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."
Why not? (Score:2, Interesting)
Re:Why not? (Score:5, Insightful)
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)
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)
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?
Re:Why not? (Score:2)
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)
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)
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.
Re:Don't fret. (Score:2)
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.
Re:Why not? (Score:3, Interesting)
In a similar vein, television studios and computer game developers often have to trash idea submissions from fans without reading them, since if Person A sends an idea to Company B, and Company B had already independently thought of and was working on Person A's idea, Person A could then claim that Company B had stolen his idea.
Tim
Can't copyright an idea (Score:5, Informative)
So it could be claimed that he learned how to write his code from looking at the GPL code.
You can't copyright an idea. United States copyright law, 17 USC 102 [cornell.edu], states that "[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work".
Re:Can't copyright an idea (Score:2, Informative)
That is a non sequitor. Implementations and ideas are not interchangeable. Implementing an idea does not cause the idea to become the implementation (despite a remarkable implementation, the idea of pretty ladies smiling continues to exist separate of the Mona Lisa), which is what you have to assume for what you said to make sense.
Re:Why not? (Score:2)
My whole point is I do know how to write an efficient image rotation algorithm, but if I even set eyes on Gimp code it suddenly places me in a tight spot.
This can't possibly be right, can it? What if I look at Apache code? Does this forever ban be from writing network protocols because I saw how they do it? After all, how can I possibly prove that my BlinkenProtocol 1.5 isn't derived from something in Apache?
Isn't it the same situation with companies who purchase access to Microsoft source code? These people have to be extremely careful to not infringe Microsoft's copyright. It seems like more hassle than it's worth.
This all seems terribly counterproductive. The programmer with the serious experience who would be most valuable on the project must avoid it, because they could be sued for copyright infringement.
Anyway, that is what I meant by my rant. I certainly have no need to steal code from a GPL project when I already know what I'm doing. It just prevents me from contributing.
Re:Why not? (Score:3, Interesting)
Nothing. Apache is released under a license similar to the original BSD license (i.e. free reuse without need to include the source code, but with an advertizing clause).
Of course the flip situation is also quite likely. If you work on a Free Software program that's similar to the proprietary software you write at work, you're opening up that Free Software project to charges that they're stealing code from your employer. That's likely to be true no matter what license the Free Software uses. This is an inherent problem with our Copyright system, not something that's in any way restricted to Free Software.
Re:Why not? (Score:2, Insightful)
It has always been the position of any free software advocate I've ever heard from that this sort of thing is ridiculous.
In the proprietary software world, sure, people are afraid of being sued because their IP was "tainted" by having seen someone else's IP. And certainly, at least in many allegedly civilised countries, anyone can sue anyone for any reason, so there is no way to protect yourself 100% from the annoyance of a court proceeding. Novell for one seems to be rather trigger-happy, if you ask Jeff Merkey at least. I suppose it doesn't pay to piss of Apple either, given their legal track record.
So it comes down to whether or not you trust the intentions of the free software camp. Certainly the GIMP people could go out and start suing everyone in sight who made any kind of image manipulation software, just as a fishing expedition, and they would probably lose unilaterally. But the free software culture, as I said, has long been opposed to the legal theory that copyright extends to ideas as opposed to implementations, and to the idea of your brain being tainted by how or where it learned things. I mean, really. Does anyone expect popular novelists never to read each other's works just to protect themselves from suits about adjective placement?
OTOH, since the proprietary software world is so consumed with the idea of IP über alles, we in the free software world know we have to be very careful looking at source code we don't have the right to hack on. Not because the law is on (say) Microsoft's side, but because they could affort to harrass us with a legal stink either way.
Re:Why not? (Score:2)
Clean-rooming (Score:2)
(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)
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.
Re:Why not? (Score:2)
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:2)
Re:Why not? (Score:3, Informative)
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".
Re:Why not? (Score:2)
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)
Sorry, no. Section 0 of the GPL [fsf.org] clearly states:
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.
Re:Why not? (Score:2)
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.
Re:Why not? (Score:2)
And this is different from restricting my "Use" of the code by distributing it how I like how? Maybe my entire "use" of the code is distributing it. How is restricting distribution any different from restricting the running of it. They are both actions that can be taken with the copyrighted object in question.
Is this some kind of joke? Use of a program is not covered nor is it restricted in any way. Distribution is granted, sbuject to conditions. If you don't like it, don't accept the license. Then it reverts to standard copyright, which also governs distribution. By default, standard copyright reserves all rights to the author.
Oh, wait. IHBT, right?
Re:Why not? (Score:2)
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)
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.
Re:Why not? (Score:2)
Re:Why not? (Score:2)
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)
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.
BZZT (Score:2)
If shrinkwrap licenses are not held to be valid, then neither is the GPL.
Re:BZZT (Score:3, Insightful)
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
Re:Why not? (Score:3, Insightful)
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)
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.
Re:Why not? (Score:2)
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.
Re:Why not? (Score:2)
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.
Re:Why not? (Score:2)
No it itsn't, at least not any more than living in the US is agreeing to abide by its laws; the statement you posted is not necessary. What it forbids would be forbidden anyway by US code; it's just reminding you of that fact.
Re:Why not? (Score:4, Funny)
Gee that proves it. If you'd opened the book (after paying for it and taking it home) and found a licensing agreement requiring you to give the author and the publisher blowjobs on alternate wednesdays, would you be bound by that too? If so, I've got stuff to sell you....
Sorry, Jack, if you want anything more than the requirments of law, you better have my signature on some piece of paper. Otherwise, go away.
Re:Why not? (Score:2)
Tim
Re:Why not? (Score:3, Insightful)
Ignorance of THE LAW is no defence - the latin maxim is ignorantia juris non excusat - which means you aren't entitled to violate the copyright act/DMCA/whatever just because you haven't read them.
That doesn't mean that you can necessarily be held to contractual terms you haven't read or had brought to your attention. Contracts are bargains between two rational parties and are entirely voluntary. If you and the other guy don't come to an agreement, you don't have a contract. OTOH, the whole point of statutes is that they're not voluntary. In the case of the book, they can print whatever they like on the front cover, books are covered by the first sale doctrine and I can do what I please with the physical item. I can't make copies, except within the fair use exceptions, but that's a matter of copyright statutes not contract law.
The other problem with claiming a book license is that I have no relationship with the author or publisher so there's no privity of contract. If they shrinkwrapped it, so that I had to agree to certain rights to get the right to open the package and read, then you'd have something.
Parent up... (Score:2)
Re:Parent up... (Score:2)
Source is copyrightable and binaries are not? That'll ne news to a world full of developers!
I suppose the original word document for a novel is copyrightable but the mass produced books are not? I don;t think so.
If (C) grants you the right to demand signatureless contracts on all users than surely the code generated from the source does also.
Very true. (Score:2)
And it made me realize another way in which shrinkwrap licenses are weird... They're the only thing I know of where you can reasonably and legally end the transaction without any knowlege of the license nor any form of redress if you disagree. I can't move into an apartment without having signed the lease, and I don't pay my first month's rent until I've done so. If the lease terms suck, I can either walk away or renegotiate (I've done this before, actually).
Basically, in pretty much every other contract in existance you have to read and sign the agreement before you get the thing which the contract purports to give.
I wonder, if shrinkwrap licenses -really- went under judicial review (they didn't in this case; the judge refused to rule on that aspect, only giving the license defacto validity) if the "freely entered" concept of contract law would be found to be violated.
It made perfect sense the first time I read it... (Score:2, Funny)
Building interface compliant interfaces (Score:2, Interesting)
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.
I don't see how this can work (Score:2, Interesting)
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.
Re:I don't see how this can work (Score:3, Insightful)
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.
Was this story already mentioned here? (Score:2)
Laws Don't Always Matter (Score:3, Insightful)
Re:Laws Don't Always Matter (Score:2)
Making blatantly abusive contractual restrictions illegal will hopefully keep the majority from using them.
Re:Laws Don't Always Matter (Score:2, Insightful)
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
Re:Laws Don't Always Matter (Score:2)
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.
Re:Laws Don't Always Matter (Score:2)
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.
Re:Laws Don't Always Matter (Score:2)
Blatantly abusive (ie unconsionable) contracts are already illegal. Well not illegal, but unenforceable.
Why not just avoid the EULA... (Score:2, Funny)
Re:Why not just avoid the EULA... (Score:3, Interesting)
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?
Re:Why not just avoid the EULA... (Score:2)
Re:Why not just avoid the EULA... (Score:2)
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?
Re:Why not just avoid the EULA... (Score:2)
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.
Re:Why not just avoid the EULA... (Score:2)
Bugs (Score:5, Funny)
Re:Bugs (Score:2)
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.
Another example (Score:2, Funny)
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.
Good Motivation for Open Source? (Score:4, Insightful)
Re:Good Motivation for Open Source? (Score:2)
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.
Re:Good Motivation for Open Source? (Score:3, Insightful)
Re:Good Motivation for Open Source? (Score:2)
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.
Absurd Statement Re: Intellectual Property (Score:3, Insightful)
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.
Re:Absurd Statement Re: Intellectual Property (Score:5, Insightful)
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.
Re:Absurd Statement Re: Intellectual Property (Score:2)
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.
Re:Absurd Statement Re: Intellectual Property (Score:5, Interesting)
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.
Re:Absurd Statement Re: Intellectual Property (Score:3, Insightful)
And no one is taking that away from you... you still have your original file, picture, whatever. However, that is not the "property" of "intellectual property" -- or at least, it's not the bit that has everyone in an uproar. Your statement seems to imply that you have a natural right of ownership in the nebulous idea behind the program; in its very form and not just the particular bits on your computer.
I would argue that you have no such natural property right -- that in fact no natural intellectual "property" right exists ever. You have the manufactured copyright, which is a legal fiction enacted by the state to advance the public's interest in a vibrant creative field and a growing public domain.
Intellectual "property" law is based on a fiction, which explains why all justifications of it become so convoluted. Due to the unceasing efforts of the Content Cartel, we are trying harder and harder to match an inappropriate legal model -- physical property -- to an increasingly non-conforming phenomenon (intellectual output). Despite what Ecclesiastes tells you, there is something new under the sun... Intellectual output as a vast and growing fraction of the economy is a new phenomenon (perhaps two centuries, at best), and it is far from clear that old models will be applicable.
So... the state creates copyright, which purports to give you "ownership" of your intellectual output in all its expression. This mechanism is intrinsically a fraud, but has historically been a benevolent fraud. It didn't distort things too much, it created incentives to create, and seemed to more or less "promote the Progress of science and Useful Arts". The digital revolution has stripped away the incidental physical trappings that always tagged the production and distribution of intellectual output. This has, more or less by accident, revealed the intrinsically fictional nature of intellectual "property" -- ironically, just as that term gained adherence.
What we face now is a radical usurpation of power on the part of certain parties, callously upending centuries of common agreement and hoping, by throwing the framework into chaos, to cement the relatively new concept of "property" rights in intellectual output... Perhaps purely by chance -- but likely not -- this is done in such a way as to freeze-in current dominant corporations and to commoditize intellectual output. But what they have opened up (certainly without intent or willingness) is a complete re-examiniation of the whole intellectual output regime -- a review by (one hopes) an informed citizenry to ensure that the public's interest in the copyright/trademark/patent bargain is being guarded.
Would that such would occur...
Re:Absurd Statement Re: Intellectual Property (Score:2, Insightful)
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.
Re:Absurd Statement Re: Intellectual Property (Score:2)
Agree. But I don't seem many reasonable posts on
Re:Absurd Statement Re: Intellectual Property (Score:2)
As for developers, I don't see any difference between "have a buyer for their program" and "hope to force people to pay for that program". You write a program, you sell the program. (You aren't claiming that developers don't have a right to put their programs in shrink-wrapped boxes and retail them, are you?)
Everyone has a right to make something and try to sell it.
This is absurd (Score:2, Insightful)
Most things aren't invented, they evolve.
Is this similar to the Lotus 1-2-3 thing (Score:2, Informative)
And here is a question (Score:2)
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?
Fortunately, I've protected myself from EULAs (Score:5, Insightful)
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.
Re:Fortunately, I've protected myself from EULAs (Score:5, Funny)
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)
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?
Unenforceable, will be overturned (Score:2)
Please read the linked article (Score:5, Insightful)
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!
Shrink-Wrap licenses are not *ALL* to blame (Score:2)
Text of case regarding the shrinkwrap license (Score:2, Informative)
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
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
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
[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
It no longer matters... (Score:5, Insightful)
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.
Re:It no longer matters... (Score:4, Insightful)
I know Ayn Rand isn't popular around here, but this seems appropriate:
??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)
Re:Kids (Score:3, Interesting)
Re:Kids (Score:2)
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)
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.
Re:Kids (Score:3, Funny)
And since it's illegal to manufacture a circumvention device, anyone concerned about the DMCA should definitely use birth control.
Not surprising - and not a problem ususally (Score:2)
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.
This might get the Supremes to sing. (Score:2)
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.
This is great!!!!!! (Score:2)
Let's initiate an EVLA (Score:2)
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!
Wake up dudes! This has been the law for a decade (Score:5, Interesting)
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.
Once Again, 17 USC 117 is ignored (Score:5, Informative)
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.
Re:And? (Score:2)
Contracts of adhesion (Score:2, Insightful)
It's a contract and you agreed to it, plain and simple.
A contract where one or more of the parties has no bargaining power, a "take it or leave it" contract, is called a "contract of adhesion". Many jurisdictions limit what rights can be waived in such a contract.
Re:If Apple has something like it... (Score:2)
Basically, Apple licenced the right to use a look-alike GUI to Microsoft for MS Windows. Apple interpreted it as meaning, "For Windows 1." When Microsoft released updates, with the lookalike GUI, Apple sued. The courts sided with Microsoft, and that's why Microsoft is able to pretty much copy their entire GUI from Apple.