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United States Your Rights Online

UCITA Debates Trudge Onward 110

Posted by timothy from the bad-ideas-are-like-razor-boomerangs dept.
prockcore writes: "CNet is running a story on a debate involving proposed changes to the Uniform Computer Information Transactions Act (UCITA). Changes include altering Opt-in/Opt-out rules, removing limits on public criticism, removing some limits on reverse engineering, among others."
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UCITA Debates Trudge Onward More

UCITA Debates Trudge Onward

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  • About time (Score:3, Interesting)

    by thefalconer ( 569726 ) on Tuesday July 30, 2002 @05:26PM (#3982034)
    Hmm, it's about time that legislators actually started thinking when dealing with legislation like this. If they work hard enough, they might even be able to dilude the efforts of RIAA and MPAA enough that they'll get their law, but it will be a law without teeth. Then when they push for bigger legislation we'll be able to stop them cold because we'll have grounds to say "you already have your law. what more do you want?" I see this dilluding of their efforts by congress as a good thing.

    • Re:About time (Score:2, Interesting)

      by Camulus ( 578128 )
      I would disagree. Any more ground given to the RIAA/MPAA is too much. They have thier law. They have the DMCA. In fact, I am fearful of the Anticounterfeit Amendments on 20002 passing because it prevents circumventing any authentication schemes. The RIAA/MPAA is currently working with the private sector to implement broadcast flags etc. Basicly, every thing they wanted in the SSSCA/CBDTPA just with out having to get the law passed and that act would make it illegal to exercise your fair use rights if it passed. Just imagine what would happen with those amendments on the books when Palladium comes out. To put it simply, there are enough laws on the books that the RIAA/MPAA can bust you on, they don't need any more. Less government regulation is "typically" a good thing.

    • Re:About time - Another Thief, A shareware author. (Score:1, Interesting)

      by Anonymous Coward
      FlashFXP
      Not only does this closed source call-home program get huge amounts of attention making all of us wonder if "Charles DeWeese the information thief" is 1) selling your information to marketeers, 2) pretending he can increase profits by threatening, as reported in some cases, paying customers with BSA actions and lawsuits or 3) trojaning your system for other nefarious activities the nature of which you will never be aware because he provides neither source or debugging symbols, and the binary is stripped. One thing is for sure. Be it here on BetaNews, or on Slashdot, or on download.com.com, there is more than a few people calling into question why FlashFXP does what it does, and what is it doing. I would recommend the use of WinPCAP, WinDUMP, and ethereal, along with the free for personal use application firewall, Kerio Personal Firewall (software with nothing to hide, such as KPF, is often free for personal use, and others, like FreeBSD, OpenBSD, OpenSSL (a technology probably stolen by DeWeese and used illegally in FFXP) and Linux/GNU to name a few. With scary legislation in the US empowering copyright holders to DDOS your P2P networks, "root" your boxes in order to delete copyrighted content, and to make circumventing the mechanism by which an MP3 prevents the playing of an MP3 without a digital signature a felony, you can not trust software which calls home in an undocumented, undesirable way. This is the inroad by which these technology fascists will infect your computer with government sanctioned Trojaning devices. FlashFXP, when purchased legitimately, forces your to divulge HUGE amounts of information about yourself. You cant use cash and anonymously buy "shrink." Not only did I buy FFXP, but I excercised my right to fair use on more than one machine, the closed source binary was never run concurrently on more than one CPU at a time, yet my key got blacklisted. I have always been fond of OpenSource, but this and the EULAs for Windows Media Player, which also does various call home undocumented behavior, make not using OpenSource suicidal if you want a life where the government doesn't control and monitor your every keypress. Best of luck in the brave new world, if we continue to support fascists such as Charles DeWeese in his never-ending pursuit to force you to be tithed for non-Novel software which is built upon the stolen intellectual property of others, and prioritized. This is by no means a call for legislated digital communism, but it certainly calls into question the value of something that is not transferable, the seller has not liability of the actions of, the right to fair use is forfeit, and they law claims they copyright holder can root your computer in order to enforce copyright. Software like this I should be paid to use! Not pay for it! Be careful. He has stolen from the public domain technology to implement this secure technology, SSL, then he uses it to hide from you the true nature of his communications with home-base, as he calls home and Jon.Ashkrofts your information. I'm glad I use SmartFTP and NCFTP and run KPF as a start in the line of defense against a Orwellian cabal of software and I.P.
    • Is that a combination of delude and dilute?
    • While we're at it, why don't we let them annex the Sudetenland. That ought to appease them enough that they'll never ask for more...
  • It might have been a good idea to leave the UCITA alone to be passed. Once passed, it can be thrown out in its entirety on Free Speech violations, by allowing the prohibition of public speech. This way, we'll be rid of the whole UCITA instead of parts of it like some people want...
  • The System works???? Well probably not but I was wondering if this has anything to do with all the bitching that went on here last week about this law. It would be nice to think that letters to congress-persons from /.ers actually had some real tangible affect. But its probably just a coincidence :p

  • free speech (Score:4, Interesting)

    by niloroth ( 462586 ) on Tuesday July 30, 2002 @05:32PM (#3982101) Homepage
    from the article:

    "Public Criticism: Free-speech advocates complained that UCITA let software makers prohibit public criticism of their products. A new section says that any provision limiting criticism rights is not enforceable, according to NCCUSL."

    Between this and the Patriot act, the new Homeland Security plans, and the limiting of F.O.I.A. during the "War on Terrorism", I am really starting to wonder what the first amendmend really means anymore.

    Please please support the ACLU and the EFF. And if you should happen to decide you want to be a Libertarian, that would be good as well.

    • Between this and the Patriot act, the new Homeland Security plans, and the limiting of F.O.I.A. during the "War on Terrorism", I am really starting to wonder what the first amendmend really means anymore.

      Try this: Go to a busy intersection in Riyadh, Saudi Arabia. Wear a low-cut dress (trust me, this will work regardless of gender). Start passing out leaflets saying the government is corrupt, and should abdicate, and that people should be allowed to do/act/say/pray as they please.

      You will have many years to Reflect on how things might have played out differently if you'd pushed your pamphlets in, say, New York City.

      That is what the first amendment means anymore.
      • Sorry to poke holes in your example but, unless I'm mistaken, the Saudi's don't have an equivalent to our 1st admendment, so your example means nothing. In the U.S. we are supposed to have free speech, so excuse us when we feel that right is being infringed.
        • Sorry to poke holes in your example but, unless I'm mistaken, the Saudi's don't have an equivalent to our 1st admendment, so your example means nothing. In the U.S. we are supposed to have free speech, so excuse us when we feel that right is being infringed.

          Er ... I was trying to point out that we *do* have an equivalent to our 1st amendment, and that any restrictions to our freedom of speech are minor compared to what happens elsewhere. This was an attempt to provide some perspective, and be funny.

          Having failed on both counts, I'll just sign off now. Cheers!

          • Er ... I was trying to point out that we *do* have an equivalent to our 1st amendment, and that any restrictions to our freedom of speech are minor compared to what happens elsewhere. This was an attempt to provide some perspective, and be funny.

            Try this: During the next Republican National Convention, got the front of the building where it is being held, Wear a low-cut dress (trust me, this will work regardless of gender). Start passing out leaflets saying the government is corrupt, and should abdicate, and that people should be allowed to do/act/say/pray as they please.

            Then tell me how much the 1st Amendment means in this country.

          • "Minor" restrictions are still restrictions, I don't want any that are only there to protect large corporate/government entities. In China, they're still allowed to have kids, but only two... that's minor, right? I don't want to go down that road.
      • Sure, things are worse in other places. That does not, in any way, diminish the loos of fundimental freedoms here in the US. You can say that someone with two broken legs is in more pain than someone with only one broken leg. But that doesn't stop the one broken leg from hurting you.
    • UCITA (as submitted to the states two or so years ago, and as enacted in at least VA and MD) currently allows software makers to prohibit criticism.

      The quote you cite is saying that this reading of UCITA's vague and loose language will specifically prohibit that outcome.

      In other words, they're finally going to get it right (at least partially).
      • UCITA cannot be "got right", because it's fundamentally flawed. The whole principal - you buy something, and then you get to read the contract you are now "legally" bound by, just isn't acceptable. And what is more, there is no current provision in UCITA to prevent the vendor changing the terms of the contract, after the sale, unilaterally.

        If you buy a book (a real, made of paper, honest to goodness book), it states what rights you have regarding ownership of the book and the copy of the contents of the book. Nothing else. Why is that? It's because you bought the book - you paid in advance (one time payment), for goods received. You didn't sign a contract licensing you the non-transferable use of the book; and guess what - you didn't with the software you bought at the store either.

        I like the quote from the UCITA guy McCabe about the supporters getting what they wanted. Will someone please hit him with a clue stick - what they wanted is something no one else is allowed to have, and for good reasons. If someone told me I could sell stuff to people, and make up the terms of the sale/contract afterwards, I'd want it too.
        • ...the topic was the enforceability of covenants against criticizing the vendor. The original poster misinterpreted the quote regarding that specific aspect of UCITA. While your whining about post-sale disclosure of terms may have merit, that issue pre-dates UCITA, as many states have been enforcing shrink-wrap agreements for a long time now (regardless of UCITA). Your point about books shows your lack of understanding of the current intellectual property regime. Finally, when I said "...(at least partially)." I meant to suggest that UCITA is still a flawed and ambiguous piece of uniform state law (but not for any of the reasons that you cite). Suffice it to say that you've only added to the confusion (including your own).
          • It's potentially uniform state law. Two state have enacted it, and several have anti-UCITA statutes. So for the several states that have been enforcing them there seem to be an equal number against them. The whole issue with UCITA is shrink wrap versus first sale - and the jury is still out across most of the country.

            With the existing UCITA, there's nothing to stop a vendor claiming your first born, let alone your right to complain - if we have to enumerate what they can't claim as part of their shrink wrap the law will never be as we'll still be writing the exclusions come doomsday. This is why the constitution/ammendments defines what the govenment can do, not what it can't. So yes, not allowing criticizing the vendor is finally the right thing to do, but given the way this is playing out, there will always be another.
  • Didn't the DMCA have some provisions that said it wasn't supposed to hurt interoperability?

    We see just how much a provision like that really means when even a Norwegian teenager can't write code to interoperate with an established MPAA data format...
  • "removing limits on public criticism,"

    How can they limit public criticism? Isn't that a serious violation of the first amendment?

    BG
    • How can they limit public criticism? Isn't that a serious violation of the first amendment?
      The big thing to remember about the First Amendment are the words "Congress shall pass no laws", it says absolutely nothing restricting businesses from putting limits in their contracts. The original UCITA allowed companies to squelch negative reviews of their products.
      • Rights are rights, they are inherent, not something you can sign away. By allowing you to waive your rights, they have effectively condoned the removal of that right.

        This has happened to many of the amendments, we can't let it happen to the 1st.
      • A good point.

        Though in this case, congress would be passing a law enabling businesses to limit speech, which would simply mean that Congress is passing a law that prohibits speech through the medium of businesses, which would violate the 1st Ammendment.

        Another argument: The terms of a contract are only valid so long as they can be legally enforced -- you can't enter into a legally binding contract with me that says that I can kill your family if you don't make your payments on time, for example. Thus a contract term is only valid if the law will enforce it -- thus congress must have passed a law which made such terms legal, and will use the force of law to enforce such terms. If the contract term being enforced by law a prohibition against speech, is that not a violation of the first ammendment?

        Just a thought. :)
        • no it isn't, a contract cannot permit a crime you are correct, however it is quite capable of restricting rights. By entering the contract you have agreed to waive the said rights within the limits of the contract, which everyone in the US is permited to do and it's not a crime. You can create a contract between yourself and the US government that waive's any and all your legal rights, and the government could legaly toss you in jail for pretty much whatever it wanted to, now this probably wouldn't stand up when it went to court, but the government wouldn't be found liable for any wrong doing. Most likely it would find that the contract was invalid cause you'd be crazy, but that's not the point. The point is that people in the US sign waivers all the time, many have to do it for their employment, it's not unusual by any means and perfectly legal.
          • Of course I'm not suggesting that it's illegal under the current legal interpretation.

            I'm merely suggesting an alternative interpretation which would make the enforcement of certain contract terms unconstitutional, on the basis that what is enforced by law -is- law. Also a key thing to note -- it doesn't bar just any restriction in a contract, just those that the constitution says cannot be made into law by Congress. For example, a sky diving school could have a contract in which you waived your (or your family's) right to sue them if your parachute doesn't open. The constitution doesn't prohibit laws restricting our ability to sue. If they tried to include a clause which prohibited you from publicizing how poorly they packed their parachutes, however, that would be unenforceable.

            It's just an interpretation, but one that I think has some merit from a logical standpoint. Obviously there would be some practical ramifications as, for instance, NDAs would be unenforceable.

    • Re:What Does This Mean? (Score:5, Informative)

      by aufait ( 45237 ) on Tuesday July 30, 2002 @06:14PM (#3982419) Homepage
      How can they limit public criticism? Isn't that a serious violation of the first amendment?

      There is no constitutional limit on what clauses a contract can contain.

      NDA clauses (I will show you my trace secrets as long as you promise not to tell anyone else) limit "free speech".

      Arbitration clauses limit your right to have courts address wrongs.

      Covenants (you can buy the house, but you can't put a satellite dish on the roof) limit what you can do with your private property.

      Non-compete clauses limit the jobs you can take.

      All of the above types of clauses have been upheld by the courts. The courts will only void a clause that violates the norms of society. (You can't sell yourself into slavery.)

      Having said all that, I think the no-criticism clauses step accross that line.

      • Re:What Does This Mean? (Score:3, Informative)

        by Wolfier ( 94144 )
        Please realize that traditional contract needs signing of both parties, while UCITA would make "click-thru" or "open the wrap and you agree" contracts legal binding.

        It makes the game a lot different - if you put stupid clauses in a traditional contract, sure they're legal, but I can disagree and walk away without signing. It is effortless.

        To disagree with UCITA contracts you'll have to jump thru hoops like refunding, calling, etc.

        That's why we think the UCITA would need more protection from stupid clauses.
      • There is no constitutional limit on what clauses a contract can contain.

        That's not strictly true. NDA's can't prevent you from whistle-blowing on criminal misconduct, for example.

        You can still sue and win after signing an arbitration clause... The Judge won't throw it out, but he is likely to rule against you unless you first go to arbitration and then show that the arbitrator was unreasonably biased... And you'll have to prove specific damages; the damages called for in the contract are only valid in arbitration.

        You can put up to a 1-meter dish or antenna on your house regardless of any covenants you agree to, and only the most narrowly defined non-competes are upheld in court.

        The no-criticism clauses aren't just over the line... When combined with the binding shrink-wrap terms, they're so far over the line that the line isn't visible from where they are. Its doubtful that they'd survive scrutiny in any court, regardless of the state laws. But then, they shouldn't have to be tested in court in the first place: they should be impossible from the start.
        • That's not strictly true.

          You haven't demonstrated that it is false since none of your examples has anything to do with the constitutuion.

          NDA's can't prevent you from whistle-blowing on criminal misconduct, for example.

          Depending on the particulars, this would fall into the "unclean hands" (judges will not enforce a contract that requires a party to violate the law) or the norms of society (It is against the best interest of society to allow a criminal to escape justice because of a contract). It has noting to do with the constitution.

          You can still sue and win after signing an arbitration clause...

          You admit that your chances of winning are minimal unless you go to arbitration first and can prove that the arbitrator was unreasonablly biased. Not a constitutional issue.

          You can put up to a 1-meter dish or antenna on your house regardless of any covenants you agree to,

          I would like to see a case where it said that.

          only the most narrowly defined non-competes are upheld in court.

          You are probably thinking of non-compete in employment contracts. Non-compete clauses in business contracts aren't usually given that kind of scrutiny. And, the reasons for this are that it doesn't serve the best interests of society to prevent a person from working in the field he was trained and the bargining positions of the parties.

          I do not mean to imply that contract clauses are iron-clad. Judges through them out clauses, and entire contracts, for a host of reasons. However, I am not aware of any being thrown out because the clause was unconstitutional.

          • "unclean hands"

            Which if I remember right is largely a common law matter set through a whole laundry list of precedent, much of which leads back to decisions on constitutional issues.

            [You can still sue and win is] Not a constitutional issue.

            Originates from due process, which is a constitutional issue.

            I would like to see a case where it said [that you can put up to a 1-meter dish or antenna]

            Actually, this isn't constitutional at all. Its FCC rules. They trump everything but the constitution and acts of congress with respect to installation of an antenna up to 1 meter in diameter for the purpose of receiving audio/visual signals where that installation is in a location of your exclusive control. You can even do it if you rent, and your landlord doesn't have the right to say no. In fact, if they want to challenge your installation, they're only permitted to take it to the FCC. The local legal system is specifically barred from ruling on the matter.

            They did that to help the Satellite TV industry get off the ground. Look it up! [fcc.gov]

            In the more general case, property use covenants are challenged all the time, with very mixed results.

            Non-compete clauses in business contracts aren't usually given that kind of scrutiny.

            I'm unable to think of a non-compete clause in a contract which does not impact an individual's employment prospects but does impact that individual's rights. Perhaps you could offer an example?

            not aware of any [contract] being thrown out because the clause was unconstitutional.

            Of course not. The body of law that supports it is challenged instead, and if challenged successfully then the contract clause is voided based on the revised body of law.

            So, most of this isn't directly constitutional, but to say that there is "no constitutional limit" is "not strictly true."
            • "unclean hands"

              Which if I remember right is largely a common law matter set through a whole laundry list of precedent, much of which leads back to decisions on constitutional issues.

              Common law, contract law, and the "unclean hands" principle goes back long before there was a constitution.

              [rooftop antennas]

              Congress passes a law; and, the courts refuse to enforce any contract clause that will violate that law. Where is the constitutional issue?

              I'm unable to think of a non-compete clause in a contract which does not impact an individual's employment prospects but does impact that individual's rights. Perhaps you could offer an example?

              Sure. I recently signed one. It was a contract to resell a company's services. There was a non-compete clause that prohibits me from participating, as an owner, in any other company that sells a similar service. Employment was specifically excluded from that clause.

              The body of law that supports it is challenged instead, and if challenged successfully then the contract clause is voided based on the revised body of law.

              Not every court ruling is based on constitutional issues. As I pointed out Common Law and Contract Law were around long before the constitution. As someone else has pointed out, the constitution is a limit on government, not individuals.

              "Constitutionality" is not grounds for challenging a contract's clause. And, until it is, saying a clause "voilates the constituion" is meaningless. I stand by my original comment: There is no constitutional limit on contracts. I will stand by that statement until I see one case where a judge through out a contract's clause based on that reason.

              • Common law, contract law, and the "unclean hands" principle goes back long before there was a constitution.

                All the way back to Britain as a matter of fact. But each has been modified in the past two centuries as a consequence of constitutional challenges. The impact they have on modern law reflects those adjustments.

                a non-compete clause that prohibits me from participating, as an owner, in any other company that sells a similar service.

                This obligation ceases upon termination of the contract, and you are able to terminate the contract at your option in a relatively short period of time, yes? As you know, a similar contract which didn't meet those preconditions would have a relatively difficult time surviving in court.

                I will stand by that statement until I see one case where a judge through out a contract's clause based on that reason.

                Well, okay, you want black and white and I see shades of gray. Have it your way.
      • Having said all that, I think the no-criticism clauses step across that line.

        Actually, non-disparagement clauses are fairly common in certain types of contracts/agreements....

      • Having said all that, I think the no-criticism clauses step accross that line.
        The real problem with UCITA isn't that some of the terms may cross the line. The whole point of UCITA is to make a contract exist, with one of the parties to the contract not even knowing that a contractual agreement happened at all. It's a way of making fine print even finer. It is an attempt to avoid market forces and accountability. It is an attempt to legalize FRAUD.
        • The real problem with UCITA isn't that some of the terms may cross the line.

          Don't get me wrong. I am no fan of UCITA or click-wrap licenses! I feel that click-wrap licenses are a way for software companies to "cherry-pick" the advantages of mass market retail sales and contract law while minimizing the disadvantages each. Specifically, contract, trade secrets, and consumer sales.

          mass market sales: Sales: Advantage: mass exposure, low overhead for distribution, leads to impulse buying. Disadvantage: Most states have laws protecting consumers.

          contract law: Advantage: can opt out of many of the restrictions concerning consumer law e.g. limiting damages, restricting use, etc. Disadvantage: high overhead because it requires that the salesman gets a signature before selling the product. This also reduces impulse buying.

          The whole point of UCITA is to make a contract exist, with one of the parties to the contract not even knowing that a contractual agreement happened at all.

          Getting a signature on the dotted line woud reduce that. However, the real fraud, IMO, is the fact that the software companies KNOW (and I believe, but can't prove that they also require) that all retail outlets have a no refund policy on opened software. Yet, they put the "refund" clause in every EULA so they "technically" meet all the requirements for a binding contract knowing full well that the consumer will have a difficult time obtaining a refund.


    • How can they limit public criticism?

      It's kind of like the Oprah beef thing, where she was sued for making statements slandering someone's line of business.

      In the United States over 200 years ago the founding fathers made it possible for the average citizen to criticize the powers that be: George W. Bush runs a government that enforces my right to say that he is a potty head.

      But, heaven forbid I should say something that disparages one of the sacred corporate entities!

      It reminds me of the Peoples Republic of China, where "slandering the state" is a crime. The only difference is that in the United States, substitute "corporations" for "state".

  • There is nothing a license SHOULD prohibit that currently existing law does not already prohibit.

    The whole POINT of a software license was originally to keep people from making illegal copies...hence the 'book' licenses of yore.

    Interestingly, copyright law ALREADY prohibits that. If I sold a piece of software with no license agreement, and someone copied it and distributed it over the Internet for no charge, I could still sue them for copyright infringement. The existence (or lack thereof) of a software license does not change this basic fact.

    Now, look at today's software licenses. The original point has been lost, and they are now used as chains with which to bind those who purchase software. (GPL excluded, of course.)

    The fact that the UCITA is being amended, and not completely thrown out, shows that people are, as always, missing the forest for the trees.
    • There is nothing a license SHOULD prohibit that currently existing law does not already prohibit. The whole POINT of a software license was originally to keep people from making illegal copies...hence the 'book' licenses of yore.
      I am not a legal expert, nor do I know very much about copyright and things like that, but...
      IMHO, the thoughts and ideas that are behind copyright and the idea of 'intellectual property' have become outdated. In the era of digital information it seems to me that any kind of claim to the property of some kind of (digital) information, be it a program or a document, is very hard to inforce. We see, both in music and software industry, that it becomes very difficult to prevent people from making 'illegal' copies.
      But then, any law that cannot be reinforced, should be reconsidered, not? So would it not be time to conceive of a new kind of intellectual property, and maybe let go of the idea of copyright ? Personally, I think legislation on copyright and intellectual property will make place for something entirely new within a few decades. We have seen how major companies struggle to prevent illegal copying, mostly without result. I would not be surprised if some old structures were to break down and make place for a totally new kind of legislation.
      My point being, why are they still trying to make new laws (with many flaws, that everyone can see) , when it is quite clear that those laws will not withstand the tide of technological advance?
    • The primary purpose of a software license is to thwart first use law, where an original purchaser of a product is permitted to dispose of that product in any way they see fit to do so.

      During the original "video revolution", there were a number of cases of "piracy" which had to be dismissed because when you bought a video, you *owned* it, and the copies were made with the permission, tacit or otherwise, of the *owner* of the video.

      Licensing permits a publisher to prohibit first use, and therefore control the after market. The current ASCAP and RIAA noise against "The Wherehouse", "Graywhale", and other stores whose business is the sale of used CDs is based on the idea of license, and the non-transferrability of the license, once granted.

      It's really telling that the referenced article notes that one of the ammendments to UCITA tries to reestablish implied warrantees on "material defects", when in fact the product itself is immaterial, leaving you just as screwed from "software with known defects" as before.

      -- Terry
      • I have a question -- although the RIAA keeps claiming that you only have a 'license' to the music you buy on a CD ... what is this license? Do they have it written up somewhere? Are they starting to put shrink-wrap licenses to agree with on CDs? As far as I can tell, I've never agreed to any license, even implicitly, when buying a CD.

        If they were to require you to sign something when buying a CD, I'd uphold their right to enforce their license. (Mind you, I'd vote with my wallet and refuse to buy CDs, but I think that people should have to comply with what they sign.) But as it stands, I can't understand how they have a leg to stand on by claiming that the material on a CD is only licensed to the customer.

        • When you buy a CD, it is generally understood that you aren't purchasing the rights to the music on the CD, but the CD itself. With this comes the implied license to listen to the music.

          However, the copyright remains with the artist/record company/whomever, which means they hold all rights to copy and distribute the music itself (and no, you can't copy the CD and say you were just duplicating the physical CD and therefore aren't liable). Fair use law was tacked on to allow people to make copies for their own private use and whatnot.

          When you purchase a book, you don't think that you now own the copyright on the text inside the book, do you? You've bought the physical materials (paper and ink, in this case), and with that came an implied right to read the book, sell it, quote it, etc., but not to make copies for people other than yourself.
          • No, I don't think that I own the 'rights to the music'. (I hope that wasn't what I implied, because that wasn't my intention.) I think that I've bought a copy of the music (which comes on physical media, a CD), and can't see any reason why anything beyond standard copyright applies. Just because the record industry talks about some 'implied license' doesn't make it real; as it's not necessary once I've bought a copy of the music for my own use.

            I think you're mistaken about this 'implied right' thing, for books, CDs, whatever. There's nothing implied about it -- when you buy a copy of the music/text/whatever, you have some rights and some restrictions set forth quite explicitly (Title 17). The RIAA, however, wants to claim that there are more restrictions than have been set forth in copyright laws; it's my position that, unless they have you sign a contract, it shouldn't be legally enforcable.

            (Looking at your post again, I think you may have thought that I was part of the crowd that says 'I bought it, I can do anything I want with it, including distribute it to anyone I want.' That wasn't my complaint; sorry if I gave that impression.)

            • I should read posts more carefully, as I did think you were in the "I bought it, I should be able to do anything I want with it" crowd. Sorry.

              And I agree that beyond actual copyright law, the copyright holder shouldn't be able to add additional restrictions without some sort of written agreement between you and them. Whether or not software EULAs count should depend on whether or not you get a chance to read the EULA before you purchase the software.
        • There is no license, they're just picking up on what the software industry started way back in the day, and we've all come to accept as the norm (unfortunately), the RIAA sees how sweet the deal is and figures they'll try it too.

          A license is suppose to be essentially the sale of a product under mutually agreed conditions. The thing is now, the conditions aren't mutually agreed upon and you can't negotiate them. These products are 'licensed' in stores that have no power to negotiate either. Basically the creators of these products are using it as a way to restrict what we do with what we buy from them, which should be illegal (even in software) when we're not involved in the creation of the license, and can't possibly negotiate it. This is like your car comming with the condition that you won't drive it after 11pm or you can only use gas refined from exxon oil or something equally retarted, yet we accept this in the software world, and others (RIAA, MPAA) are trying the same thing, even though their products are already covered by copyright law, and they get 90 rediculous years to do as they please with them. They feel they should squeeze a little more out of us by saying we can't sell (or rip or whatever) the hard, physical product (cd's and dvd's) we BOUGHT from the store, and didn't negotiate the sale of with them!

          • Well, in the software world, you have to agree to the licenses. (And yes, you could negotiate software licenses by calling the company, if you were so inclined. Before anyone uses the traditional rebuttal -- that many places won't let you return software after you've opened it, your first chance to see the license -- that's a seperate problem.)

            If I signed something that said I wouldn't drive my car after 11, then I would expect to be held to it, and I would have no problem if the manufacturer enforced it. Same thing if I signed a paper that said I wouldn't resell my music, install software on multiple machines, or anything else. Although I don't know if click-through licensing is considered the same legally, I treat it the same as a signature (I don't click unless I really mean it.)

            My problem with the RIAA's claim is that I haven't agreed to any license; but they claim that there is one.

            • On the other hand, I really hope that you wouldn't sign anything that said when you could drive a car that you paid for. And how do you think the manufacturer would enforce that? Your local PD?
              • I wouldn't. I was just pointing out that, rather than have somebody tell me what contracts I am/am not allowed to make, I would prefer the freedom to vote with my wallet instead. I find the idea that you can weasel out of the terms of a contract after the fact by claiming that it's unfair to be repulsive. I try to stick by my word, and wish that others would too.

                As for enforcement ... don't ask me. I wasn't the one who suggested it :). I suppose that if someone was willing to put up with such a restriction, they probably wouldn't mind having a black box that reported when the car was on/off to the manufacturer, after which they could come and take your car away, as it says right there on page 4, line 377 of your contract.

        • The liense you have is an implied license.

          If you look at the back of the CD case (usually it's the back of the case), you will see a copyright statement with the phrase "All Rights Reserved." in fine print.

          If you could get RIAA to sue you, you could probably argue the legality of them selling you something and then claiming a seperation between the artifact itself and the rights to manipulate the digital contents embodied in the artifact (on the basis of the embodiment itself).

          All I can say, since they are permitting you to do what you would be fighting to be able to do, is "good luck getting them to sue you to provide a test case". Unless you are a store that's large enough to be visible and small enough to be unable to defend yourself properly, and are selling used CDs, then RIAA is probably not going to help you out with challenging it.

          -- Terry
        • RIAA keeps claiming that you only have a 'license' to the music you buy on a CD

          When have they claimed this?

        • They may not have a leg to stand on, but they have lots of dollars to stand on.

          And enough dollars will usually buy a company all the legs it needs.
    • "The fact that the UCITA is being amended, and not completely thrown out, shows that people are, as always, missing the forest for the trees."

      Yesterday, I got into an argument with my boss. And I felt that he was wrong, and I made it clear to him in no uncertain terms that only an idiot would believe what he believed. Of course, he's not about to admit he's an idiot -- and at that point, he was not going to admit he's wrong, either.

      In politics, as in life, it is VERY important to allow people to save face. If people do not have a way they can exit gracefully from their current position, you will never convince them to change their point of view.

      UCITA will never die, but it can be altered to be something that doesn't look even remotely like what it was intended to be. And that may be the only way we can keep from getting what we don't want while allowing the people who have made the mistake of backing it to save face. They get to look good, we get what we want, and everyone (but Microsoft) is happy.

      It's an easy mistake for people to make, to look at UCITA and think it's a good thing. Most people don't have time to concern themselves with these things, either in favor or against it. If we penalize people for making this mistake, people are less likely to come to an agreement with us. The people backing UCITA simply forgot to consider GPL'ed code; THIS IS AN OPPORTUNITY FOR US TO LEGITIMIZE THE GPL!!!

      Most of the people backing UCITA are NOT interested in destroying the GPL. If we can add clauses to UCITA that DO legitimize it, then not only do we not have to worry about UCITA, but more importantly, we'll have a legal means for defending the GPL -- we won't have to hold our breath every time a commercial app steals GPL'ed source without publishing full source; instead, we can rest confident in the knowledge that UCITA is our ally, and that it will help defend our GPL'ed software from those who would steal it!

      So, I feel that rather than destroying UCITA, our aim should be to alter it to meet our own ends. The GPL will only gain legitimacy if we do it right, and the people who support UCITA now will become GPL supporters as well.
      • >> In politics, as in life, it is VERY important to allow people to save face. If people do not have a
        >> way they can exit gracefully from their current position, you will never convince them to change
        >> their point of view.

        What's wrong with "In light of this new information, I see that I was mistaken"?

        I use it all the time when I realize I screwed up.
        • yeah really, I'm sorry but saving face should be the last thing on the list when it comes to screwing with the public... I don't think politicians should be able to 'save face' after they've screwed everyone in the country over. They screw everyone but get to look good?? F-that they screwed up, make it well known and maybe the idiots won't vote them in again next time! if they look hunky dory and nobody can remember them fucking with everyone the sheep will most likely vote them in again! politics sucks cause everyone is trying to suck up to and piss on everyone else at the same time!

          You are right about one thing though when you are trying to bring someone around to another way of thinking or change their mind about something, then it's important stroke their ego and give them an opportunity to change their mind gracefully, but when the decision is made, and the mistakes are law, getting off gracefully is out the window!

      • Well current UCITA causes you to be forced to offer a certain level of support with the software. Which GPL software simply can't do, making unsupported GPL illigal. But I digress.
      • Not quite.

        Most software licenses proclaim that they're contracts, you must agree to the contract (and waive rights granted you under copyright law) if you wish to use the software.

        The GPL is a copyright license. As such, it cannot take away any rights granted under copyright law. It only gives additional rights, but only under certain terms. If you do not agree to the terms, you do not get those additional rights.. However, if you do not agree to the terms, copyright law itself prevents you from abusing it.

        Ergo, GPL is utterly unaffected by UCITA. UCITA's primary feature is that it gives much more legal weight to 'shrinkwrap contracts' that attempt to remove rights.

  • NCCUSL == Nitwits (Score:3, Funny)

    by r_j_prahad ( 309298 ) <r_j_prahad@NOSpAM.hotmail.com> on Tuesday July 30, 2002 @06:03PM (#3982347)
    You know these guys aren't the brightest bulbs in the chandelier when they booked this conference in Tucson, Arizona in the middle of the fscking summer, and smack dab in the middle of their local monsoon season to boot. Can't be anything more conducive to negotiating a delicate compromise than being locked in a room that's108 degrees, 94 percent humidity, and the power's off because of a lightning strike.

    I guess we can hope they'll all strangle each other before the week is out.

  • Tomorrow on Slashdot... (Score:3, Funny)

    by Izanagi ( 466436 ) on Tuesday July 30, 2002 @06:03PM (#3982349) Journal
    UCITA Smacked by DoS

  • ACLU membership (Score:4, Insightful)

    by vex24 ( 126288 ) on Tuesday July 30, 2002 @07:23PM (#3982841) Homepage
    Join the ACLU if you think this stuff is bullshit... I joined with a monthly contribution of $10. I never know it's gone. I figure I vote with my dollars when I buy a Pepsi or a pair of Nike's, I'd better vote for the good guys with at least a few bucks a month...
  • Here's a good thing:

    11. Amendment # 11: Section 410 (new)

    Add the following new section:

    SECTION 410. NO IMPLIED WARRANTIES FOR FREE COMPUTER PROGRAM. The warranties under Sections 401 and 403 apply to a computer program only if the licensor intends to make a profit from the distribution of the copy of the program or acts generally for commercial gain derived from controlling use of the program or making, modifying, or redistributing copies of the program.

  • Crazy people!

    Sik em USENIX etc. =P
  • A new section "expressly clarifies the applicability of other law to provide appropriate remedies for cases where known material defects are undisclosed," according to NCCUSL.

    This has to be a part that Microsoft is going to fight to their last breath. We know MS sits on top of undisclosed security faults, fixing them at their leisure, and this would allow anyone hacked with an exploit known but not fixed by MS to sue MS.
  • if we only license the contents of cds and dvds why do all the adverts tell us that "Now YOU can buy MiB on DVD or VHS"

    Shouldn't they really say, "Now you can buy a DVD or VHS tape containing a licenced copy of MiB"

    This is either misleading advertising or an explicit admission that you defacto own a non-excusive copy of the film?

  • Shrink-wrap Licenses (Score:2, Insightful)

    by n7lyg ( 219105 )
    The changes to UCITA are all very well-reasoned and good responses to the criticism that has dogged it since it was first proposed.

    However, it does not remove the worst offense of UCITA, which is the imposition of the shrink-wrap license on the unsuspecting purchasers of software. Nowhere in the existing NCCUSL is there any support for this outrageous abuse of power by the so-called "intellectual property" industry. The imposition of a shrink-wrap license is just too much. They did see fit to throw in the fact that UCITA now gives consumers a clear way to opt-out and get their money back if they feel the restrictions are too heinous, but the fact remains that this is still an attempt to impose a contract on someone who never signed up for the terms.
  • UCITA is like bad meat. Just trimming off the green and fuzzy parts might get some suckers to buy it, but it's still going to make you ill if you swallow it. It needs to be scrapped entirely, not modified.

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