Re: Copyrights, Contracts, Patents, and Trade Secrets.

[Sunder <sunder@sunder.net>]

Jim Choate wrote:
> 
> ----- Forwarded message from Sunder -----
> 
> [ When the exchange of goods/services is finalized, most likely when they
>   take the money and you get the box and the receipt. When the box is
>   considered in your possession you are bound. Whether it is installed
>   or not is irrelevant.
> 
>   One may buy the rights or privilige of use for just about anything, but
>   that doesn't mean you have to actualy use it. ]

Jim, three things.

1. Get a better email program.  One that does quoting properly.  It's hard to
figure out what you wrote when replying to you.

2. Fix your dates.  They're showing up as January 4, 100 or 12/31/69.  What the
F? Haven't you gotten a Y2K complaint mailer???

3. Quit ignoring the obvious:

Check: http://lcweb.loc.gov/copyright/title17/  Go and search this all you
want.  Until you can find the clause in there that says something to the effect
"Users of copyrighted software automatically agree to any license enclosed
within the box" I will not agree.

Copyright law has *NOTHING* to do with reverse engineering.   

Far as I know there are only three methods to protect intellectual property:

1. Patents on machines that perform processes.
2. Copyright on literary works (including software)
3. Trade Secrets.

Yes, I could mention Trade and Service Marks as a fourth, but they don't
protect intellectual property, they protect reputations, not intellectual
property.

Far as I know there's nothing anywhere that says you can't reverse engineer
engines.  However if you try to implement what someone else has done, you're
likely violating a patent.

In terms of contract laws, non-action is not acceptance.  That is if I mail you
a letter that says "Unless you tell me otherwise, I will send you one broken
chicken egg for which you will pay me $50" - that's not a binding if you don't
respond.

Clue: Not responding to that offer doesn't mean you've agreed to my contract.

So, you tell me how it is that I have agreed to abide by ANY license that was
hidden and enclosed in a closed box when I haven't yet read, but paid for? 
That's not a license, that's more like extortion!  I never had the free will to
decide whether or not I agreed to the license!  How is it possible that such a
thing is consensual or even binding???

Mind you, before I get to install it, I have already paid my money and got the
box of crapware, and got the receipt to prove it.  As a matter of fact, as soon
as I open the box, I cannot return it for a refund as per 99% of software
stores out there.

My purchase did not at any point signify a contract with a publisher.  With the
store yes, I agreed to pay $100 + 8.25% NYS sales taxes for MotherFucker Pro
V2.3, and I agreed that I may return it unopened within 14 days, but once I
break the seal on the box I cannot return it.  If I used a credit card, there
are two more contracts involved: 1. Between me and Visa.  2. Between the store
and Visa.

But at no point at all do I have a contract with the publisher.  Now if I'm a
nice guy, I may VOLUNTARILY decide honor the publisher request at a license,
but I do not have to.  No law binds me to do so.  No contract binds me to do
so, as I have not necessarily agreed to any.  

If you're about to say Copyright law is what binds me to honor the
shrinkwrap/installer license, prove it!  Go and search the site I gave you an
url to and quote the exact paragraph word for word that says exactly that I'm
bound by shrinkwrap/installer licenses because of COPYRIGHT law.

> [ No, actualy you didn't in the same context I used the example. The
>   installer/shrink-wrap license come into play the moment your right to
>   install it becomes valid.

Um, and when is that?  How is it that it automatically becomes binding if I
disagree?  Ripping open an envelope or reading a CD is not acceptance of a
contract any more than if I were to make this offer to you:

"Jim, by your receiving any email I have sent to anyone (including specifically
any Cypherpunks Distributed Remailer system) in the past or will send in the
future, you hereby automatically agree to pay me $50 for each response."  

You must admit, by your notion, if I am bound to agree to a license that I
cannot see until I open the box, then you are bound by the above, as this email
is just such a package, and you therefore must send me $50 for each and every
email I send you.  

You can't have it both ways.  If the shrink wrap licenses are binding sight
unseen upon reception of the package enclosing them, then so is your reception
of this message containing the above contract.

I highly doubt that ANY of this would hold up in any court, or that you'd send
me $50 for each message you receive from me.
 
>  [ Whether you actualy express that right is irrelevant to your obligation
>   to honor it. ]

What do you mean, whether I express that right?  Do you mean exercise that
right?  My right is to read the disk/CD and manuals at will, regardless of any
wrapper around it or any text file named "LICENSE".  Doing so still does not
indicate acceptance of a shrinkwrap/installer license.  Hell, I can get my dog
to bite open the envelope and once opened, I can use the software.  At that
point, I didn't open the envelope, my dog did.  

Did my dog agree to the license?  No.  Neither did I, but I can still legally
read the media and do as I will.

> I have never stated that fair use was giving away copies of the software.  I
> have stated that the copyright on the software and the shrinkwrap/installer
> licenses are two separate beasts and that one does not make the other valid.
> Further I stated that I don't have to agree to said license and can legally
> still read the CD, even without installing it, and use the software.
> 
> [ They are not seperate beasts, they are different views of the same beast.
>   So much for your off color joke of animal law.

In what ways are they the same animal again?  Copyright law is US Code Title
17.  Contract law is US Code Title 41 (Public Contracts) see
http://www.law.cornell.edu/topics/contracts.html.

Since when is copyright law a different view of contract law?

Copyright are enforced whether or not I agree to them.  Contracts are only
enforceable if I explicitly agree to their terms.  Two separate beasts.
 
>   Copyright law stipulates who may make the contract legaly, that's it.
>   Nothing magical or hard to understand there.

What contract would that be?  Where's the contract with the publisher when I
buy a book?  There isn't need for one, because if I violate copyright law, I'm
breaking a federal law, not an agreement with the publisher. 

What are you talking about Jim???
 
>   What the contract actualy says is a consensual agreement that you'd be
>   a party to at time of purchase. That contract is controlled by contract
>   law, of which copyright is a sub-set. ]

No it doesn't, because until I opened the box and popped in the CD, I didn't
EVEN see the contract.  But at that point, I've already paid my money and
bought the package.

So where's the consensual agreement there?

Copyrights are not patents are not trade secrets are not contract laws, and
vice versa in all permutations!


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