Re: Re: DVD legal maneuvers (decss and the lawyers) (fwd)

[Sunder <sunder@sunder.net>]

Jim Choate wrote:
> 
> ----- Forwarded message from Sunder -----
> 
> Date: Tue, 04 Jan 2000 16:21:24 -0500
> From: Sunder <sunder@sunder.net>
> Subject: Re: CDR: Re: DVD legal maneuvers (decss and the lawyers) (fwd)
> 
> But it really isn't a binding contract anyway since once you've purchased the
> software, the legal protection that copyright law provides does not cover these
> license agreements.  You've paid your money, obtained the media, and now can
> use the media as you see fit.
> 
> How you use it cannot be enforced on you by copyright.

First off I'm not a copyright lawyer (or any lawyer of any kind) nor do I play
one on TV.

You miss the point, there are two separate issues.  One is copyright, the other
is the shrinkwrap/installer license.  

I say that you can legally abide by copyright law, and that fair use would be
reading and using the software as you see fit.  Further that the
shrinkwrap/installer license doesn't come into play at all since you never have
to agree to it.

Why is it that books (or audio CD's or VHS movies) do not come with shrinkwrap
licenses that say "you must always read this book (cd, vhs tape) from page 1
sequentially to the end, you cannot skip around, you cannot reverse engineer an
outline of this story to write your own with the same theme, only one person
may read this book (this CD/VHS tape, may only be played in a single CD player/
VCR), etc..."?  

Because they aren't enforceable, further, it wouldn't be binding, and has
NOTHING to do with copyright law, yes?  

If so, why do you believe that software is any different?  Just because it's
fashionable to include such licenses in software doesn't mean that they're
legally binding.
 
> [ Nobody said it was, it is enforced by the licensing agreement you
>   purchased when you agreed to abide by the terms of the copyright holder
>   when you exchanged your goods/service for their goods/service per
>   standard contract law. 

Where?  I did not agree to any contract or licensing agreement.  I merely
purchased a box containing a CD and some bits of dead tree off a shelf.  The
contract is between me and the store that I purchased it from, and this
contract has to do with the price of the thing I bought and the ability to
exchange it or return it under certain conditions.  

Such an implied contract by means of the sale says nothing about the
shrinkwrap/installer license, or for that matter, specifically about reverse
engineering it, disassembling it, or reading in a way not blessed by it's
publisher.  

Again, where did I ever agree to any shrinkwrap/installer license by purchasing
the box off the shelf?

Merely opening a box or popping in a CD and reading it does not constitute
consent to ANY contract.  My contract with the software store is only in
regards to the purchase and possible return of it, and thus is separate from my
use of the product.  

If I wished to use the paper documentation to wipe my ass on after a rather
rich dump, more power to me. Never mind that the publisher and author of the
manuals would be unhappy, or that my ass would be sore from using harsh paper,
but there is NOTHING any of them could do to prevent me from using their
manuals for toilet paper, or burning them for heat, etc.

Nor is there a law against my buying out all copies of a book that I find
offensive and burning them all, or taking a big huge crap on them.  That too is
freedom of speech.  Again, USE is separate from purchase and copyright law.  In
either case, the author and the stores made their money on the copies I have
purchased from them.

As long as I paid for the CD, Book, VHS tape, or software, my use of it
(barring duplication as per copyright law) is my business.

While such shrinkwrap licenses may state "use of this product consitutes
consent to these terms..." it doesn't actually hold water, and so far as far as
I know these have not been tested in court.  

Any real lawyer care to provide input here?

>   Simply because you have the desired goods and
>   services doesn't abrogate the agreement you made with the seller. 

What agreement?  I say I never agreed to anything other than paying for a box
off a shelf.  Again, my agreement with the seller/store has nothing to do with
ANY agreement with the publisher or author of said object.

>   What
>   copyright does is say WHO may write a binding contract regarding the
>   distibution or use of that good/service as well as some VERY broad rules
>   of what that contract may cover. 

No, copyright law simply states that the owner of a work should get paid for it
and thus they are able to control how and to whom copies of their work get
distributed to.  It says NOTHING about use with the exception of duplication,
leasing and loaning.

It prevents the purchaser from reselling it (unless all other copies of it are
destroyed - thus transfering ownership) or more exactly reselling duplicate
copies of it, giving copies of it away, etc.  It's about the illegal 
distribution of copies of a work, not it's use by the purchaser.

Nowhere does it state that any license provided with the software is binding. 
Or anything else about such licensing.

>   In this case it is the holder of the
>   copyright (vis a vis the seller acting as agent) and not the purchaser of
>   the copyrighted goods/services. Copyright law doesn't over-ride the
>   contract law option the purchaser has of offering an alternate contract,
>   though it does automaticaly make the original bid (and subsequent license
>   agreement) null and void at the option of the seller.

Again, what I am stating is my belief that such shrinkwrap or installer time
licenses are not enforceable since purchasing the media that the software (or
book, or music, or movie) is distributed on does not imply consent to a further
contract.

Once you pay your money and take the goods home, it's yours.  Copyright law
cannot tell you that you can't read this CD except to install it, nor that you
cannot take the bits off this CD and transform them into something else, nor
edit them.

Should you wish to, there is nothing to prevent you from making copies of audio
CD's to tape and editing them to your pleasure (again, provided you neither
sell, nor redistribute these copies).  

People do this all the time.  How many people do you know that take CD's and
copy only the tracks they like for their personal use?  Or copy their CD's to
tape so they can play them in their car or walkman, MP3 player, etc.

Is that copyright infrigement or fair use?  IMHO, it's fair use.

So what I'm asking you is where do you get this stuff that you automatically
have to agree to some shrinkwrap license once you've already PAID for the copy
of the software?

I do not see how you would be in violation of copyright law should you do
something that the shrinkwrap license prohibits.  Hell, I don't even believe
that the installer/shrinkwrap license can be legally binding.  I don't see how
it can be.
 
>   It would be perfectly legal for a store to offer Immaculate Word 2K for
>   $20 a copy. You as a potential purchaser could then counter-offer to
>   purchase it at $15. If the seller refuses you would not be able to
>   purchase that product at the old price of $20 except at the discretion
>   of the seller. Your counter bid made the old price null and void to
>   you. There is the question of whether that counter offer would then
>   legaly (not that this would be enforcable in the real world except in
>   some very wierd situations) bar the purchaser from buying from any vendor
>   (they are all acting as agents of the same seller-copyright holder after
>   all and therefore limited by their contract with the copyright holder)
>   without permission of the actual copyright holder. ]

You're missing something here.  The $20 or $15 has to do with a purchase of
something.  This is perfectly negotiable with the store.  But the store isn't
the copyright owner.  The shrink wrapped or installer license has NOTHING to do
with the above haggling.  The haggling is between the purchaser and the seller.
The author/publisher has no say in it.

Now the store may have a contract with the publisher that says "You cannot sell
Mother Fucker Pro V2.3 for less than $20 for a period of a year after its
release" but that does not affect the USE of MoFoPro by the purchaser.  It only
affects the price that MoFoPro may be sold at.

At that point, the purchaser and the publisher DO NOT have ANY contract.


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