Re: Copyrights, Contracts, Patents, and Trade Secrets. (fwd)

[Jim Choate <ravage@ssz.com>]

----- Forwarded message from Sunder -----

Date: Wed, 05 Jan 2000 18:02:29 -0500
From: Sunder <sunder@sunder.net>
Subject: CDR: Re: Copyrights, Contracts, Patents, and Trade Secrets.

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.

[ Works fine for me. Is that a job offer? ]

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???

[ No, I'm having fun counting how many inane "stupid, the year isn't '100'"
  emails I get. I'm at about 145, well I guess 146 now. ]

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.

[ Did you tell the clerk that? Did you or they discuss an alternate license
  agreement? Did you simply refuse to buy it when told there were no other
  agreements available? I doubt it. This actualy would put you at fault in
  a contract case I suspect. Simply being onnery isn't a defence. ]

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

[ If it violates the copyright. I could take a book and transcribe it in
  reverse for example and then claim I wrote it...;) I would also direct you
  to a growing literature in 'clean room' software design. ]

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.

[ I didn't say there was any law that *said anything*. You've got to watch
  those blipverts they're killer on your attention span. I *asked* the
  question if anyone had ever tried to use a copyright on some aspect of
  IP as embodied in an automotive engine. It might very well be worth
  while to understad why those cases failed.

  In addition I'm not sure patent law necessarily applies to the specific
  components of the engine. If I take a Fnord and a Chicky engine and
  compare them I find a standard reciprocating 4-stroke engine. Both
  probably use rocker - cam (perhaps even pushrod) design for the
  aspiration of the engine. Both will probably take oil pressure off an
  excentric on the camshaft or crankshaft.

  Patent law should protect the gross aspects of the design, it isn't
  intended to protect somebody else from making a push rod that just
  happens to be the same dimensions as yours. The question under patent
  law as I understand it is whether you should even be making the pushrods.

  But what if I come up with the nifty idea that I should make all the
  intake tubes the same length. Now this is not a significant enough
  change under patent law to issue a new patent I suspect. So I'm
  left with issueing a copyright on the specific design using equal
  length tubes. Whether you happen to have a license to even be making
  intake manifolds is moot to how long your specific design happens to be.

  I'm not sure that basing one's trademark on the length of the intake
  tubes would keep others from making them equal length, only advertising
  them as such. I really suspect that an idea such as 'equal length' is
  too broad for a succesful defence. But trademark law is very quircky. ]

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.

[ But you didn't 'not respond', you gave them money (if you out ran the
  security guard that's another issue). That act carries an implicit 
  agreement with the agent.

  But actualy, the fact that you sent the egg ahead of my agreement is
  enough to break it (you didn't specify a time in reference to you wait to
  send me the egg so I can assume it is immediately). Now if the question was 
  whether the contract would be valid if I sent you a note that said "I'm 
  going to send you something if you send me $5". I then send you the $5 and 
  upon receipt you send me the egg. I'd say that was a valid contract. So 
  purchasing the software with hidden license is like buying the secret egg. ]

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???

[ Extortion? Not hardly. The security guard threatening to beat your ass if
  you don't buy that software? That pimpley faced tech behind the counter
  eyeing the screwdrivers a little too excitedly for your taste? ]

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.

[ They will refund for equal credit most likely, which is fair. The reason
   stores don't accept straight refunds is that everybody returned all the
   software they bought. Not only did the game company lose a sale but the 
   store did also. This way only the software vendor carries the weight of
   piracy. ]

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.

[ The store is only a agent of the publisher or other right holder by
  definition of being able to sell it legaly. If you don't have that
  license it's straight piracy. So yes, in a twisted thread of contracted
  and deligated authority you are in fact acting with the rights holder,
  even if that rights holder represents a lot(!) of other agents at the
  same time.

  Nobody said anything about this being the only contract or that it in
  any way prevented other contracts. Moot point. ]

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.

[ It's actualy a couple of them taking in parallel. I sent a listing of the
  step by step train of thought out earlier today. The steps are directly
  correlated to the URL's I sent out last week. ]

> [ 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:

[ When you took the box and receipt, and gave them the money. Nobody is
  charging you to open that mail. ]

"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."  

[ But you haven't offered me a chance to accept or not, you can't
  automaticaly sign my name any more than the store can rip the money
  out of your wallet by force. VERY bad example. ]

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.  

[ But you can see it, ask the vendor or agent to demo the install. If they
  won't then don't buy from them.

  It's not the same thing at all. You're are pre-emptoraly acting without
  any action on my part. The store is not automaticaly withdrawing
  money out of your wallet on entry or by force any time thereafter. It's
  not magicaly showing up on your doorstep with a concommitent withdrawal
  from your checking account. ]

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 you tell the rights holder of that software that? Then you broke the
  contract. You acted with knowing intent to defraud I suspect. ]

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

[ Your dog isn't considered a valid agent in contract law, and no you can't
  without a unlimited license and I don't believe the IP agent agreed to
  that. ]

> 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?

[ Because contract law is about contracts: making, breaking, etc.

  Copyright law is about who may write a contract with reference to
  particular IP and how they may pass it on. ]

Copyright are enforced whether or not I agree to them.  Contracts are only
enforceable if I explicitly agree to their terms.  Two separate beasts.

[ No, if you disagree either Open Source it or put it in the public domain
  or develop your own personal twisted IP licensing agreement. Copyright
  only says who may make the contract if one is to be made. It says that
  you as the creator get to decide what happens to it. Copyright law
  doesn't apply to you as a consumer of IP until you agree to abide by
  a legal contract. No contract, no legal access. You aren't proposing
  that it's ok to stroll into your neighbors living room some Saturday
  afternoon and steal their property is ok are you? ]

>   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???

[ The contract is usualy on the fly leaf. Says stuff about the book is
  not to be copied, etc. without permission (i.e. license). You're actualy
  breaking the law of recognizing the rightful owner of property. ]

>   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?

[ The money you paid. ]

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

[ And only you are claiming such. ]

----- End of forwarded message from Sunder -----

    ____________________________________________________________________

            The future is downloading. Can you hear the impact?

                                        O[rphan] D[rift>]
                                        Cyber Positive

       The Armadillo Group       ,::////;::-.          James Choate
       Austin, Tx               /:'///// ``::>/|/      ravage@ssz.com
       www.ssz.com            .',  ||||    `/( e\      512-451-7087
                           -====~~mm-'`-```-mm --'-
    --------------------------------------------------------------------