Anyone see Jonathan Erickson's editorial in Byte? It's great. I just wish that we saw more editorials like his and Declan McCullagh's in less technical publications as well. How can we do a better job of communicating this message to the general public?
Pick Me Up On Your Way Down
(Pick Me Up On Your Way Down: Page 1 of 1 )
By Jonathan Erickson
December 3, 2001
Sometimes the daily news is just way too reminiscent of Hank Thompson's classic country-and-western song "Pick Me Up On Your Way Down."
On the upside, for instance, you open the morning paper to good news that those restrictive software End User License Agreements (EULAs) took a shot to the chops when making a rare court appearance. An EULA, you recall, is the small print you don't get to read before buying a product because it's hidden inside shrinkwrap packaging. EULAs are where companies tell you that you don't own the product you just put down money to buy. EULAs are where companies tell you what you can and can't do with a product once you've paid your money for it and have it in your possession. EULAs, for instance, are where you'll find clauses like that in Microsoft's FrontPage web-site creation software that say: "You may not use the Software in connection with any site that disparages Microsoft, MSN, MSNBC, Expedia or their products or services..."
What makes unilateral EULAs like this possible is that they hardly ever get tested in court. Consequently, software vendors continue to pile restrictions on restrictions — and will keep on doing so until the courts tell them that enough is enough. Interestingly, the few times EULAs have ended up in court, they haven't fared too well. Certainly, that's the case with the recent ruling in Softman v. Adobe <http://www.cacd.uscourts.gov/CACD/RecentPubOp.nsf/bb61c530eab0911c882567cf005ac6f9/574aa79ff518021188256aed006ea2dc?OpenDocument> in U.S. District Court for Central California (Case No. CV 00-04161 DDP (AJWx)). In this instance, Adobe complained that Softman Products was violating Adobe's trademark because Softman was reselling essentially "used" copies of Adobe software. Judge Dean Pregerson disagreed, ruling that:
"...the purchaser commonly obtains a single copy of the software, with documentation, for a single price, which the purchaser pays at the time of the transaction, and which constitutes the entire payment for the 'license.' The license runs for an indefinite term without provisions for renewal. In light of these indicia, many courts and commentators conclude that a 'shrinkwrap license' transaction is a sale of goods rather than a license."
In other words, executing a software purchase is a sales transaction, not a license agreement, and they can resell products — including software, CDs, and the like — that they have bought. In Judge Pregerson's mind, copyright law applies to this case, meaning, of course, that consumers can't make copies for resell.
This narrow decision clearly isn't the end all for EULAs, but it does weaken them and give basic rights back to consumers, allowing us to resell used software just as we do with used books, used CDs, and used cars.
So just as you're starting to feel pretty good about the day, you turn the page to another story that brings you right back down — the 2nd U.S. Circuit Court of Appeal's ruling that source code isn't protected by the U.S. Constitution's free-speech doctrine. More specifically, the Court of Appeals ruled in Universal Studios v. Shawn Reimerdes <http://www.eff.org/Cases/MPAA_DVD_cases/20011128_ny_appeal_decision.html> (Case No. 00 Civ. 0277) in favor of big money Hollywood movie studios who were all over Eric Corley and 2600 Magazine <http://www.2600.com/> like a cheap suit, trying to force the removal of links to DeCSS software that unscrambles DVD encryption. In essence, the appeal judges concurred with U.S. District Judge Lewis Kaplan who decided that DeCSS source code represented great financial harm to Hollywood.
Any hope that the day would pick back up was quickly dashed by another news story, this one focusing on Ed Felton's lawsuit against the Recording Industry Association of America (Felton v. RIAA <http://www.eff.org/Cases/Felton_v_RIAA/>, Case No. CV-01-2669 (GEB)) in the U.S. District Court for New Jersey. The RIAA, you recall, donned its brown shirts, jack boots, and white robes in an effort to intimidate Professor Felton from exercising his First Amendment rights of free speech to present the results of his research at an academic conference. On behalf of Felton and his team, the Electronic Frontier Foundation <http://www.eff.org> asked the court to declare that it has a First Amendment right to discuss and publish its work, even if it may discuss weaknesses in the technological systems used to control digital music. Allowing less than 30 minutes of debate, Judge Garrett Brown quickly dismissed the case, along with our right not to be intimidated and our right to free speech.
Oh well, maybe it's time to bring back disco. Life really is too much like a country-and-western song.