, 2002 @09:58AM (#4380514) Homepage Journal
    Actually, the most interesting part of this bill (to me) is that it modifies the worst part of the DMCA (17 USC 1201) concerning circumvention devices. Paraphrasing ...

    Circumvention is not a violation if: ... " such act is necessary to make a non-infringing use under this title; and "
    " the copyright owner fails to make publicly available the necessary means to perform such non-infringing use without additional cost or burden to such person. "

    Providing a circumvention device is not a violation if: ... " such means are necessary to enable a non-infringing use ..."
    " such means are designed, produced and marketed to enable a non-infringing use ..."
    " the copyright owner fails to make available the necessary means referred to "

    This is great! With those in place, the DMCA becomes a mere annoyance rather than a real impediment to software development.

    My own DMCA Battle... [cmu.edu]

  • So what's to prevent them from... (Score:3, Interesting)

    by jbarr ( 2233 ) on Thursday October 03, 2002 @10:00AM (#4380528) Homepage
    just encapsulating the digital content in a "computer program" (viewer, etc.) and claiming that it is excluded? Or is the bill stating that if it is any of the other forms, that it is not a computer program and included?
    "(c) As used in this section, the following terms have the following meanings: A 'digital work' is any literary (except a computer program), sound recording or musical work, or dramatic, motion picture or other audiovisual work, in whole or in part in a digital or other non-analog format. A 'digital media device' is any hardware or software that converts copyrighted works in digital form into a form whereby the images and sounds are visible or audible, or retrieves or accesses copyrighted works in digital form and transfers or makes available for transfer such works to such hardware or software.
  • It's easy to contact your Representative and express your support (or lack of) for any bill.

    1. Find out who your Representative is at www.house.gov/writerep [house.gov]. The form wants your zip+4, and they give you the link to the USPS to find your 4 digit extension.

    2. The next form will tell you who your Representative is, and let you send a text message to your Representative, -or-

    3. Go to clerk.house.gov/members/index.php [house.gov] and find the office of your Representative and give them a call. They have nice people there to take down exactly these types of calls. Tell the person that you want to express your support for "Zoe Lofgren's Digital Choice and Freedom Act of 2002", and they will ask for your name and there you go.

    So don't just sit there, call/write/email your Representative and let them know how you feel.

    I'd really like to see a "forward this email" campaign with information about why this bill/proposal is so good, and including the information on how to contact your Representative. I'd start one but I don't know the best way to phrase the rest of the information.

  • Question (Score:3, Interesting)

    by Raven42rac ( 448205 ) on Thursday October 03, 2002 @11:28AM (#4381170)
    Will you marry me, Mrs. Lofgren, just kidding, but seriously, it is nice to see that some politicians are actually spending the time to pay attention to shit rather than try to just say "everything digital should have copy protection', coughhollingscough, lets hope our "friends" in Washington take this approach toward our freedoms.

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