[CLUE-Talk] Copyright vs. software license.

[Jed S. Baer]

David Anselmi wrote:
> 
> Dan Bernstein (author of qmail) has some comments here:
> http://cr.yp.to/softwarelaw.html
> 
> He seems to know more than me about copyright law and basically says
> that license agreements are unenforcable as they violate what you're
> allowed to do with software you buy.
> 
> I'd like to think Dan's interpretation is correct, but since M$ has
> more lawyers than I do, it may not be in a practical sense.

IANAL. The article sounds a bit dated to me. Any current discussion
would, I think, reference DMCA and UCITA. The lanuge in the cited USC
states that it is not an infringement for an owner to do "X". However,
this is not the same as prohibiting parties to a contract from agreeing
upon prohibited activities. In other words, an individual has the
freedom to waive his/her rights and/or privileges. Consider, for
example, Miranda: you have the right to remain silent. This does not
prevent an officer of the law or court from asking you questions, and
you might, in fact, answer them, thus, in effect, waiving your right
against self incrimination. AFAIK, a license is a form of contract. So,
even though copyright law says you can, you may still enter into a
contract in which you agree that you won't. I don't see anything here
showing law reading "owners may not prohibit ...". Perhaps the title of
the section "Limitations on exclusive rights ..." implies such a
prohibition? Still, we're talking here about infringement of copyright,
not violation of a contract.

There are certainly cases where criminal or civil law specifically
prohibits certain activities, and in those cases, any clauses in a
contract which violate such prohibitions are void. Colorado employment
law vs. various things I often see in employment contracts are one good
example.

The better question, I think, is whether click-through or shrink-wrap
licenses are enforceable, as binding contracts, in the sense of whether,
in the absence of a signatory, the mere act of openning the package can
really constitute agreement. The SPA, M$, etc. would all like for that
to be the case.

A few references:

  http://www.ucitaonline.com/ucita.html
  http://www.law.upenn.edu/bll/ulc/ucita/ucitaFinal00.htm
  "Both UCITA and Article 2 are based upon the principle of freedom of
contract"

Various other comments in the prefatory note regarding wide disparity of
law and court rulings.

  http://www.educause.edu/issues/dmca.html

Perhaps issues such as these are part of the reason for M$ moving toward
subscription-based software? Dunno, the subscription thing would seem to
be driven more from a guaranteed revenue stream mentality, than
copyright concerns.

OK, my brain hurts now. TTFN.
jed
-- 
Everyone takes the limits of his own vision for the limits of the world.
 - Arthur Schopenhauer