Jim Henderson wrote:
> On Thu, 04 Jun 2009 15:21:20 -0400, Jeremy \"UncleHoot\" Praay wrote:
> 
>> Nevertheless, DMCA aside, it has
>> never been illegal to do anything you want to any copyrighted work,
> 
> Any copyrighted work that you purchase a copy of.  That's why software 
> companies tend to not sell you the software, but a license to use the 
> software.  It's my understanding that the licensing agreement is intended 
> to be what it is you are purchasing, the media included notwithstanding.

But there are various limitations on how you can enforce such a thing. For 
example, say you buy a game, open the CD, put it in your drive, install it, 
and then it asks you if you agree to the license. Will the game store take 
that back if you didn't accept the license at that point?  If not, you 
bought it under copyright.

The box doesn't say they're selling you a license. It says they're selling 
you a copy of the game. If you get it home and find you only bought a 
license, you could probably claim bait-and-switch. :-) Plus, it's still the 
case that a license can't take away rights granted to you by copyright law. 
That's exactly what the Copywrite v Prolock case was about.


Both of these facts have come up in various court cases, and in each case 
the court managed to find some way of not addressing the fundamental 
problem. :-)

-- 
   Darren New, San Diego CA, USA (PST)
   There's no CD like OCD, there's no CD I knoooow!

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On Thu, 04 Jun 2009 13:20:05 -0700, Darren New wrote:

> Jim Henderson wrote:
>> Are you?
> 
> Pretty sure. IANAL.

It would be interesting to see that play out in court.

>>  I've not heard that one before, I would think that might open
>> the person making the modifications up to being prosecuted under DMCA.
> 
> It depends on whether it was done to enable access to the work or to
> enable copying of the work, I think. IANAL. :-)

Possibly, but I think DMCA still trumps it.  I'm not saying that's right, 
but it seems that it would, though DMCA does include a specific provision 
for accessibility IIRC.

>>> It's a global market. People have to learn to suck it up.
>> 
>> That's why these days we don't "buy" products, we "license" them.  The
>> ownership stays with the seller and any use that violates the terms of
>> the license voids the license and your right to use the product.
> 
> This is also incorrect. Copywrite v. Prolock showed that federal
> copyright laws override state licensing laws, at least in the USA. If
> your product is copyrighted, you can't use a contract to override the
> fair use rights.

Well, yes, federal laws override state licensing laws, but it would be 
difficult to show that cracking a program hard-coded to require Windows 
XP to run on Win2K is "fair use" of the work.  Again, would be 
interesting to see that actually tried, because DMCA explicitly provides 
provisions for preventing the circumvention of technological means used 
to protect intellectual property.

That's why decss (and its derivatives) and things like ConvertLIT (an e-
book format converter to convert Microsoft's .lit format to other e-book 
formats while stripping the license enforcement portions from the file) 
are considered to technically be illegal in the US.

But that's never been challenged in court.

>> I disagree with this model very strongly.  The laws in Germany prohibit
>> this type of license - if you pay for something, you bought it, and the
>> vendor can't restrict you from doing things to what you bought.  So I'm
>> told by people who live there, anyways.
> 
> Same here. People just don't believe it, tho. Not because the laws are
> written that way, but because federal copyright overrides state
> licenses.

Yes, but I think a license agreement on software these days isn't a state 
license.  In the Prolock case, if the license was intended to be enforced 
using state licensing laws rather than federal licensing/intellectual 
property laws, then it was a very poorly designed license indeed, because 
it would require that the license be written to be enforceable in every 
locality.

I've always thought that the whole idea of clickwrap/shrinkwrap licenses 
was legally dubious in any event.

> I haven't studied the DMCA enough to know what's going on there, but
> it's still going to override licenses.

Well, yes, except that the DMCA does provide software developers with 
something that is enforceable to prevent illegal copying.

One of the problems with the fair use doctrine (as I understand it) is 
that it's not really codified as to what constitutes fair use.  For 
example, in a video production, does 30 seconds constitute fair use?  2 
minutes?  20 minutes?  There's no real legal definition for what fair use 
is, it just seems to be a case of "I'll know a violation of fair use when 
I see it", which isn't a legal definition by any stretch.  The law tends 
to be very specific, sometimes overly so.

Jim

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On Thu, 04 Jun 2009 15:52:40 -0700, Darren New wrote:

> Both of these facts have come up in various court cases, and in each
> case the court managed to find some way of not addressing the
> fundamental problem. :-)

That's ultimately the problem - the courts have avoided coming to a 
decision on it.

Jim

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Jim Henderson wrote:
> Are you talking about Vault v. Quaid Software Ltd?  (Vault made software 
> called Prolock that was used to provide copy protection of computer 
> software)

That's the case I'm thinking of, yes.

> But the fifth Circuit Cort of Appeals did hold that the license 
> agreement's provisions were unenforceable because federal copyright law 
> pre-empted the Louisiana License Act.

Right.

> That would seem to set a precedent that federal law trumps state law; 
> DMCA, being a federal law, prohibits reverse engineering, and whether you 
> or I or anyone likes the DMCA, it is a current law on the books that 
> specifically prohibits circumventing technological measures put in place 
> to prevent illegal copies from being made.

Right. That's why I said "DMCA notwithstanding".

"Illegal copies." Now, is it OK to circumvent to make legal copies? That's 
what I was trying to say before - I think there's specifically language in 
the DMCA to allow circumvention of necessary to use the material as intended.

-- 
   Darren New, San Diego CA, USA (PST)
   There's no CD like OCD, there's no CD I knoooow!

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On Thu, 04 Jun 2009 15:52:40 -0700, Darren New wrote:

> But there are various limitations on how you can enforce such a thing.
> For example, say you buy a game, open the CD, put it in your drive,
> install it, and then it asks you if you agree to the license. Will the
> game store take that back if you didn't accept the license at that
> point?  If not, you bought it under copyright.
> 
> The box doesn't say they're selling you a license. It says they're
> selling you a copy of the game. If you get it home and find you only
> bought a license, you could probably claim bait-and-switch.  Plus, it's
> still the case that a license can't take away rights granted to you by
> copyright law. That's exactly what the Copywrite v Prolock case was
> about.

Of course, then you'd have a case to be made against the retailer as 
well, that they should allow you to return the game if you can prove you 
didn't accept the license.

But at the same time, the license can't take away rights granted under 
copyright law, sure, but that's what the software companies are trying to 
do - prevent anyone from getting rights through copyright law by not 
selling the software to you, but rather selling you a license to use the 
software.  Copyright then applies to the license rather than the software.

At the time the Prolock case was heard, this type of licensing 
arrangement wasn't very common, and you actually did purchase a copy of 
the software rather than a license to use the software.  That's what the 
software companies seem to me to be trying to do with the new licensing 
of software, to work around the Prolock ruling by saying "well, you 
didn't buy the software, you bought a license to use it.  It's like a 
rental agreement."

And with a rental agreement, the landlord can kick the tenant out if the 
landlord determines that the tenant violated the rules of occupation 
(like smoking in a property that's legally designated as a non-smoking 
property by contract).

Jim

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Jim Henderson wrote:
> Possibly, but I think DMCA still trumps it.  I'm not saying that's right, 
> but it seems that it would, though DMCA does include a specific provision 
> for accessibility IIRC.

Right. I'm not going to argue it. I'm just going to say that given the 
protection isn't absolute, it seems reasonable someone could make an 
argument that normally using a program you just bought, even if the vendor 
didn't expect you to use it that way, might pass muster.

> Well, yes, federal laws override state licensing laws, but it would be 
> difficult to show that cracking a program hard-coded to require Windows 
> XP to run on Win2K is "fair use" of the work.

I don't know. You bought it. You're cracking your own copy. Etc.  You 
haven't done anything to reduce the protection of the software itself.

> That's why decss (and its derivatives) and things like ConvertLIT (an e-
> book format converter to convert Microsoft's .lit format to other e-book 
> formats while stripping the license enforcement portions from the file) 
> are considered to technically be illegal in the US.

I think they're illegal to distribute, because they can be used to 
circumvent the copy protection on the files. I'm not so sure they're illegal 
to use on media you yourself bought a copy of.

> But that's never been challenged in court.

Exactly. It's all grey here.

> Yes, but I think a license agreement on software these days isn't a state 
> license.  

Sure it is. Federal law doesn't have contract law enforcement in it. 
Contracts are state laws.

> In the Prolock case, if the license was intended to be enforced 
> using state licensing laws rather than federal licensing/intellectual 
> property laws, then it was a very poorly designed license indeed, because 
> it would require that the license be written to be enforceable in every 
> locality.

Yep. That's why licenses always have a choice of venue clause.

> I've always thought that the whole idea of clickwrap/shrinkwrap licenses 
> was legally dubious in any event.

That too.

>> I haven't studied the DMCA enough to know what's going on there, but
>> it's still going to override licenses.
> 
> Well, yes, except that the DMCA does provide software developers with 
> something that is enforceable to prevent illegal copying.

Again, "illegal" copying. First you have to determine if making the copy was 
illegal. *Then* you have a case. :-)

> One of the problems with the fair use doctrine (as I understand it) is 
> that it's not really codified as to what constitutes fair use.  For 
> example, in a video production, does 30 seconds constitute fair use?  2 
> minutes?  20 minutes?  There's no real legal definition for what fair use 
> is, it just seems to be a case of "I'll know a violation of fair use when 
> I see it", which isn't a legal definition by any stretch.  The law tends 
> to be very specific, sometimes overly so.

Yep. Agreed. I suspect a lot of content producers want it that way, too.

-- 
   Darren New, San Diego CA, USA (PST)
   There's no CD like OCD, there's no CD I knoooow!

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On Thu, 04 Jun 2009 16:03:50 -0700, Darren New wrote:

> Right. That's why I said "DMCA notwithstanding".

Problem is, we can't choose to ignore DMCA.  I'm not sure I follow you 
here.

> "Illegal copies." Now, is it OK to circumvent to make legal copies?
> That's what I was trying to say before - I think there's specifically
> language in the DMCA to allow circumvention of necessary to use the
> material as intended.

But in the case you put forth, use of a program that is restricted in 
platform through technological means is not use of the program "as 
intended".  I guess part of the question is "intended by whom?".

Taking Jeremy's suggested idea, I purchase a program that's developed to 
run on the Mac, but I don't have a Mac.  If my intention is the important 
one and my intention is to run it on a Linux-based PC, would it be legal 
for me to reverse-engineer the program in order to recompile it to run on 
Linux?  I would seriously doubt that, and I think a challenge on that 
basis would ultimately fail in court.

Jim

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On Thu, 04 Jun 2009 16:09:49 -0700, Darren New wrote:

>> Well, yes, federal laws override state licensing laws, but it would be
>> difficult to show that cracking a program hard-coded to require Windows
>> XP to run on Win2K is "fair use" of the work.
> 
> I don't know. You bought it. You're cracking your own copy. Etc.  You
> haven't done anything to reduce the protection of the software itself.

That's ultimately the question though - did you buy it, or did you buy a 
license that says you can use it?  US law is unclear about this (unlike 
German law, which I understand isn't - you bought it, period.  It's 
apparently not legal to even do shrinkwrap licensing in Germany, and it's 
been tried in court definitively there from what I understand).

>> That's why decss (and its derivatives) and things like ConvertLIT (an
>> e- book format converter to convert Microsoft's .lit format to other
>> e-book formats while stripping the license enforcement portions from
>> the file) are considered to technically be illegal in the US.
> 
> I think they're illegal to distribute, because they can be used to
> circumvent the copy protection on the files. I'm not so sure they're
> illegal to use on media you yourself bought a copy of.

Could be.  Of course, if it's illegal to distribute the software, that 
makes it kinda hard to obtain legally to use on media you legally own.

Of course, part of the way of working around that is to distribute as 
source, again something that's never been challenged in court:

>> But that's never been challenged in court.
> 
> Exactly. It's all grey here.

Yup.

>> Yes, but I think a license agreement on software these days isn't a
>> state license.
> 
> Sure it is. Federal law doesn't have contract law enforcement in it.
> Contracts are state laws.

I'm getting out of my depth here, but it seems to me that federal law 
would have *something* about contracts in it.

>> In the Prolock case, if the license was intended to be enforced using
>> state licensing laws rather than federal licensing/intellectual
>> property laws, then it was a very poorly designed license indeed,
>> because it would require that the license be written to be enforceable
>> in every locality.
> 
> Yep. That's why licenses always have a choice of venue clause.

Makes sense to me.

>>> I haven't studied the DMCA enough to know what's going on there, but
>>> it's still going to override licenses.
>> 
>> Well, yes, except that the DMCA does provide software developers with
>> something that is enforceable to prevent illegal copying.
> 
> Again, "illegal" copying. First you have to determine if making the copy
> was illegal. *Then* you have a case. :-)

True, that makes sense to me.  I think it depends a lot on whether you 
can get *any* copying defined as being illegal under the terms of the 
license, but that brings us back to the license-as-state-law-only point 
of the discussion, and my head is starting to hurt. :-)

>> One of the problems with the fair use doctrine (as I understand it) is
>> that it's not really codified as to what constitutes fair use.  For
>> example, in a video production, does 30 seconds constitute fair use?  2
>> minutes?  20 minutes?  There's no real legal definition for what fair
>> use is, it just seems to be a case of "I'll know a violation of fair
>> use when I see it", which isn't a legal definition by any stretch.  The
>> law tends to be very specific, sometimes overly so.
> 
> Yep. Agreed. I suspect a lot of content producers want it that way, too.

Yes, it does seem that way.

Jim

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Jim Henderson wrote:
> That's ultimately the question though - did you buy it, or did you buy a 
> license that says you can use it?

Yes. And does the license specifically deny me the ability to patch the 
software to run it on a different OS?   If you're going to argue you only 
licensed it to me and that copyright fair use shouldn't apply, you don't get 
to argue that it's copyrighted too. :-)  *Everything* has to be in the license.

> Could be.  Of course, if it's illegal to distribute the software, that 
> makes it kinda hard to obtain legally to use on media you legally own.

Not if you wrote it. Also, it depends on what's "software". Remember the 
whole PGP-printed-in-a-book argument? DeCSS printed on t-shirts?

> I'm getting out of my depth here, but it seems to me that federal law 
> would have *something* about contracts in it.

I don't think the Constitution says anything about intrastate contracts. Of 
course, not being in the Constitution never stopped anyone before. At least 
not lately.

-- 
   Darren New, San Diego CA, USA (PST)
   There's no CD like OCD, there's no CD I knoooow!

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Jim Henderson wrote:
> On Thu, 04 Jun 2009 16:03:50 -0700, Darren New wrote:
> 
>> Right. That's why I said "DMCA notwithstanding".
> 
> Problem is, we can't choose to ignore DMCA.  I'm not sure I follow you 
> here.

I meant my opinion/analysis was "DMCA notwithstanding."  Not that the actual 
law is. I.e., I don't know enough about DMCA to say how it might have 
changed the landscape, so if you ignore the DMCA, then what I said is valid. :-)

> But in the case you put forth, use of a program that is restricted in 
> platform through technological means is not use of the program "as 
> intended".  I guess part of the question is "intended by whom?".

True, true. Again, hard to say.

> Taking Jeremy's suggested idea, I purchase a program that's developed to 
> run on the Mac, but I don't have a Mac.  If my intention is the important 
> one and my intention is to run it on a Linux-based PC, would it be legal 
> for me to reverse-engineer the program in order to recompile it to run on 
> Linux?  I would seriously doubt that, and I think a challenge on that 
> basis would ultimately fail in court.

Sure. But this is the argument made by DeCSS authors: Nobody had a license 
to play the legally-purchased DVD on a Linux machine, so they circumvented 
the protection to make that possible. Of course, distributing a program that 
not only played the disk but made it possible to copy it was the bigger 
problem, I think. Makes it hard to separate out the different concerns in 
the court cases.

-- 
   Darren New, San Diego CA, USA (PST)
   There's no CD like OCD, there's no CD I knoooow!

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