IT Employment

Court decision clamps down on our rights to software that we 'own'

A recent decision by the 9th Circuit Court may have a chilling effect on the ability to use the software we "buy" in the US. Will the general public finally notice the legal benefits of open source software?

There was a time, not too long ago, that we could talk about "buying" software without any irony. We would go to the store or some website and pay money, and we would get installation CDs or downloads that we would say we "owned." Even with the proliferation of end user license agreements, we could still buy some software installer CD, take it home, install it on one computer, then on another when we replaced the first, then sell the CD to someone else when we did not need to use the software any longer. For a lot of us, it goes against the grain to think of paying for an installer -- especially an installer on physical media like a CD -- and still think of the installer as belonging to someone else. You bought it; it's yours. Right?

Over time, of course, we have all had to get used to the changing realities of software copyrights. Luckily, as long as we did not distribute copies, we were generally in the clear. In the United States, the legal doctrine of fair use allowed us to do things like make backup copies and reinstall on new hardware. The doctrine of first sale allowed us to resell the original installation media when we were not using the software any longer. Even as we became increasingly aware of the restrictions of copyright law and EULAs, we could treat an installation CD as if we owned it, much of the time.

Of course, the efforts of copyright industry organizations like the RIAA, MPAA, and BSA have whittled away some of the protections of the doctrine of fair use, narrowing what we are allowed to do with what we "buy" more and more as time goes by. The DMCA is probably the most famous piece of legislation to put more power into the hands of commercial copyright holders and take it out of the hands of their customers. In many cases the DMCA has had a devastating effect not only on the doctrine of fair use in practice, but also on certain types of computer science research and some software markets.

We have gotten more bad news, recently. On Friday, 10 September, three judges in the 9th Circuit Court of Appeals, covering the nine western states of the US, handed down a decision that effectively means the end of the doctrine of first sale for commercial software. Speaking of the limited monopoly power granted by copyright law to a copyright holder, the 9th Circuit decision reads:

The exclusive distribution right is limited by the first sale doctrine, an affirmative defense to copyright infringement that allows owners of copies of copyrighted works to resell those copies. The exclusive reproduction right is limited within the software context by the essential step defense, another affirmative defense to copyright infringement that is discussed further infra. Both of these affirmative defenses are unavailable to those who are only licensed to use their copies of copyrighted works.

A fair bit of a fuss is being made over the restrictions imposed by this interpretation of the applicability of the first sale doctrine. Wired offers an article that focuses quite a bit of attention on the subject: Guess What, You Don't Own That Software You Bought.

By contrast, however, the damage done to the essential step defense -- which goes well beyond simply prohibiting software "licensees" from making backup copies -- seems to get very little attention at all. The Wired article does not even mention it in passing, for instance. Perhaps the language of the law, and of this court decision, is too abstract for many reporters to immediately recognize the implications. Perhaps even technology journalists are simply not familiar enough with the way software works to recognize the effects of this ruling.

The explanation given in the 9th Circuit decision for the essential step defense reads:

Congress enacted the essential step defense to codify that a software user who is the "owner of a copy" of a copyrighted software program does not infringe by making a copy of the computer program, if the new copy is "created as an essential step in the utilization of the computer program in conjunction with a machine and . . . is used in no other manner."

In short, what this part of the ruling says is that when you pay for a piece of software that comes with a license agreement you do not even have the right to use the software if that right is not expressly provided in the license, or by implication of some other provision of the license, as long as making a copy of the copyrighted work is part of using it. In short, if this non-lawyer has read the law and the 9th Circuit Court decision properly, this would in effect mean that for some licenses, if you actually install and use the software, you could be subject to a lawsuit.

As software developers and computer scientists should be well aware, if you consider a digital copy to count as a "copy" -- and it is clear that the law regards that as a copy just as much as physical storage media or a printout counts as a copy -- this means you probably cannot legally install the software (making a copy on your hard drive) or run it (making a copy in memory) at all, without explicit permission from the copyright holder. All you can do is admire the installation CD. The time has come that users really need to start reading those license agreements with a discriminating eye. At this point, we might even need to have lawyers read the more complex EULAs for us before we start using the software, to ensure that just by installing and using it we do not subject ourselves to legal liability.

The obvious answer to this, for many people, would be to use more open source software and less proprietary, closed source software. Even there, we need to be careful, however. This ruling might have some frightening effects on nominally open source software licenses as well. Some of these licenses are so complex that there may be nooks and crannies with unintended legal effects in the terms that could be abused to sue end users.

While most open source software licensors surely would not want to do something like this, an open source license developed by a company for its own software could conceivably be intentionally designed with a legal trojan horse in it, for possible later use by the legal department, simply by being a little to specific in its provision for the right to copy the software. A license that allows the licensee to distribute copies without allowing the licensee to make those copies could constitute such a legal trojan horse. In addition, even more generally accepted licenses that might only accidentally contain such gotchas could be abused by a corporation that acquires an open source codebase -- such as Oracle's acquisition of the MySQL and OpenOffice.org codebases.

The likelihood of a license such as the GPL being abused this way seems quite remote, of course. If such an unintentional implication of these highly complex open source licenses is discovered, a modified version is sure to be distributed very quickly, and projects distributed under their terms are sure to be moved to the new version, or to another license altogether, very quickly as well. Those of us who try to stick to simpler licenses, such as the majority of copyfree licenses, would be justified in feeling especially secure about license choice, however.

The defense attorney in the 9th Circuit copyright infringement case -- Vernor v. Autodesk, Inc. -- announced his intention to seek a new hearing at the 9th Circuit Court of Appeals with a full panel of eleven judges. Even if that fails, it may be appealed further, as far as the Supreme Court. The last word may not have been spoken on this issue in court, yet. For now, though, software users and especially resellers should consider treading very carefully. If you have not read the license agreements attached to the software you use, now would be a very good time to do so.

If nothing else positive comes of this, though, at least it might serve as a good argument in favor of open source software.

About

Chad Perrin is an IT consultant, developer, and freelance professional writer. He holds both Microsoft and CompTIA certifications and is a graduate of two IT industry trade schools.

122 comments
puneet96
puneet96

i am happy PLR Private Label Rights

NexS
NexS

Would that work? We can all mask-up and march toward a better, more explosive future?

pete20r2
pete20r2

The judges is entirely justified, they are not stupid. The argument presented by these judges is an amendment to laws in my eyes. I shall explain, to do this I like to apply extreme thought experiments: say 10 people buy the RIGHTS TO USE a software for $10 each. They finish using the software and on-sell THE RIGHTS for an irrelevant amount. 20 people have now used that software for the price of 10. The producer of the software is now down $100. Suppose those 10 sell THE RIGHTS to the software again. You can see what is happening. Please note that this is of course an extreme condition and highly unlikely, but plausible for some types of software. The old doctrine of first sale was generous to consumers but unfair for software producers. It is also illegal to let someone who is not immediate family (another courtesy law) to borrow a book, they did not pay for the RIGHT to read the information contained in that book. You should in fact thank them for so many years of generosity towards consumers and also for improving the income of software producers, especially the small guys. Peter Baskovich age 16

ubducted
ubducted

Maybe this 9th Circuit thing would drive a new open source license of two simple sentences: "Do whatever the hell you want with this software. We won't sue you."

Bronte G
Bronte G

I used to "own" a program for writing programs. I know, that means a "programming language", like C++, which could be bought from Borland then, or from Microsoft. I found that there was a "new" product, which was interesting, and so I bought version 1. Later I wanted to upgrade. But I found a friend who could sell me his copy of the most recent version. He had found the product so un-user-friendly that he discarded it for that reason. I was hoping to do better. Except that licencing agreements prevented him from doing that. So, I scrapped anything to do with that language and that company's products, whatever they might be. I am one person. But why do companies, and others not do the same?

Dr_Zinj
Dr_Zinj

The Constitution works just fine for me. And interpretation is the right of all citizens, not some ex-lawyer weenie in a robe.

HAL 9000
HAL 9000

OH dam it I forgot the day of November. :^0

NickNielsen
NickNielsen

but your thoughts are neither law nor logical. Extending your reasoning from printed books to other material items leads to the absurd conclusion that you cannot legally dispose of your property–house, car, computer, books, CDs–except by destroying it. If I purchase a book or other material item (e.g. software CD) containing copyright material, I have the right of first purchase under US law and am entitled to reasonable use of such items, including the right to dispose of any such items or materials in any manner I desire, as long as I do not violate the copyright. Your position means that nothing you purchase is "yours". You have only paid for the use of it. Such a situation would place Holden, Ford, or Chrysler in a position where they could tell your neighbor "You did not purchase the car, only THE RIGHTS to use it. We say you can't sell it to that twit next door."

AnsuGisalas
AnsuGisalas

It's illegal to lend out books? No wonder the librarians whined about the PATRIOTSS law, they knew their dirty scheme was gonna go bust! Lending out books! To complete strangers!!! Now; let's make it illegal to have personal "ex libris"-stickers; it's obvious preparation for committing a crime! Lenders...*ptui* :p

apotheon
apotheon

I suppose next you'll want to keep people from reselling computers, or cars, or chairs, or dinnerware, or unused boxes of Kleenex, or goldfish, or brooms, or toaster ovens, or denim jeans, or televisions. Maybe you think we should prevent people from selling seeds produced by their houseplants, too. Where does it end?

apotheon
apotheon

Seriously, that's not quite clear enough about the legalities. It's sad but true. Some Legalese needs to be included to make it clearer to the courts, even if that would make it less clear to those of us who speak normal English instead of Legalese on a daily basis. The closest you can reasonably get to that is the vast majority of copyfree licenses. One that leaped immediately to mind as an answer to your example was the WTFPL. The PL stands for "public license"; you should be able to figure out the rest for yourself. On the other hand, the license is fairly short and an amusing read, so just click on the link. Explicit release into the public domain does the same thing as what you describe, basically, except that some countries don't recognize a legal right to release something into the public domain (absurd as that sounds), such as France.

Papa_Bill
Papa_Bill

Is the fact that although we don't *own* it when we pay for it, we sure as hell are *stuck* with it.

apotheon
apotheon

> I am one person. But why do companies, and > others not do the same? Some of us do the same. edit: I give up. I'm not using TR's broken formatting for blockquotes any longer.

Papa_Bill
Papa_Bill

Yes, the old men in robes are precisely there to interpret law. Legislators may have a specific intent in the law, but unless it's very carefully written, it's open all kinds of *misinterpretation*. Judges are elected or appointed to determine what the *word* of the law means, not its *intent*. That's why so many decisions are unpopular, because many people can misinterpret a poorly or carelessly written law. The People are responsible for electing lawmakers who can and will express there intent accurately. This is why so many laws seems incredibly lengthy.

Daitoryu
Daitoryu

"And interpretation is the right of all citizens, not some ex-lawyer weenie in a robe" Actually, no, the constitution is not to be interpreted. It says what it means and means what it says. Citizens certainly cannot interpret it. It is a static document, providing chains and limitations on and to the federal government. If something is not specifically stated in the constitution, then it is not allowed to be done by the federal government. The constitution only applies to Washington, D.C., ie "the government". It doesn't apply to citizens of the several states, as each nation state still has its own constitution. Remember, this is a union of 50 nations, called states. Just like the European Union. Each state is a sovereign nation, just like France, Germany, Italy et al of the EU. The constitution is a contract entered into by the several states for joint interests in defence, currency, commerce and peace.

mwclarke1
mwclarke1

Just becasue it is law, does not mean it hold muster to the intent of the Constitution which is to protect our rights, but also against the decleration of Independence of which gives us all our rights. many of the laws that have been enacted does not hold up to the original intent of what those documents were intended. Most of the judicial systems today goes way beyond their intended charter and many judges have become corrupted with their own biases and corporate influences and can no longer be trusted. We need a major reset of all our elected government to start over and push out all the corruption regardless of politically party association, do not re-elect the incumbents !

NexS
NexS

That wouldn't do you any good in the revolution! Turning up a day early....

HAL 9000
HAL 9000

That the Housing Industry doesn't want anyone reselling houses that they made. It's far better for them to destroy what is built and build something else. Though mind you it's a bit rough on the other people who live in that apartment Building when the first person who bought one of the apartments wants to move on. You have to destroy the entire building. ;) After all it's good for the Economy isn't it? :D The Auto Industry however would be horrified if it was necessary to destroy cars when the Original Owner gets tired of them. They wouldn't be able to dispose of their Large Parts Supply and make even more money. :0 Col

apotheon
apotheon

One of the criteria for interpretation is a judgment of the intent of both the legislators and the public to whom the legislators tried to "sell" the legislation in question. While intent is not the legal meaning of the law per se, it is definitely a proper part of the criteria by which the law is interpreted in a court of law. > This is why so many laws seems incredibly lengthy. The main reason so many laws are so incredibly lengthy is because the legislators are trying to pull a fast one on the public that elected them.

melias
melias

The Constitution DOES apply to all citizens, not just the Federal Government. And it is not a static document. It is called a "living document", as it can be modified by Amendments. Notice the capital "A". That's how important they are. Many things like Prohibition, the end of Prohibition, Women's Suffrage, (the 19th Amendment) and the right to bear arms. The impact these Amendments have made to the U.S. is nearly impossible calculate. Just ask anybody affected by the 13th Amendment. Edit for typos, cant get rid of ocument

NexS
NexS

You'll have 1/30 chance every day.

HAL 9000
HAL 9000

I would be there in the right month. And if I was late I couldn't get into trouble. :p Col

apotheon
apotheon

I rather suspect it's a matter of incompetence rather than secret, conspiratorial benevolence, though.

AnsuGisalas
AnsuGisalas

there's a rumour about that the patents office is deliberately giving out these ludicrous patents to undermine the very basis for intellectual rights. After all, there's a pain threshold somewhere, and when it's crossed, patents will lose all feasibility. Question is, who're they working for? The Discordians? TRI? Skull-and-bones-club? Hmm...

HAL 9000
HAL 9000

I wouldn't be surprised if some idiot didn't already have a Patent for that. So you may very well dip out on any income. :D After all with developments in [b]Star Trek[/b] Replicator Technology making leaps and bounds [i]Personal Fabricators[/i] may be here much sooner than any of us think. Currently the big draw back is the cost of using one of these things so I would assume initially that they will be crippled into only being capable of making simple less Energy Intensive things and then the Commercial Fabricators will be available to make the Consumer Market stuff. ;) Col

kama410
kama410

You're making me wonder about what is involved in applying for a patent. I'll bet it would work. Of course, I'd probably be long dead before a practical application was developed. Maybe I could patent the expression of energy as matter. There are practical uses for that. Or impractical, depending on your point of view.

apotheon
apotheon

It has been a long time since a man named Albert Einstein worked in a patent office.

NickNielsen
NickNielsen

I was thinking idiocy in one sphere does not excuse idiocy in another sphere, but you reminded me that, in both cases, we're dealing with the Patent & Trademark Office. Yeah, some physics engineer will probably apply for a patent on vacuum states, and get it because the science is beyond the available knowledge in the PTO. Maybe I was getting my hopes up, but I probably just forgot human nature.

apotheon
apotheon

Biochem corporations have patented human genome maps, despite "prior art". Why couldn't physics engineering corporations patent vacuum states?

NickNielsen
NickNielsen

I'm fairly certain prior art could be shown.

apotheon
apotheon

Even in a vacuum state, there is energy conforming to the cosmological constant, because of the constant spontaneous appearance and disappearance of virtual particles. That level of energy is referred to as zero point energy, or sometimes vacuum energy. Of course, it's not an arrangement of matter or energy produced by any person, so I guess it's not copyrightable. On the other hand, maybe someone can patent it, so you're not allowed to use it.

kama410
kama410

No, matter can neither be created nor destroyed, but it can be converted to energy by combining it with anti-matter. The energy released is given by the equation E=mc^2. Energy=Mass times the-speed-of-light squared. That's a he11 of a lot of energy. I've read that theoretically, particles do come into existence and 'evaporate' spontaneously, but the duration of their existence is so brief that it's pretty insignificant. Cosmology is my hobby.

AnsuGisalas
AnsuGisalas

it into a black hole then. Sure it comes back as gamma rays, but hey, what can you do?

NickNielsen
NickNielsen

I vaguely remember learning something about "matter can neither be created nor destroyed, except in very special circumstances", but I could be wrong. It might have been mass.

AnsuGisalas
AnsuGisalas

and now we have to find a way to destroy matter... damn, that's not easy. Will dropping it into a volcano suffice? Or flying it into the sun?

apotheon
apotheon

You surely can't have visitors in your homes! That would be an unauthorized "public performance" of the architect's "intellectual property"!

HAL 9000
HAL 9000

The House is the Intellectual Propriety of the Designer whoever that was and they only licensed the ability to live in that house and make use of their Intellectual Propriety for the Original Owner. Not their Spouses or children. The Agreement after all was between the Original Owner and the Designer/Builder so it's only logical that it has to be destroyed at the expense of the Estate of it's Original Owner when they are either tired of it or have died. Also reusing any of the material used in it's construction is counterproductive to Economic Growth so this all has to be destroyed to prevent further adverse Impact on the Economy. Col

AnsuGisalas
AnsuGisalas

Who will pay the demolition contractors so their backers can graft the politicians? It just has to be so that the building becomes useless before the mortgage is paid out... but enough should remain standing to require more than a farty granny passing by to push them over... a little at least. That, or there has to be stuff in there so hazardous that's it'd be a crime to just scoop it up and throw it in a landfill. Gotta keep the money circulating! Wage-earners, contractors, organized crime, "organized" government. Well... the graft-taking is pretty well organized, actually. It's hardly even illegal...

NickNielsen
NickNielsen

...than to replace generic characterless houses that fell apart before the mortgage was paid off with generic characterless houses designed to fall apart before the mortgage is paid off.

kama410
kama410

You've got it all wrong. The government wants to stimulate the economy. Those steel-hard 100-year-old timbers supporting houses built to last aren't helping. The land they sit on probably won't need another house built there for at least another hundred years. Just think of the damage that is doing to the economy! What the economy needs is more generic characterless houses designed to fall apart before the mortgage is paid off!/sarcasm

AnsuGisalas
AnsuGisalas

point would be that, once the original owners die, the house isn't available to use anymore... so like clunkers they just lie around, until someone pays government money to get them chopped up - we're still being sarcastic about "right to use"-fairytale above, remember? :p ;)

NickNielsen
NickNielsen

X-( Those old houses are [b]built[/b]. My current house was built in the 1920s or 1930s and is one of the most solidly-built things I've ever lived in. Then there's the 900-square-foot (84 m^2) addition that's just under 15 years old and is already coming apart. A program like that should address the new matchstick houses, and be named "Silver for Slabs" or "Moolah for McMansions". :D

kama410
kama410

Cash for Clunkers, Part 2: Cash for Century Homes.

kama410
kama410

One of the exceptions is Ron Paul. I've been reading his stuff for years and he has never changed his tune to comply with the latest poll results. He means what he says and what he says makes sense!

apotheon
apotheon

> After all it's Government Money so they try to get as much as possible for their favorite project,which is their belief that they need to get reelected to keep their constituents in the best possible position. The reason (excuse, really) for pulling a fast one doesn't change the fact they're pulling a fast one. > There is a very good reason that no Political Party has put up a decent person for Office recently and that is that they are scared that they will loose control. Have a look at any Elected Official in Government and tell me I'm wrong. I wouldn't disagree with that, anyway. . . . though there are occasional exceptions. Very rare exceptions, that is.

HAL 9000
HAL 9000

Don't just have their snouts in the trough they have their Hind Legs in so deeply that you can not see their curly little tails. After all it's Government Money so they try to get as much as possible for their favorite project,[i]which is their belief that they need to get reelected to keep their constituents in the best possible position.[/i] So with Finance Bills like those in the US they place Back Doors into them to extract money without the need to go back to the Parliament to get more legislation through. It gives them the Option to do as they are told is the best thing possible and you guessed it the Party tells them what that is. ;) Those Elected Politician's are not the Brightest Spark in the Pile they are just the dumbest ones who can be controlled into doing what their Party wants done. There is a very good reason that no Political Party has put up a decent person for Office recently and that is that they are scared that they will loose control. Have a look at any Elected Official in Government and tell me I'm wrong. :^0 Col

apotheon
apotheon

I don't think you've looked at much legislation. Most legislation has dozens of stupid porkbarrel riders attached to it. Expect a "bridge to nowhere" project on a finance oversight bill, or on a national security bill, or even on a change of Daylight Saving Time. These are the "pull a fast one" instances most often perpetrated in the legislature.

HAL 9000
HAL 9000

Sorry I really have to disagree with this bit [i]The main reason so many laws are so incredibly lengthy is because the legislators are trying to pull a fast one on the public that elected them.[/i] Obviously you have never had any direct dealings with the people tasked with Enacting Legislation. They are trying to do the right thing most of the time at least. The reason why Laws are so Long is because those involved with Enacting Laws are [b]Totally Incompetent.[/b] They prefer to use 500 Pages of words to get the meaning that could be covered in 3 words because they are Advised by members of the Legal Fraternity who completely confuse them. Politicians are not that bright to begin with no matter what they would have you believe and they are Baffled with Bull $h1T just about all of the time that they are in Office by Vested Interest groups who are only interested in getting their way. That is why Lobbyists are so well paid. Didn't you ever wonder why the better Lobbyists get more money than the Politicians that they deal with? I don't know if you have noticed but with any Political Party it's not in their [b]Best Interests[/b] to have Bright People in power, they much prefer Idiots who they can tell what they want and then the Idiot does it without question. For that reason alone there is no excuse for the Party Political System as it doesn't encourage the Best & Brightest but the Dimmest and Stupidest to participate. The Smart Ones stay in the Party controlling the Politicians. ;) Col

Oz_Media
Oz_Media

There are many here who feel the Constitution is and should be etched in stone, unwavering, unchanging to adhere to changing times and an evolving society. There have been many changes, ammendments to the US Constitution, as there have most other similar documents worldwide. If it was written today, you couldn't expect it to be completely applicable to all situations 200 years from now. Yet there are so many who feel, despite its very loosely written and undefined terminology, it should never be touched, well unless the disagree with it of course, then it only makes sense to amend it. Unfortunately, they are the same people that feel that religion should remain imposed on citizens, that immigrants are second class citizens (at best) and that apple pie is sacred (okay I can't argue that one too much) but I think you get my drift. Changing times mean WE must change, our laws, social interaction and expectations must change accordingly. Otherwise you end up with issues reflecting the dogma that still keeps Palestinians at war, the ancient and often misunderstood writings of the Q'uran etc. These misunderstandings lead to war and war, for many of us, still isn't deemed a good thing. Funny how those that seek such rigidity in the Constitution are usually those that support war, white power and the likes though. Shall we just deem it ignorance and a lack of global knowledge?

apotheon
apotheon

I didn't say there wasn't any way to amend the Constitution. I said that the meaning of "living document" in debates over Constitutional law is not related to whether it can be amended.

Papa_Bill
Papa_Bill

The Fifth Article of the Constitution provides for amendment by Congress: "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

apotheon
apotheon

Hey, TR, the letter D isn't working in the word "document". edit: . . . in some posts.

apotheon
apotheon

The term "living document" is typically used by people who don't like the Constitution to justify reinterpreting it in completely ridiculous ways. "It's a living document!" they say. "Its meaning changes with the times!" they say. As much as I loathed George W. Bush, at least he had the honesty to say what he really thought of the Constitution when he said "It's just a god damned piece of paper!" instead of hiding behind flowery BS like "It's a living document."

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