Re: DVD legal maneuvers

[daw@cs.berkeley.edu (David Wagner)]

In article <20000104234004.3110.qmail@nym.alias.net>,
lcs Mixmaster Remailer  <mix@anon.lcs.mit.edu> wrote:
> It should be clear from the context that this refers to someone who
> believes that he has the inalienable right to reverse engineer any
> software, even if he has explicitly agreed to a condition that it not be
> reverse engineered.

Ahh, ok, I see I misunderstood your argument.
I'm sorry for any confusion I may have caused.

I agree, it seems like one may make a much more persuasive moral case
against reverse engineering if the reverse engineer has agreed to be
bound by a contract that prohibits reverse engineering.

I don't think I'm entirely convinced of your position yet -- after all,
there is plenty of precedent where contractual clauses are not considered
binding, even if they were agreed to (e.g., where one of the parties is
a minor; and other cases where society has decided that allowing certain
types of agreements is not in society's best interests), and this seems
like a potentially subtle area of law with ramifications that I don't
understand -- but I agree that your position doesn't seem unreasonable.
Sorry for the earlier strident replies.

> Of course if there was no such contract and no such agreement, then the
> issue does not arise.

Right.

> Two pieces of evidence:  First, apparently the Xing software does, in
> its normal installation, offer the license agreement.  This is where the
> anti-reverse-engineering provision would be located.  Since this is the
> normal case on install, the initial presumption is that this would have
> been displayed to the reverse engineer.

Note there is a very important difference between `displaying' Xing's
request not to reverse engineer, and between the reverse engineer explicitly
*agreeing* not to undertake any reverse engineering efforts.  You can show
me any (proposed) contract you like, but just because I've seen it doesn't
mean I've agreed to be bound by it.

I see how your above observation provides evidence that the reverse engineer
might be aware that Xing would prefer they not do any reverse engineering,
but I don't see how it provides evidence that the reverse engineer agreed
not to undertake reverse engineering.  It is the latter that is relevant here.

> Second, no one involved with the effort has made any claims not to have
> seen the license agreement.

Again, asking whether the reverse engineer has `seen' the license agreement
proposed by Xing is irrelevant -- if we want to analyze this as a contractual
agreement, the relevant question is: Has the reverse engineer *agreed* to
abide by this (proposed) license?

Right?