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The Courts Government News

Court Addresses Legality of Shrinkwrap Licenses 375

NullProg writes "This article here comments on a legal case where a shrink-wrap license may be binding. This a scary precedent for any developer who has added a feature to their software already present in a competitors version."
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Court Addresses Legality of Shrinkwrap Licenses

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  • Why not? (Score:2, Interesting)

    by Kenja ( 541830 )
    Why should shrink wrap licenses be any less binding then say the GPL? Should a closed source vendor be able to look over GPLd software code to see how something was done with the intention of using it in their products?
    • Re:Why not? (Score:5, Insightful)

      by Palarran ( 323825 ) on Monday September 16, 2002 @05:39PM (#4269240)
      Because the GPL agreement adds rights, whereas most shrinkwrap agreements subtract rights from those provided by US law.

      A contract that I 'freely' enter into, in which I agree to become your property would be legally invalid, as an example. Certain rights cannot be waived. Not that I think the rights involved are inalienable, just that they shouldn't be so easily and totally abbrogated.

      The arguement that you own the CD, but must be given additional rights to copy it to your computer, or into memory, is specious. US Law provides that such acts as required for basic use of a purchased product are not cases of copyright infringing behavior.
    • Re:Why not? (Score:4, Insightful)

      by SquadBoy ( 167263 ) on Monday September 16, 2002 @05:39PM (#4269244) Homepage Journal
      "Should a closed source vendor be able to look over GPLd software code to see how something was done with the intention of using it in their products?"

      No of course not and neither should anyone else be able to steal code. But this is about reverse engineering. And yes closed source vendors should have the right to reverse engineer any feature in any piece of software they see. But keep in mind that in order to reverse engineer something and be legal you have to have *never* seen the code. So the GPL and the BSD licenses are friendly to reverse engineering because the only thing those two licences concern themselves with is the code. This is not the case with shrinkwrap licenses. Without reverse engineering I would dare say that very few of us would have tech jobs just because things would never have moved as fast as they have. Also odd as it is to say MS should be on the right side on this fight because without reverse engineering they would not be around today. In short next time read the article before posting flamebait.
      • Re:Why not? (Score:2, Interesting)

        by Kenja ( 541830 )
        However it seems to me that the "look and feel" of a program is covered by the GPL. Thus it is in much the same boat. The case in question is when a developer added features that where almost exactly like those found in another vendors products.

        If I produce a Windows application that looks just like KMail, would I not be in violation of at least the spirt of the GPL?

        • However it seems to me that the "look and feel" of a program is covered by the GPL.

          It seems to me that you don't know what you are talking about. Read the GPL. Read what Stallman thinks about "look and feel" and whether patents or copyrights should be applicable. Then come back and say "sorry".
          Thanks.
      • Re:Why not? (Score:5, Informative)

        by pclminion ( 145572 ) on Monday September 16, 2002 @05:53PM (#4269330)
        But keep in mind that in order to reverse engineer something and be legal you have to have *never* seen the code.

        I'm gonna have to stop contributing to Open Source projects then.

        No, really.

        If I could be sued for duplicating functionality which is present in open source products, just because I've seen the code, then I'll just have to stop looking at GPL'd code so I don't put myself into that position... For example at work I implement graphics pipelines (image manipulation). Since this is strongly related to, say, what Gimp does, this means I can't even look at Gimp source code because it'll put me at risk for some idiotic copyright infringement claim.

        Sorry, Gimp project. I can't afford a lawsuit. I suppose I won't be able to contribute. I'm glad I've never looked at the Gimp code!

        • Don't fret. (Score:5, Informative)

          by Chris Burke ( 6130 ) on Monday September 16, 2002 @06:45PM (#4269576) Homepage
          I'm sorry, but you really shouldn't base your future code contributions on a badly worded sentence on /..

          Copyright law, the only thing which the GPL covers, applies only to a specific work. Example: A painting of a sunset can be copyrighted, whilst "paintings of sunsets in general" cannot. It is not illegal to study a particular sunset painting, then create a sunset painting of your own.

          What this means for you and your (likely to remain ) hypothetical GIMP-contributing aspirations is that unless you actually copy the code that implements the features in the Gimp that you like, you have nothing to worry about. "A filter that does X" is not copyrightable. Even conceptual details such as "array of function pointers accessed with menu item id" aren't copyrightable. Thus the GPL doesn't apply to them.

          Unless you either can't help but copy the GIMP code (or are too lazy to do otherwise) you have nothing to worry about.

          • unless you actually copy the code that implements the features in the Gimp that you like, you have nothing to worry about.

            In a practical sense, yes. In a theoretical sense, copyright is more complex - notice that a silent movie is a derivative of a book without even using any words from it. You could infringe on gimp's copyright if you take the data structures and algorithmic details, even if you don't take the code itself. (Basically equivelent to providing a paraphrase of a book.) Any lawyer would advise you to not look at gimp, less you accidently reproduce that type of stuff. Most programmers wouldn't care, as long as it wasn't intentional, but you might run into an Ellison (who sued over several questionable infringements.)

            Unless you either can't help but copy the GIMP code

            Interestingly, this is actually a defense; if the way GIMP does it is the way that any good programmer would do it, it's considered functional and isn't copyrightable. The SSH people defended themselves against a complaint by the author of GMP this way, that there's only one real way to implement optimized versions of certain operations on the X86, so of course the assembly is going to look similar.
      • "Should a closed source vendor be able to look over GPLd software code to see how something was done with the intention of using it in their products?"

        No of course not and neither should anyone else be able to steal code. But this is about reverse engineering. And yes closed source vendors should have the right to reverse engineer any feature in any piece of software they see

        Yes and needless to say this is done routinely, using unforgiving black box and clean room protocols. IIS, for instance, was engineered by subjecting a Red Hat CD to beams of accelerated electrons and studying the diffraction patterns created by Apache. (Now I have it on good authority that the same facility is at work on Mozilla's tab-browsing feature.)
        • I know you were being sarcastic about the electron-beaming, but I thought I'd clear things up by stating how I understand it.

          (Not that stating opinions usually clears things up)

          A clean-room procedure can be as simple as one group of people writing out a list of features, and another group of people writing a product that fits this list of features.

          The fact that the diff between the two codebases only removes the comments is a *ahem* coincidence.
          • Re:Clean-rooming (Score:3, Informative)

            by ninewands ( 105734 )
            Actually, the way a proper clean-room project works is that one group of programmers analyzes the hell out of the target code and produce a product specification that is one heck of a lot more detailed than a "list of features". Basically, they produce a document that completely describes how the product will work.

            This design specification is then turned over to a second group of coders who have never seen the target codebase. In a really good clean-room project this second group probably doesn't even know that they're working in a clean-room. They create a completely new codebase from scratch to fulfill the requirements of the design document. Since no one working on the new codebase have ever seen the codebase being reverse-engineered, there is NO issue of copyright infringement. The clean-room defense is even more airtight if the coders don't know they're working in a clean-room.

            If both the target codebase and the end product are really well-written, I would not be surprised to see that large parts of the two codebases come out almost identical. Good coders will implement the same functionality in ways that are very similar, if not identical.

      • No. I disagree; it's perfectly ok to look at GPL'd code, see how things are done, and implement it yourself, using ideas, but not copy it as is. There's no stealing involved that I can see, whatsoever. That's what source code is open for isn't it?

        Furthermore, GPL doesn't prevent anyone from using GPL'd things, it just requires you to obey the restrictions if you distribute produce using the code. If you are not trying to sell (or otherwise distribute) the product there's no problem, even if copying things verbatim.

        Still, the distinction between copying verbatim (which copyright protects against), and reimplementing same functionality, is somewhat blurry... and thus, to play it safe you probably shouldn't look at GPL'ed code that does things, then use the mechanisms. Not because that's certainly wrong, but because lawyers can certainly twist things enough that it could be argued either way.

    • Re:Why not? (Score:3, Informative)

      by Waffle Iron ( 339739 )
      Why should shrink wrap licenses be any less binding then say the GPL?

      Because the GPL expands upon the standard rights you have with any copyrighted work that you come accross (which by default are very few). The "viral" nature of the GPL only comes into effect when you attempt to redistribute the work. By default, you can't redistribute a copyrighted work at all (except for dwindling fair use exceptions), so even the part of the GPL that bothers everyone is actually a relaxation of restrictions on your activities.

      Typical EULAs attempt to restrict your rights to an even smaller set than your default rights. Not only can you not redistribute the software (same as standard copyright) -- but they might, for example, try to prevent you from publishing benchmark results on the software. Standard copyright law does not prohibit you from benchmarking; that's where shrinkwrap attempts to come in with an additional (unsigned) "contract".

    • Because if you don't accept the GPL then you can't legally use the product. Copyright law gets in the way.

      If you buy a product and there is a license inside the box then that license should not apply since you had no way to study it before making the purchase.

      If you were required to actually sign a contract before buying the product all would be well, that would scare away quite a few buyers though. So it's not a road software companies want to be forced to walk.

      • Re:Why not? (Score:5, Informative)

        by Frater 219 ( 1455 ) on Monday September 16, 2002 @06:04PM (#4269388) Journal
        Because if you don't accept the GPL then you can't legally use the product.

        Sorry, no. Section 0 of the GPL [fsf.org] clearly states:

        Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted (...).

        The GPL assumes that since you have legally obtained a copy of the program -- recorded onto a hard disk, CD-ROM, book, or other piece of your property -- that you already have the right to use it. In doing so, you're simply legally using a piece of your private property, an action to which copyright traditionally does not address.

        Well-established, constitutionally upheld, internationally valid, largely uncontroversial Berne-Convention-class copyright only affects you when you copy, publicly perform, redistribute, etc. a covered work. It is only the experimental, alpha-test-quality, constitutionally untested, and controversial DMCA-class laws which attempt to extend copyright from the right to copy and publish to the right to enslave and deprive the user.

        • You are engaging in an over-simplification.

          In order to "use" the product you must install the product, and generally to do this you have to make a copy onto your hard drive and again into memory when the program executes. These are legal *on a single machine* if you are the "owner" of the software, according to 17 USC 117, otherwise you need a licence.

          To be the "owner" you must have received the physical media from the previous owner either as a gift or as a trade. In particular, downloading does not make you the owner (unless you have a licence to copy the product to your drive) because you aren't receiveing the physical media as part of the trade (ie you are creating a new copy). So unless you accept the GPL, you are commiting copyright infringement.

          So, while it is technically true that the act of running is not restricted, the act of enabling it to run definitely is.
      • Because if you don't accept the GPL then you can't legally use the product. Copyright law gets in the way.

        Either that was a typo, or you're confused. Either way, it's not right. You can legally use the product without accepting the GPL, or reading it, or whatever. It is only distribution and creation of derivative works -- those things prohibited by copyright -- that the GPL addresses.

        Anyway, I agree by and large (making me think it was a typo). The GPL doesn't ask you to not do anything you'd expect to be able to do with any other copyrighted work you bought and paid for. Shrink-wrap licenses do, and they ask you to agree -after- you've paid for them.

        Though outside of the inconvenience factor, I don't know how many sales would be lost by forcing you to agree before purchase. People sign things all the time without reading the fine print.
    • Re:Why not? (Score:3, Insightful)

      by MrResistor ( 120588 )
      Why should shrink wrap licenses be any less binding then say the GPL?

      Because the buyer isn't allowed to read the contract before effectively agreeing to it. In theory, if I decide I don't agree with the click-through EULA on a peice of software I buy I can just not agree and take the software back for a refund. In practice, almost no stores will accept a return on a software product that has been opened, which is a big catch-22 since there is no way to read the contract without opening the box and starting the install of the software. Therefore, in practice, you are bound by the agreement without being able to read it first.

      The only options you have left are to eat whatever price you paid for software you cannot use, or try to get a refund from the software company (good luck, feel free to read the accounts of people who have tried to get refunds for unused copies of Windows).

      That is why these licenses are (not should be) invalid.

    • The GPL is a copyright license granting you distribution rights. Shrink Wrap "licenses" are actually contracts being forced upon the user after purchase. The two are apples and oranges yet it's amazing how many people do not realize that.
      • The GPL is a contract that is forced on the coder after the downloading of GPLed source. What's the difference?

        It's amazing how many people see gold where only pyrite exists. Or ghosts where only fog exists. Or apples and oranges where only grapes exist.

        The GPL grants rights and it denies rights. So do EULAs from MS and other companies. "Distribution" and "Use" are some of the types types of things that they grant and deny rights of. The GPL deals almost exclusively with distribution. But certainly distribution is a kind of "use" right? "Distribution" rights and restrictions (Which the GPL has in spades over other open source lisenses) are no bettor or worse than placing rights and restrictions on "Use" or any other verb you can come up with.

        If shrink wrap lisenses for commercial software are not legally binding then neither is the GPL. They are both contracts that are entered into without physically signing that you agree to the contract. That is the basic problem. Is that legal or not? If it is, then it's legal for both. If not, then it's not for both.

        Don't make the mistake of agreeing only with that which suits you personally and ignoring that which does not. At that point everything does look like apples and oranges.

        • Re:Why not? (Score:5, Insightful)

          by aronc ( 258501 ) on Monday September 16, 2002 @08:01PM (#4270057)
          The GPL grants rights and it denies rights

          No, incorrect. Wholly and completely. The GPL only grants rights. Under basic copyright law you cannot redistribute someone elses copyrighted content without their permission, period. The GPL is simply a contractual means of granting that permission. If you follow the terms you can use/modify/redistribute the work. Nothing is "forced" on a coder. He can do anything he wants to with the code that is legal and the blanket of copyright law. If he doesn't like the GPL's terms he simply doesn't get the added right to distribute the work or derivative works.
      • Both are contracts granting the right to use the software under certain terms. The GPL is more about freedom, the others are more about restriction, but they are fundamentally the same thing.

        If shrinkwrap licenses are not held to be valid, then neither is the GPL.
        • Re:BZZT (Score:3, Insightful)

          by dvdeug ( 5033 )
          Both are contracts granting the right to use the software under certain terms.

          Nope; Section 0 of the GPL says "Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted, [...]"

          If shrinkwrap licenses are not held to be valid, then neither is the GPL.

          Why would a contract that says "you can use my IP, but only if you do this and this ..." be invalid? For a shrinkwrap license, you bought a copy and were then subjected to a license restricting what you could do with it. For GPL, you bought (or downloaded) a copy, and then got a license offering you different thinks you could do, that you couldn't have done without it. The GPL makes no claim that you must agree to it - "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 lawif you do not accept this License." (Emphasis mine.)
    • Re:Why not? (Score:3, Insightful)

      by Jason Earl ( 1894 )

      That's actually a good question. The reason that the GPL is likely to stand up in court (if we can only get someone dumb enough to contest it) is that by default you have no right to distribute someone else's copyrighted work. If I write a book, you can't distribute that book without my permission, that's pretty straightforward. All the GPL does is point out the requirements under which the author will allow you to distribute their copyrighted materials. If you distribute binaries of someone's copyrighted material (which would normally be illegal without permission) then you must abide by the author's wishes and make the source available. If all you want to do is use the software, then you don't have to pay any attention to the GPL. The GPL only kicks in when you distribute the software.

      End User License Agreements, on the other hand, are an entirely different kettle of fish. EULA's try to control how you use the software. They don't use copyright law either, they use contract law. They want to pretend that by clicking on a button or opening a package you are entering into a contract with them that allows them to add conditions to the software use.

      As for your question about reusing GPLed software. The GPL is not a software patent that protects software algorithms. Just like you can read James Bond novels and then go and write your own spy novel without getting afoul of copyright law, you can look at GPLed software and then rewrite the software for yourself. However, this puts you in somewhat of a difficult situation. It's much easier to prove that you didn't infringe a copyright if you never had access to the source :).

      The good news is that FSF has been very nice about working with people that they thought were infinging on their work. It's basically just the folks that borrowed the software lock, stock, and barrel that have to worry.

    • Re:Why not? (Score:2, Insightful)

      by saforrest ( 184929 )

      The binding clauses of the GPL are primarily about the right to redistribute software, not the right to use it. In particular, it says this:

      5. 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.

      Thus the FSF tacitly admits that you can use GPL'ed software without accepting the GPL up until you attempt to redistribute GPL'ed software, at which time you are implicitly bound by the license.

      So, no, this isn't the same as click-through license for use.

    • A closed source vendor is, in fact, encouraged to look over GPLd software code to see how something was done with the intention of using it in their products. It's just that they have to write it themselves afterwards, rather than copying it.

      The issues are much the same as writing a grade school report. You aren't prohibited from looking at encyclopedias. In fact, you're probably not going to be able to do a good report without looking at secondary sources. You're just not allowed to copy the secondary sources verbatim or with trivial modifications.

      The GPL doesn't restrict your fair use rights to the source, as a document you own a copy of. You are given the source code to a large extent so that you can read it and learn from it. You may also compile it and use it, and learn from it that way. You do not own the copyright to the source, however, so you can only modify and distribute it according to the license terms.
    • If the GPL was found invalid, it would simply mean that the copyright holder of the GPL software would be able to sue you for copyright infringement, even if you're following the GPL terms. The GPL is a promise: "if you do something that would otherwise infringe my copyright, I'll give you permission if you follow these terms".

      So if the GPL were null and void, it would be the same as if the software had no license, in other words, you can use it but you can't distribute copies, basically.

      Copyright law can't stop you from using the software on your computer (at least, that's what the lawyer guy at the back of Linux Journal said). Distributing copies would be infringement.

      However, the BIG BLINKING RED LIGHT DANGER DANGER is that courts will consider licenses as CONTRACTS. You can stipulate pretty much anything in a contract, you can give up any alienable right.

      If unsigned pieces of paper thrown into the box are treated as contracts, people should be scared shitless. Not just people who buy software, but anyone who USES A COMPUTER in any way!

      When the judge uses the phrase "freedom of contract" with respect to software licenses, that's pretty creepy. I didn't choose to enter any contract, I chose to buy or download something for my own use. If they want me to do something different than run it and use it, as I would do with a new toaster or vacuum cleaner, they damn well better make me get out my pen and sign something.

      And don't think this will stop at software. This idea will spread like a fungus to any service, any product with "intellectual property" of any form. The free market will become a minefield.

      Back to the topic at hand.. I'll take a world with an invalid GPL over a world with arbitrary unsigned contracts.

  • But then I realized it said "Shrink Wrap License may be binding not blinding". Why do they make that print so darn small?!?
  • For several operating systems (Mac OS, Mac OS X, and even the Windows family) there are overarching interface guidelines that shape how products look and interact with the user.

    Most of the original lawsuit claims that the one company infringed on the other's no-reverse-engineering clause because their menu layout too closely resembled their own.

    At what point does this type of claim, as well as those claiming interface copying on a larger scale (witness Watson vs Sherlock 3 on Mac OS X or Adobe vs Macromedia (tabbed interface)) become a function of interface guidelines. And at what point can we rely on judges (who are in general from an older generation and may not be as technically adept) to understand the differences between blatant infringement and UI advancement and compliance?

    At the least, this is something to watch. At the most it is something to dread.
  • If non-reverse engineering clauses prohibit taking features from other software than this could make for interesting court cases. There are very few computer programs that do not take some feature or other from another program. Most programs start out as doing what X does with that feature from Y along with this other great idea. So a company going to court to claim someone has copied features from their program has almost certainly copied features from other programs.

    This just does not make sense. Then again patents and some other parts of the law make very little sense yet they are still around. I guess it gives legal people a new way to pass the time.
    • So a company going to court to claim someone has copied features from their program has almost certainly copied features from other programs.

      And... why stop there? If the shrinkwrap is binding in this way, why can't, say, Blockbuster include a piece of paper in their videos (or better yet, very fine font screen at the beginning of the tape) saying that by watching this video you agree not to start/open or work for a video rental or sale store in this area?

      This would seem just as reasonable.
  • Story about a guy trying to get a refund [linuxjournal.com] for the OS that came with his toshiba. Hardly surprising that shrinkwrap licences also make an appearance in that story. Don't know if he has a chance, but it's an interesting read.
  • by hooded1 ( 89250 ) on Monday September 16, 2002 @05:44PM (#4269279) Homepage
    A lot of the time it doesn't really matter if something is 'legal' or not. To a large degree it seems to depend on how good your lawyers are. People routinely get away with murder because of lawyers. So is it really a big deal if some liscence deal goes awry because of a lawyer?
    • Come now. Just because a few people get away with murder, doesn't mean that making it illegal doesn't prevent a majority of potential murderers from killing someone because it's no longer without recourse.

      Making blatantly abusive contractual restrictions illegal will hopefully keep the majority from using them.
      • Just because a few people get away with murder, doesn't mean that making it illegal doesn't prevent a majority of potential murderers from killing someone because it's no longer without recourse.

        Is this the same logic that prevents everyone from using certain illegal drugs?

        I submit that laws only affect behavior in borderline cases. Would you park in front of a fire hydrant if it wern't illegal? Maybe. Would you park in the middle of the interstate if it weren't illegal? Probably not. Would you kill a family of four if it weren't illegal? Probably not. Do murder laws really prevent a statistically significant number of murders? I think that the answer is only by removing murderers from society, not by a significant amount of deterance.

        -Peter
        • Do murder laws really prevent a statistically significant number of murders?

          You bet they do! There's a shitload of drivers and a fair number of urban pedestrians that wouldn't be alive today if we didn't have the laws we do.

        • Do murder laws really prevent a statistically significant number of murders?

          First place, if there weren't murder laws, then we would have more retribution murders - O. J. Simpson would probably be dead today, with part of the money from his will probably going to kill his killers. (Hatfields and McCoys). Secondly, at least 1% of the population is amoral enough to kill someone if they could get away with it. If it's a choice between a million dollar fine and a death sentence, most people will take the million dollar fine. If it's the choice between a million dollar fine and whacking some loser who can bring you down with no consequences, a lot more people would whack that loser.
      • Making blatantly abusive contractual restrictions illegal will hopefully keep the majority from using them.

        Blatantly abusive (ie unconsionable) contracts are already illegal. Well not illegal, but unenforceable.
  • by having someone click 'i agree' to it, lets see that hold up in court!
    • by having someone click 'i agree' to it, lets see that hold up in court!

      I have often wondered how the courts would handle a EULA violation by a minor. In the state I live in, someone under the age of 18 cannot enter into a legally binding contract without the consent of thier parents. So, if I had a 16 year old kid, and he installed a copy of program XYZ, would anyone be bound by the EULA that he clicked "I accept" on, without my knowledge or consent?

    • On the other hand, what if everybody bought a piece of software and then returned the open package because they couldn't agree to the EULA? Can someone really insist that you agree to the EULA and then deny you the chance to return the opened package if it isn't to your liking? If you have to agree to the EULA you should be able to return the opened package. If enough people exercised this option it could get real expensive for the people who stock the software in the first place.
      • Concerning stores that won't let you return an opened software package...

        There's an easy way around that.

        Buy boxed software.
        Take home.
        Open box.
        Read EULA.
        Go 'ick'
        Return to store with opened box
        "I'd like to exchange this, it's broken"
        Get unopened box of software
        "I'd like to return this unopened software for a refund"

        Where's the problem? :)
    • Blockquoteth the poster:
      by having someone click 'i agree' to it, lets see that hold up in court!


      I'll answer this as if I believe in the current interpretation of copyright law...

      If you don't agree to the EULA, then you are violating copyright simply by the act of installing and running the software, because in order to run the software, you have to make... how many copies of it?

      Installing:
      1 copy to to the cdrom cache
      1 copy to ram
      1 copy to the hd

      Running:
      1 copy to the hd cache
      1 copy to ram
      1 copy to cpu l2 cache
      1 copy to cpu l1 cache (assuming non-exclusive cache)
      1 copy to cpu registers
      possibly one copy to page file on the hd

      Some lawyer somewhere will say this is a violation of copyright, even though you are using the software as intended because the only thing that gives you the right to make all these copies is that EULA.

      And don't bother saying "fair use" because the lawyers will tell you that fair use only covers copies that do not reproduce "significant" parts of the work, which seems to mean whatever the sitting judge thinks it means. And if you have to copy the entire program in order to run it, or at least copy those "significant" parts that do what you need to use it...

      Yes, this is incredibly stupid, but that seems to be the law.

      So, if you don't have a right to use the software, then your reverse engineering is the fruit of an illegal act, and is probably itself therefor illegal.

      Congratulations, you lose either way.
  • Bugs (Score:5, Funny)

    by DBordello ( 596751 ) on Monday September 16, 2002 @05:47PM (#4269300)
    Bad programmers beware. Since MS is the king of bugs, and has one of any kind you can think of in windows, if you software has any bugs in it you are guilty of reverse-engineering.
    • if you software has any bugs in it you are guilty of reverse-engineering.

      This of course is nonsense. If you try to mimic buggy software then you are in trouble. In the example you give it is only an infringement if your code simply craps out with no explanation and no support is given. If your code $h17cans itself in a way that is predictable then you should have no problem.

  • by ztc ( 516339 )
    This is really very silly. For years, producers have 'copied' one another -- software should be no different.

    Take a recent example that I'm sure some of you have seen advertised on TV (Pretty sure they run this advert on FOXNEWS in the US.) There's a short infomerical style bit where they push "Orange Action" cleaner. Well, regardless of its worth to a consumer, it apparently had real merit as a cleaner since fantastic!, Lysol, and Pledge all released "orange oil" versions of their products recently. You don't see these manufacturers suing each other because they are produced similiar products (and I don't think any of them would.)

    At worst, in this case, if "Orange Action" had a patent on "orange oil-based cleaning solutions", then it becomes a patent infringement case. This is how software *should* be (Well, that's assuming we should have software patents, which is an entirely separate argument.)

    [sarcasm]
    Now, I realize this article is more about the legality of shrink-wrap licenses, so I guess the next step is to shrink-wrap EVERYTHING (cleaner, food, etc.) with a license and protect the "innovative" creators.
    [/sarcasm]

    Rant over.
  • by serutan ( 259622 ) <snoopdoug&geekazon,com> on Monday September 16, 2002 @05:48PM (#4269304) Homepage
    At the extreme end of the spectrum, a world completely without the concept of intellectual property would also be without the overhead incurred by all this bickering. Does open source cut out most of this crap or just create new varieties?
    • ...a world completely without the concept of intellectual property...
      or the overhead of a paycheck to feed our families. I'm sorry, but intellectual property is what a lot of us are paid for. I think for the most part, however, copyright law protects the intellectual property of software, so I'm not sure if EULA's are really necessary except to prevent us from reverse engineering, which of course should not be a crime.
      • If you get your money from selling IP - then I'll be happy if you'll get that you deserved. Welcome to teaching, cattle feeding, heavy-equipment driving, even creation of software drivers for refridgerator door - get your money for doing REAL work. But not for artifical lawyer-inflicted burden named "intellectual property".
        • If I write a videogame, or slave on my album for the last 2 years, how is that not real work?

          I think who you should be mad at is the media companies who get rich off OTHER peoples work, not the people who do the work.

        • The least I can say about such an absurd statement is that it is utopian.

          Developers writing code are creating intellectual property. Do you want them to stop developing?

          Artists create art that is intellectual property. Do you want them to stop creating art?

          Authors writing books are creating intellectual property? Do you want them to stop writing?

          Don't even think about claiming that "real" creators would continue to work for free. People need and expect -- and have every right to expect -- to derive revenue from the work they do. The nature of the work is irrelevant. Someone who creates IP has just as much right to be paid as your odd example of someone driving heavy equipment -- who creates a hole in the ground. Lawyers are available to both in the case of non-payment.

          This kind of unreasoning antipathy to IP smacks of someone who thinks corporate lawyers invented it 5 minutes ago simply to keep him from stealing music.
          • by gilroy ( 155262 ) on Monday September 16, 2002 @06:48PM (#4269606) Homepage Journal
            Blockquoth the poster:

            Don't even think about claiming that "real" creators would continue to work for free. People need and expect -- and have every right to expect -- to derive revenue from the work they do.

            No, they don't. No one has a "right to expect to derive revenue". Hypothetical: I just punched six holes in the concrete blocks in my apartment. I think it's art. I also think that you're obligated to pay me for my art. After all, I have "every right to expect to derive revenue from the work" I do.


            Of course this is just silly. Unlike grammar school, you aren't rewarded for effort. You are rewarded for success -- for providing a good or service at a price someone else is willing to pay. If you can't add value using your business model, then too bad... you don't deserve some handout to enable you to follow your model.


            The guy digging a hole doesn't deserve a paycheck, either, unless there's someone who wants a hole dug enough to pay him. Or do you suggest he go around digging holes in people's lawns and demanding money?


            The issue here, as with all intellectual output, is: To what extent should the state enforce a framework under which you can make money writing software? Because in the state of nature, you wouldn't be able to... it's too easy to replicate -- far easier than to create -- and so you couldn't sell your software. Someone could always buy one copy and then undercut your price.


            We invent intellectual output law to create an artificial scarcity. This pumps up the value of the output. In return, the public expects this to encourage to production of new and better works, since there is an incentive. If the shrinkwrap license punishes legitimate reverse engineering and other competitive tactics, then it's pretty clear that the public's need is not being met. And in this case, the public should take its football and go home...


            I don't know if "real people" create for free. I've seen a lot of damn fine amateur work, made with no hope of compensation and for no gain save the sheer joy of creation. And of course, Mozart went on composing even though no copyright law existed in his day. Of course, that meant he didn't make money off copies; he had a different model.


            The field of intellectual output -- and the just compensation for such -- is much more complex than you seem to wish.

            • You have every right to try and sell me those six holes. And you have every right, however misguided, to expect that I will pay you for your efforts. Likewise, I have every right to ignore you.

              To cut to the chase, I think any imagined economic structure that assumes people can't attempt to sell the product of their labors -- whether you are digging holes, teaching school, writing code or creating art that rivals Michelanglo -- is absurdly utopian and not worthy of serious consideration.
              • by gilroy ( 155262 ) on Monday September 16, 2002 @07:22PM (#4269831) Homepage Journal
                Blockquoth the poster:

                To cut to the chase, I think any imagined economic structure that assumes people can't attempt to sell the product of their labors -- whether you are digging holes, teaching school, writing code or creating art that rivals Michelanglo -- is absurdly utopian and not worthy of serious consideration.

                The issue is not whether you can attempt to sell me a copy of your program. However, in the absence of intellectual output laws, the attempt is likely to be met with laughter. Say you charge $500 for a copy of FrobozzWord. I might buy that copy from you and then, when anyone else came to buy from you, I'd offer it for $251. If I can make even two sales, I win. And you lose.


                Is this wrong, if you wrote the program and I just bought it? For digital works, including software, the copy is identical and therefore exactly as usable. You hold no special position just for being first. Of course, in this sort of world, you wouldn't sell the program unless you could make enough on the first sale to justify developing it. It could be the end of mass-produced software and the beginning of a meteoric rise for mercenary programmers who freelance jobs.


                Either way, it certainly could lead to a slowdown in the development of software, with a concommitant impact on the economy and indeed the standard of living for many people. As such, the industrialized world has evolved laws for intellectual output. These laws artificially produce scarcity. Now, your copy and my copy -- although they are exact digital duplicates, indistinguishable by any test -- are no longer legally equivalent. Yours is acceptable; mine is "infringing" and therefore legally invalid. As such, I cannot claim the copy I made of your program is exactly as usable, since (in a legal sense) it cannot be used at all. This creates a market for your software (maybe) and allows you to sell multiple copies, since the marginal cost of procurement is not zero any longer.


                So far, so good. But this "copyright" is not a natural right. It's created by the state to meet the legitimate ends of the public; to wit, to spur innovation and creativity by offering incentives for people to create. If the execution of intellectual "property" law begins to significantly impede this end -- if the law serves more often than not to choke off creativity and slow the growth of the public domain -- then the public is entirely within its rights to reconsider the bargain. Then we might get something interesting happenning...


                As a total aside, I said earlier "You hold no special position just for being first." This is not strictly true, of course. It would be natural to assume that, because you wrote the program (whereas I only copied it), that you would be an expert in it. You could more easily solve tech problems, tweak settings for particular users, and upgrade the software's functionality. I would be playing catch-up. One could even imagine making your expertise the marketable item. If someone needs the program and tech support enough, one can even imagine making a business model of this. And it doesn't rest upon intellectual "property" laws at all.

          • This kind of unreasoning antipathy to IP smacks of someone who thinks corporate lawyers invented it 5 minutes ago ...

            It wasn't five minutes ago, but intellectual ``property'' [1] as it exists today is very recent. It is certainly less than 100 years old.

            The important point is that art, literature and science proceded for centuries without I``P'', and reasonable people today are making the argument that our current copyright and patent laws are, on balance, impeding the progress of art, literature and science. Look in a recent issue of Forbes (the Socialist Tool) for some non-techincal discussion of that.

            [1] Intellectual Property, like flying pigs, simply can't be found in nature. It is a construct of government, allowed but not required in the US by our constitution.

            • >> ...reasonable people today are making the argument that our current copyright and patent laws are, on balance, impeding the progress of art, literature and science.

              Agree. But I don't seem many reasonable posts on /. about copyright, patents and IP. Just rants and unsupportable stretching of open source/free software dogma to all forms of human interaction and exchange.
  • This is absurd (Score:2, Insightful)

    by tubabeat ( 605286 )
    Forget the shrink wrap, follow this through and they'll be saying GM reverse engineered Ford because they create vehicles which look similar. Well maybe they did, but how can you have any kind of competition if the resulting product has to be totally original?

    Most things aren't invented, they evolve.
  • It would appear that this case is very similar to the case where Lotus sued Paperback Software claiming that Paperback Software had breached their copyright by copying their UI. I think in that case there may have been more blatant copying but it seems to come down to a similar issue (it is hard to tell excatly how much was copied from reading the article). There is a bit about the case here and here [ncsu.edu].
  • Lets say another person happens to buy the product. Say Aunt Mable. Well Aunt Mable decides to run the product and I happen to look over her shoulder. Can I still reverse engineer?

    She is running the programming and looking at it. But she does not work for me. I am actually not running the program, just watching. And because the computer is not mine and I did not install the program am I bound?
  • by Aexia ( 517457 ) on Monday September 16, 2002 @06:22PM (#4269463)
    with a Door-User License Agreement. By walking through my door, anyone, including the BSA, agrees to free me of any obligation due to a EULA or similar license agreement.

    That way, if they try to claim that I'm bound by their EULA because I allegedly clicked a button after buying the software, I'll have an equally valid counter claim that they freed me of their's by actually walking through my door. Not my fault they didn't read all the terms and conditions before using my doorway!

    The DULA is posted on the *inside* of the door, of course.
    • by EvanED ( 569694 ) <evaned&gmail,com> on Monday September 16, 2002 @06:48PM (#4269608)
      I like the idea :)

      You have to give them the opportunity to exit though. Here's what I suggest: post a big poster that says "By walking through this door you agree to the Door User License Agreement (DULA), the terms of which are posted on the inside of the door." Make it big enough that that part won't be missed by anyone entering. Put it on the outside of the door.

      Also, technically the BSA doesn't have the authority to void contracts between you and a company such as MS, so you'd have to add a clause like "The persons using said door hereby agree to furnish all disbursements incured by the owner of the structure located on the property at in any civil or criminal trials brought about by the persons entering said structure, any organisations they are associated with, and any organisations said organisations are associated with or anyone associated with any of the above." (With thanks to m-w.com's Thesarus for a couple of those words, to make it more complex)
  • Illegal to learn. (Score:5, Insightful)

    by FyRE666 ( 263011 ) on Monday September 16, 2002 @06:27PM (#4269488) Homepage
    This is becoming ridiculous (actually the line where "ridiculous" starts was left behind several years ago I guess). As the article points out, reverse engineering is commonplace, and helps all software evolve and improve. The ruling effectively makes it illegal for any company, or individual, to learn and improve their products if their improvements have already been implemented by another company.

    So a few decades ago, if someone had thought to use a switch block instead of 10 if{}else statements, it would prevent anyone else doing the same. Or maybe Carmack could have put the smack down on anyone else using unchained modeX and raycasting to create an fps.

    Really, if the patent/copyright situation of today were in place 200 years ago, we'd still be riding around in horse-drawn carts and reading books (presuming said book was our own personal copy, not to be shared by any other family or friends) in our hovels at night by candlelight today. When are these companies going to realize that this pathetic squabbling is just serving the soul-less, grinning, moneygrabbing lawyers and they're just digging themselves into trenches so deep they'll never make it out again?
  • Any license which restricts your constitutional rights (e.g. Microsoft's "thou shalt not write a bad review of our software") or other rights (reverse engineering) is unenforceable. You can sign a contract with your landlord that prohibits you from ever having dark people as company, but that part of the contract is unenforceable. IANAL, but run it past yours and you'll find this kind of restraint is bullshit. This will be overturned on appeal.
  • by xigxag ( 167441 ) on Monday September 16, 2002 @06:37PM (#4269543)
    The article concludes by making the excellent point that if the United States chooses to cripple its technological development by the means of overly restrictive intellectual property licenses, it will eventually see the torch of intellectual leadership pass to other nations.

    This can't be stressed enough. Most people don't understand what's wrong with e.g. some company owning the rights to jpeg practically forever. The average American couldn't care in the slightest about such things except insofar as IP laws prevent them from downloading mp3 files. We (Americans) really need to convince our friends, neighbors, Congresscritters, etc., that such laws are really a disaster for the country as a whole...because, er, otherwise...the terrorists have won!
  • The RIAA, Microsoft, and others have done a really good job of portraying the big guns as getting the short end of the stick. The judges, legislators, etc. have adopted a view that end-users are screwing them over (mainly vis-a-vis piracy). With that frame of mind, things like authorizing corporations to crack into people's internet connections and boxes are making sense to them. These licenses seem even more plausible than that, since acceptance of the EULA is optional. We need to both educate our representatives or elect new ones that will realize that certain agreements are completely bogus, draconian, constitute usery, and therefore are illegal. Any contract that steps beyond the bounds of a compensative or mutual agreement and enters the realm of gaining control is illegal--Hollings (sp) knows this, the judges all know this, and we all know this--it's time we made them think about the digital age in the same way.
  • Following is the text snippet from Bowers v. Baystate covering the shrinkwrap license: ...

    A

    [12] Baystate contends that the Copyright Act preempts the prohibition of reverse engineering embodied in Mr. Bowers' shrink-wrap license agreements. Swayed by this argument, the district court considered Mr. Bowers' contract and copyright claims coextensive. The district court instructed the jury that "reverse engineering violates the license agreement only if Baystate's product that resulted from reverse engineering infringes Bowers' copyright because it copies protectable expression." Mr. Bowers lodged a timely objection to this instruction. This court holds that, under First Circuit law, the Copyright Act does not preempt or narrow the scope of Mr. Bowers' contract claim.

    [13][14] Courts respect freedom of contract and do not lightly set aside freely-entered agreements. Beacon Hill Civic Ass'n v. Ristorante Toscano, 422 Mass. 318, 662 N.E.2d 1015, 1017 (Mass.1996). Nevertheless, at times, federal regulation may preempt private contract. Cf. Nebbia v. New York, 291 U.S. 502, 523, 54 S.Ct. 505, 78 L.Ed. 940 (1934) ("Equally fundamental with the private right is [the right] of the public to regulate [the private right] in the common interest."). The Copyright Act provides that "all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright ... are governed exclusively by this title." 17 U.S.C. 301(a) (2000). The First Circuit does not interpret this language to require preemption as long as "a state cause of action requires an extra element, beyond mere copying, preparation of derivative works, performance, distribution or display." Data Gen. Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147, 1164, 32 USPQ2d 1385, 1397 (1st Cir.1994) (quotingGates Rubber Co. v. Bando Chem. Indus., 9 F.3d 823, 847, 28 USPQ2d 1503, 1520 (10th Cir.1993)); see also Computer Assoc. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 716 (2d Cir.1992) ("But if an 'extra element' is 'required instead of or in addition to the acts of reproduction, performance, distribution or display, in order to constitute a state-created cause of action, then the right does not lie "within the general scope of copyright," and there is no preemption.' ") (quoting 1 Nimmer on Copyright 1.01[B] at 1- 15). Nevertheless, "[n]ot every 'extra element' of a state law claim will establish a qualitative variance between the rights protected by federal copyright law and those protected by state law." Id.

    In Data General, Data General alleged that Grumman misappropriated its trade secret software. 36 F.3d at 1155. Grumman obtained that software from Data General's customers and former employees who were bound by confidentiality agreements to refrain from disclosing the software. Id. at 1154-55. In defense, Grumman argued that the Copyright Act preempted Data General's trade secret claim. Id. at 1158, 1165. The First Circuit held that the Copyright Act did not preempt the state law trade secret claim. Id. at 1165. Beyond mere copying, that state law claim required proof of a trade secret and breach of a duty of confidentiality. Id. These additional elements of proof, according to the First Circuit, made the trade secret claim qualitatively different from a copyright claim. Id. In contrast, the First Circuit noted that claims might be preempted whose extra elements are illusory, being "mere label[s] attached to the same odious business conduct." Id. at 1165 (quoting Mayer v. Josiah Wedgwood & Sons, Ltd., 601 F.Supp. 1523, 1535, 225 USPQ 776, 784 (S.D.N.Y.1985)). For example, the First Circuit observed that "a state law misappropriation claim will not escape preemption ... simply because a plaintiff must prove that copying was not only unauthorized but also commercially immoral." Id.

    The First Circuit has not addressed expressly whether the Copyright Act preempts a state law contract claim that restrains copying. This court perceives, however, that Data General's rationale would lead to a judgment that the Copyright Act does not preempt the state contract action in this case. Indeed, most courts to examine this issue have found that the Copyright Act does not preempt contractual constraints on copyrighted articles. See, e.g., ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 39 USPQ2d 1161 (7th Cir.1996) (holding that a shrink-wrap license was not preempted by federal copyright law); Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 457, 59 USPQ2d 1434, 1441-42 (6th Cir.2001) (holding a state law contract claim not preempted by federal copyright law); Nat'l Car Rental Sys., Inc. v. Computer Assocs. Int'l, Inc., 991 F.2d 426, 433, 26 USPQ2d 1370, 1376 (8th Cir.1993); Taquino v. Teledyne Monarch Rubber, 893 F.2d 1488, 1501 (5th Cir.1990); Acorn Structures v. Swantz, 846 F.2d 923, 926, 6 USPQ2d 1810, 1812 (4th Cir.1988); but see Lipscher v. LRP Publs., Inc., 266 F.3d 1305, 1312, 60 USPQ2d 1468, 1473 (11th Cir.2001).

    In ProCD, for example, the court found that the mutual assent and consideration required by a contract claim render that claim qualitatively different from copyright infringement. 86 F.3d at 1454. Consistent with Data General's reliance on a contract element, the court in ProCD reasoned: "A copyright is a right against the world. Contracts, by contrast, generally affect only their parties; strangers may do as they please, so contracts do not create 'exclusive rights.' " Id. This court believes that the First Circuit would follow the reasoning of ProCD and the majority of other courts to consider this issue. This court, therefore, holds that the Copyright Act does not preempt Mr. Bowers' contract claims.

    [15][16] This court now considers the scope of Mr. Bowers' contract protection. Without objection to the choice of law, the district court applied Massachusetts contract law. Accordingly, contract terms receive "the sense and meaning of the words which the parties have used; and if clear and free from ambiguity the words are to be taken and understood in their natural, usual and ordinary sense." Farber v. Mutual Life Ins. Co., 250 Mass. 250, 253, 145 N.E. 535 (Mass.1924); see also Kelly v. Marx, 428 Mass. 877, 881, 705 N.E.2d 1114 (Mass.1999) ("The proper course is to enforce contracts according to their plain meaning and not to undertake to be wiser than the parties.") (quoting Guerin v. Stacy, 175 Mass. 595, 597, 56 N.E. 892 (1900) (Holmes, C.J.)).

    In this case, the contract unambiguously prohibits "reverse engineering." That term means ordinarily "to study or analyze (a device, as a microchip for computers) in order to learn details of design, construction, and operation, perhaps to produce a copy or an improved version." Random House Unabridged Dictionary (1993); see also The Free On Line Dictionary of Computing (2001), at http://wombat.doc.ic.ac.uk/foldoc /foldoc.cgi?reverse+engineering (last visited Jul. 17, 2002). Thus, the contract in this case broadly prohibits any "reverse engineering" of the subject matter covered by the shrink-wrap agreement.

    [17] The record amply supports the jury's finding of a breach of that agreement. As discussed above, the district court erred in instructing the jury that copyright law limited the scope of Mr. Bowers' contract protection. Notwithstanding that error, this court may affirm the jury's breach of contract verdict if substantial record evidence would permit a reasonable jury to find in favor of Mr. Bowers based on a correct understanding of the law. Larch v. Mansfield Mun. Elec. Dep't, 272 F.3d 63, 69 (1st Cir.2001). The shrink-wrap agreements in this case are far broader than the protection afforded by copyright law. Even setting aside copyright violations, the record supports a finding of breach of the agreement between the parties. In view of the breadth of Mr. Bowers' contracts, this court perceives that substantial evidence supports the jury's breach of contract verdict relating to both the DOS and Windows versions of Draft-Pak.

    The record indicates, for example, that Baystate scheduled two weeks in Draft- Pak's development schedule to analyze the Designer's Toolkit. Indeed, Robert Bean, Baystate's president and CEO, testified that Baystate generally analyzed competitor's products to duplicate their functionality.

    The record also contains evidence of extensive and unusual similarities between Geodraft and the accused Draft-Pak--further evidence of reverse engineering. James Spencer, head of mechanical engineering and integration at the Space and Naval Warfare Systems Center, testified that he examined the relevant software programs to determine "the overall structure of the operating program" such as "how the operating programs actually executed the task of walking a user through creating a [GD & T] symbol." Mr. Spencer concluded: "In the process of taking the [ANSI Y14.5M] standard and breaking it down into its component parts to actually create a step-by-step process for a user using the software, both Geodraft and Draft-Pak [for DOS] use almost the identical process of breaking down that task into its individual pieces, and it's organized essentially identically." This evidence supports the jury's verdict of a contract breach based on reverse engineering.

    Mr. Ford also testified that he had compared Geodraft and Draft-Pak. When asked to describe the Draft-Pak interface, Mr. Ford responded: "It looked like I was looking at my own program [i.e., Geodraft]." Both Mr. Spencer and Mr. Ford explained in detail similarities between Geodraft and the accused Draft- Pak. Those similarities included the interrelationships between program screens, the manner in which parameter selection causes program branching, and the manner in which the GD & T symbols are drawn.

    Both witnesses also testified that those similarities extended beyond structure and design to include many idiosyncratic design choices and inadvertent design flaws. For example, both Geodraft and Draft-Pak offer "straightness tolerance" menu choices of "flat" and "cylindric," unusual in view of the use by ANSI Y14.5M of the terms "linear" and "circular," respectively. As another example, neither program requires the user to provide "angularity tolerance" secondary datum to create a feature control frame--a technical oversight that causes creation of an incomplete symbol. In sum, Mr. Spencer testified: "Based on my summary analysis of how the programs function, their errors from the standard and their similar nomenclatures reflecting nonstandard items, I would say that the Draft-Pak [for DOS] is a derivative copy of a Geodraft product."

    Mr. Ford and others also demonstrated to the jury the operation of Geodraft and both the DOS and Windows versions of the accused Draft-Pak. Those software demonstrations undoubtedly conveyed information to the jury that the paper record on appeal cannot easily replicate. This court, therefore, is especially reluctant to substitute its judgment for that of the jury on the sufficiency and interpretation of that evidence. In any event, the record fully supports the jury's verdict that Baystate breached its contract with Mr. Bowers.

    [18] Baystate does not contest the contract damages amount on appeal. Thus, this court sustains the district court's award of contract damages. Mr. Bowers, however, argues that the district court abused its discretion by dropping copyright damages from the combined damage award. To the contrary, this court perceives no abuse of discretion.

    The shrink-wrap license agreement prohibited, inter alia, all reverse engineering of Mr. Bowers' software, protection encompassing but more extensive than copyright protection, which prohibits only certain copying. Mr. Bowers' copyright and contract claims both rest on Baystate's copying of Mr. Bowers' software. Following the district court's instructions, the jury considered and awarded damages on each separately. This was entirely appropriate. The law is clear that the jury may award separate damages for each claim, "leaving it to the judge to make appropriate adjustments to avoid double recovery." Britton v. Maloney, 196 F.3d 24, 32 (1st Cir.1999) (citing Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 451 n. 3, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993)); see also Data Gen. Corp. v. Grumman Sys. Support Corp., 825 F.Supp. 340, 346 (D.Mass.1993) ("So long as a plaintiff is not twice compensated for a single injury, a judgment may be comprised of elements drawn from separate ... remedies."), aff'd in relevant part, 36 F.3d 1147 (1st Cir.1994). In this case, the breach of contract damages arose from the same copying and included the same lost sales that form the basis for the copyright damages. The district court, therefore, did not abuse its discretion by omitting from the final damage award the duplicative copyright damages. Because this court affirms the district court's omission of the copyright damages, this court need not reach the merits of Mr. Bowers' copyright infringement claim. ...
  • by Lumpy ( 12016 ) on Monday September 16, 2002 @06:53PM (#4269640) Homepage
    I have came to the realization that I am a criminal in their eyes. and I give up, I throw my hand up and surrender.. and I ignore and blateltly violate their EULAS and the corperate laws. Screw em. It's only a matter of time before Open Source and Linux/BSD is deemed illegal because it is a circumvention device. So I decided that I am not going to abide by any of their EULAS. I ignore them and intentionally violate them! the software police can kiss my ass, I dont care anymore. I use a very tiny bit of non-free software... but I guarentee that I violate the EULA in one way or another. so I digress and I no longer care.

    Screw em. screw em all... I now take the stance that anyone using software that has an EULA is a criminal, as I am a criminal... and us thieves will go on doing what we want and hoping and praying that they dont come knocking on our doors looking for our software.

    I give up. Innovation is dead, thought is dead, freedom is slavery.

    I really hope they're happy now... as they are creating a gigantic number of criminals by persuing their current path.
    • by bnenning ( 58349 ) on Monday September 16, 2002 @08:26PM (#4270194)
      I really hope they're happy now... as they are creating a gigantic number of criminals by persuing their current path.


      I know Ayn Rand isn't popular around here, but this seems appropriate:

      "There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws." - Ayn Rand,
      Atlas Shrugged


      ??AA and BSA types want there to be lots of "criminals"; this gives them more ammunition for anti-consumer laws "needed to stop piracy". These laws in turn create more criminals; rinse and repeat.

  • Kids (Score:5, Interesting)

    by orbital3 ( 153855 ) on Monday September 16, 2002 @07:09PM (#4269735)
    I've always wondered... couldn't you just have a kid come over and click "I Agree" on any EULA? As long as they're still children, they can't enter a legally binding contract with another party (at least in the US). So couldn't you get around the legalities of the EULA by having a minor click through? Surely not everyone who uses the software can be bound to the EULA if those people never were presented with a licensing agreement to agree to...
    • Re:Kids (Score:3, Interesting)

      by Dynedain ( 141758 )
      Interesting idea. How many people have their children install software because the 12 year old is so much more profficient at the computer than the parent? At least in California, if the kid enters a legally binding contract ("I Agree") without their legal guardian also signing the contract, then it is null and void. Statutory Rape cases have used this to break up otherwise legal marraiges.....why wouldn't it be valid in a shrink-wrap case?
    • by Maul ( 83993 )
      Technically, you are probably right about this. Someone with normal computer proficiency could hire a 17 year old high school kid to help install software for them... having them click "I agree." In California, at least, this should not be legally binding unless a parent is also present and agrees (it'd probably better to do this with somone else's kid, not your own).

      Unfortunately, the software company you try this on probably has better lawyers in larger quantities than you have access to. But if you were to luck out and get the right judge... it might hold in court. Until someone buys a law that says anyone who USES the software is bound to the EULA, even if they don't see the EULA's terms. -_-
    • Re:Kids (Score:2, Insightful)

      by Danse ( 1026 )

      I've heard that question addressed before. I don't remember the exact response, but the short version is that it's not legal if you do it knowingly. How they prove that, I'm not sure. Maybe they ask the kid.

  • The outcome is hardly surprising at common law, but you need to check what statutes are on the books that affect this. Statutes outlawing anti-competitive behaviour will often render a specific provision of this kind void.

    Some people have been suggesting that you could get somebody else to click the agreement, perhaps a child. If they're doing this under your direction, it won't make the slightest bit of difference - it will still amount to you signifying your agreement.

  • In the article Ed Foster says:

    Even if the ruling does stand, it doesn't overturn the very different precedents that exist in several other federal circuits.

    One thing that will get the Supreme Court to grant Cert is when two Federal Circuits come to conflicting decisions on a point of law.

    So perhaps in a year or two we'll hear from them on this and settle the matter once and for all.
  • Now all those hotline server agreements (and my KDX agreement) can be considered legaly binding. Hot shit, warez server, here I come.
  • from http://www.osopinion.com/perl/story/18698.html

    It's just plain interesting how software is licensed. In most purchases made under contract, the contract is negotiated, the price is settled, and then the exchange of value happens. But software is different.

    First, you must provide vendors with cash, then they tell you under what terms you've given them your money. And for some unknown reason, people think this seems logical.

    I propose an entirely new scheme that would operate similarly to the way licensing works now -- "by using this product, you agree to this license" -- except that it would work to the benefit of those who are paying for a product.

    1. Software Operators

    By accepting value, cash or otherwise, you agree to the following terms of use for the purchased software product, and by acceptance of that value (that is, cash) the software company is bound by this agreement.

    This agreement supersedes all other agreements, including click-through agreements, end-user license agreements (EULA) and other such mechanisms that are made at a later time, even when tacit approval of a click-through agreement is required for software installation.

    If at any time the Software Company (hereafter referred to as SC) wishes to cancel this agreement, it may do so by returning to the purchasing entity the amount of cash or other value initially agreed upon.

    By accepting payment for the software product, you, the SC, agree to be bound by this agreement and understand that it may not be set aside by any other agreements, constructs or legal means.

    You, the SC, agree that you are liable for monetary damages if it is discovered that, through negligent programming and testing, your product causes substantial financial loss to the purchaser. The only remedies permitted in this license are mediation or civil suit.

    2. Software Purchasers

    The purchaser of the software product shall be permitted at all times to maintain a copy of the product for archival purposes.

    The purchaser of the software product shall have and enjoy complete freedom to use the software product in any way that is deemed lawful by the laws in the jurisdiction in which the purchaser lives. Furthermore, the SC cannot stipulate (as in the case of Microsoft (Nasdaq: MSFT) FrontPage) that the purchaser must not use the SC's product to criticize or demean the SC.

    Respecting the intellectual property rights of the SC, no purchasing entity that purchases under this license may distribute copies of the software product without compensation in the amount of full retail price to the SC.

    SC agrees to make available all relevant documentation (or "tree-ware") necessary to make operating, using and troubleshooting the software product convenient to the end user provided that the end user is also the purchasing entity.

    3. Transfer and Test

    SC must agree that if the purchasing entity so chooses, he or she may donate the software product to a charitable organization of his or her choice and that all rights under this document also transfer.

    SC agrees that the purchasing entity may test, compare and measure the SC's software product against that of a competitor freely and without restriction. SC agrees that all of the test, comparing and measuring results may be published without restriction of medium, technology or public nature.

    Rebel Against EULA

    There it is. It isn't pretty, and I'm not a lawyer, which might be obvious already.

    But I encourage rebellion against ridiculous software licenses. It is incredible that Microsoft actually presumes that it can force you not to use FrontPage to create a site that criticizes Microsoft. So I say rebel against these ridiculous agreements.

    It amazes me that it is legal for a software company to dictate terms of use after a purchase. In no other instance in a consumer's life does this happen. We even negotiate the terms of an automobile purchase before we spend the money.

    Rebel against the EULA!

  • by werdna ( 39029 ) on Monday September 16, 2002 @08:46PM (#4270319) Journal
    This article here comments on a legal case where a shrink-wrap license may be binding.

    The Bowers case is scary, indeed, but it hardly breaks ground on the proposition quoted above. The Federal Circuit Opinion [georgetown.edu] relies on a longstanding string of case law (including the 1996 7th Circuit opinion in the ProCD case) finding a shrink-wrap agreement to be enforceable. While the enforceability of shrink-wraps will likely be heavily fact-dependent (and possibly jurisdiction-dependent), there has been enough guidance for years for a well-advised publisher to have little doubt that purchase and use of her software will be governed by the shrink-wrap. In other words, "Shrink wraps done right are enforceable. Duh."

    The scary result in Bowers is not the enforceability of the shrink-wrap agreement, but the enforceability of a particular provision (the no-reverse-engineering provision), and a holding that the Copyright law that permits reverse engineering DOES NOT PREEMPT a state contract claim. This is actually quite a huge(ly bad) result, and it is hard to distinguish the analysis of the Federal Circuit case from a hypothetical book with the "no fair use" shrink-wrap provision.

    This isn't a question of offer and acceptance -- its a question of federal law being circumvented by an activist court.
  • by bwt ( 68845 ) on Monday September 16, 2002 @09:01PM (#4270394)

    The court followed the ProCD case, which directly conflicts with Vault v Quaid on the matter of whether state contract law shrinkwrap terms are "preempted" by federal copyright law.

    Both ProCD and this court found that they were not because an "extra element" exists. Both courts got it wrong because they ignored 17 USC 117, which states that the "owner" of software can install it on a machine. In other words, installation is a first sale right by black letter law.

    In particular, the negotiation that occurs during the contract of sale fully comprehends installation and use. The shrinkwrap offers nothing new to the purchaser, and therefore there is no "extra element".

    Nimmer, the foremost authority on Copyright wrote a very long law review article specifically debunking ProCD's analysis on preemption. This court did a crappy analysis that wasn't even at the level of ProCD.

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