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From : Sergey Lentsov 2:4615/71.10 08 Nov 2001 17:11:05
To : All
Subject : URL: http://www.lwn.net/2001/1108/
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See also: [36]last week's LWN.
Leading items and editorials
Interesting court cases is the theme of the week. Some LWN readers
have been heard to grumble that we spend too much time on licensing
and legal issues. Perhaps that is true, but these issues are crucial:
free software is very much at the mercy of the legal environment in
which it operates. The law can either help free software's success, or
it can make free software illegal and impractical.
Thus, the outcomes of the three cases described below are important.
Even if they are limited in scope, they point toward where we could be
going in the future. Non-U.S. readers may feel uninterested in purely
U.S. results, but the fact remains that conclusions reached here -
both good and bad - have a tendency to leak out toward the rest of the
world. So read on...
Source code is speech, or so concludes a California state appeals
court in the Bunner DVD case. Bunner is "the other DVD case," distinct
from the (higher-profile) New York case. The defendant, Andrew Bunner,
had been taken to task for posting the DeCSS code on his web site, and
ordered by a lower court to take it down. In his appeal, he claimed
that the injunction violated his free speech rights. In its ruling
(available [37]in PDF format), the court agreed:
Like the CSS decryption software, DeCSS is a writing composed of
computer source code which describes an alternative method of
decrypting CSS-encrypted DVDs. Regardless of who authored the
program, DeCSS is a written expression of the author's ideas and
information about decryption of DVDs without CSS. If the source
code were "compiled" to create object code, we would agree that the
resulting composition of zeroes and ones would not convey ideas....
That the source code is capable of such compilation, however, does
not destroy the expressive nature of the source code itself. Thus
we conclude that the trial court's preliminary injunction barring
Bunner from disclosing DeCSS can fairly be characterized as a
prohibition of "pure" speech.
So, code is speech. That is an interesting conclusion, but it does not
automatically lead to the conclusion that Mr. Bunner is entitled to
publish that speech. American constitutional law is firm in its
protection of speech, but there are still many exceptions. To what
extent will the designation of code as speech address the various
legal problems that free software has encountered recently?
The precedent set by this case, unfortunately, does not help as much
as one would like. The Bunner case differs from the New York case in
an important aspect: the complaint in Bunner is based entirely on
trade secret law. Copyright (and the DMCA) are not part of the
argument. That distinction is a key part of the court's reasoning:
Thus, the availability of injunctive relief against copyright
infringement is supported by justifications that are inapplicable
to trade secrets. Both the First Amendment and the Copyright Act
are rooted in the United States Constitution, but the UTSA [trade
secret law] lacks any constitutional basis. The prohibition on
disclosure of a trade secret is of infinite duration while the
copyright protection is strictly limited in time, and there is no
"fair use" exception as there is for copyrighted material. These
significant distinctions between copyright and trade secret
protections explain why courts have concluded that the First
Amendment is not a barrier to injunctive relief in copyright
infringement cases.
In other words, a first amendment ("free speech") argument beats trade
secret law (at least sometimes), but copyright law has a different
stature. So, for example, "code is speech" defenses are not
automatically assured of success against DMCA prosecutions, since the
DMCA is a copyright law.
Finally, the decision in this case applies only to "prior restraint"
of speech - the blocking of such speech before it can be proved that
damage has been done. With code seen as speech, denial of prior
restraint was an easy conclusion for the court to reach ("Indeed, the
Supreme Court has never upheld a prior restraint, even faced with the
competing interest of national security or the Sixth Amendment right
to a fair trial."). The door remains open, however, to injunctions or
damages against Bunner down the road, if the DVDCCA can prove that law
has been violated and harm has been sustained. So this case is not yet
over.
License agreements and first sale doctrine. Below the radar of much of
the free software community, another interesting case was coming to a
conclusion in U.S. District Court in California. In this case, our old
buddy Adobe Software was pushing for an injunction against SoftMan
Systems. Softman, it seems, has been buying Adobe software
collections, splitting them into their component parts, and selling
those parts independently. Adobe's claim is that this reselling
activity violates the end-user license agreement (EULA) covering the
program, and is thus a copyright violation.
The court disagreed (this ruling, too, is [38]available in PDF
format). Essentially, the court has said that the EULA does not apply
to SoftMan, for a couple of interesting reasons. One is that SoftMan
never agreed to the EULA, and is thus not bound by its terms:
In the instant case, the Court finds that there is only assent on
the part of the consumer, if at all, when the consumer loads the
Adobe program and begins the installation process. It is undisputed
that SoftMan has never attempted to load the software that it
sells. Consequently, the Court finds that SoftMan is not subject to
the Adobe EULA.
The ruling also casts doubt on whether agreeing to a click-through
license can truly be binding to the consumer.
The other aspect of the court's ruling is that the software was sold -
not licensed - to SoftMan:
The Court understands fully why licensing has many advantages for
software publishers. However, this preference does not alter the
Court's analysis that the substance of the transaction at issue
here is a sale and not a license.
Since this transaction is a sale, the first sale doctrine applies:
In short, the terms of the Adobe EULA at issue prohibit licensees
from transferring or assigning any individual Adobe product that
was originally distributed as part of a Collection unless it is
transferred with all the software in the original Collection. This
license provision conflicts with the first sale doctrine in
copyright law, which gives the owner of a particular copy of a
copyrighted work the right to dispose of that copy without the
permission of the copyright owner.
These conclusions are interesting, in that they have the potential to
tilt the interpretation copyright law a little toward the rights of
users of copyrighted material. For example:
* Both DVD cases depend, partly, on the claim that a commercial DVD
package was "improperly" reverse engineered. It is the software's
EULA, however, that prohibits that reverse engineering. If the
code is reverse engineered without installing it and agreeing to
the EULA (by, say, disassembling it on a Linux system), the EULA
does not apply. The Bunner case, in particular, could be affected
by this ruling.
* Reselling that unwanted Windows installation on your new computer
should be legal.
* Electronic books, too, are subject to first sale; it should be
possible to resell them.
The ruling gives an out to software companies that wish to continue to
"license" rather than sell a copy of their software. The transaction
is considered a sale when it involves a single payment and use of the
software for an unlimited time. Thus, the "rent-a-program" schemes
being proposed by many are untouched.
This affirmation of the first sale doctrine is a welcome strengthening
of the rights of consumers of copyrighted material. Here is an
interesting scenario, though: suppose an unethical vendor obtains a
copy of a program licensed under the GPL, makes a change, and resells
the product under a proprietary license? Consider, for example, a
Linux distribution where the C library has been replaced with a
proprietary, value-added package. The vendor could argue that the
tweaked copy can be resold under the first sale doctrine. Massive
distribution could be made possible by "purchasing" a new copy of the
GPL code for each copy sold. We may never see a vendor attempting this
approach, but the possibility exists.
The settlement. Tempting though it may be to ignore it, the settlement
between that proprietary software company and the U.S. government is
worthy of a mention. For the most part, the settlement looks like it
will change little for the free software community. Microsoft will
continue to exist as a single company, and will have relatively few
constraints on what it can do. Business as usual.
The settlement does make it harder for Microsoft to prevent vendors
from selling dual-boot systems. Dual-boot boxes may thus become
available from some vendors, which may encourage a few people to try
out Linux. For the most part, however, dual-boot systems are of
limited utility,and their wider availability will not change a whole
lot.
In theory, the settlement requires Microsoft to (eventually) document
its protocols. However, as [39]the Samba team has pointed out, it's
far from clear that such documentation will be forthcoming. The
settlement gives Microsoft a great deal of latitude in what it will,
and will not, release.
Then, there is the more ominous view of this settlement. Consider, for
example, [40]this Dan Gillmor column:
Is it possible that Microsoft and the government have made some
secret arrangements that will be couched under 'anti-terrorism'
rhetoric when or if they emerge into the public light? The
government's new surveillance powers would be far easier to carry
out if Microsoft became a government ally in this area.
Also [41]expressing concern is Dave Winer:
Microsoft had a lot of power to offer to the government. The
government has been granted new electronic surveillance power by
Congress. Now how do they implement it? Microsoft can help. In my
mind I'm not so naive to believe this was an arms-length deal, I'm
certain there are aspects to the partnership between Microsoft and
the US government that we can't see.
It would be easy to achieve an excessive amount of paranoia here, but,
at the same time, these concerns are worth considering. Whether or not
anything is really happening here, a network dominated by closed
source software is vulnerable to government manipulation and
surveillance.
Meanwhile, several U.S. states may refuse to join the settlement; if
they remain outside, the case will remain alive. The European Union is
still pondering what it may do. This story is far from over. No matter
how it comes out, though, one presumes that free software will
continue to progress and see wider use. No legal settlement is
required for that to happen.
Inside this LWN.net weekly edition:
* [42]Security: OpenSSH 3.0; another kernel vulnerability.
* [43]Kernel: Toward 2.5; authoritative hooks denied; thrashing
/proc.
* [44]Distributions: Linux Counter - The distribution of
Distributions; Red Hat on Top; Debian runs a close second.
* [45]Development: Sweetcode site, new Alsa releases, ivtools-1.0,
Gnumeric 0.75, and lots of XML stuff.
* [46]Commerce: Sharp announces Linux PDA; IBM open sources Eclipse;
MontaVista goes digging for oil.
* [47]History: Stop terrorism. Use free software; Microsoft ruled a
monopoly; More software patents.
* [48]Letters: The risks of documenting security fixes; reporting
bugs.
...plus the usual array of reports, updates, and announcements.
This Week's LWN was brought to you by:
* [49]Jonathan Corbet, Executive Editor
November 8, 2001
[50]Click Here
[51]Click Here
[52]Next: Security
[53]Eklektix, Inc. Linux powered! Copyright Л 2001 [54]Eklektix, Inc.,
all rights reserved
Linux (R) is a registered trademark of Linus Torvalds
References
1. http://lwn.net/
2. http://ads.tucows.com/click.ng/pageid=001-012-132-000-000-001-000-000-012
3. http://lwn.net/2001/1108/security.php3
4. http://lwn.net/2001/1108/kernel.php3
5. http://lwn.net/2001/1108/dists.php3
6. http://lwn.net/2001/1108/devel.php3
7. http://lwn.net/2001/1108/commerce.php3
8. http://lwn.net/2001/1108/press.php3
9. http://lwn.net/2001/1108/announce.php3
10. http://lwn.net/2001/1108/history.php3
11. http://lwn.net/2001/1108/letters.php3
12. http://lwn.net//2001/1108/bigpage.php3
13. http://lwn.net/daily/
14. http://linuxcalendar.com/
15. http://lwn.net/stocks/
16. http://lwn.net/Reviews/
17. http://lwn.net/Gallery/
18. http://lwn.net/archives/
19. http://lwn.net/op/headlines.phtml
20. http://lwn.net/op/Contact.html
21. http://linux.tucows.com/
22. http://news.tucows.com/ext2/
23. http://unixthemes.tucows.com/
24. http://lwn.net/2001/features/oreilly2001/
25. http://lwn.net/2001/features/OLS/
26. http://lwn.net/2001/features/MandrakeSoft.php3
27. http://lwn.net/2001/features/KernelSummit/
28. http://lwn.net/2001/features/Singapore
29. http://lwn.net/2001/features/djbdns.php3
30. http://lwn.net/2001/features/linuxworldny/
31. http://lwn.net/2001/features/JHaas/
32. http://lwn.net/2001/features/LarryWall/
33. http://lwn.net/2001/features/Momjian/
34. http://lwn.net/2000/features/Timeline/
35. http://lwn.net/2001/1108/
36. http://lwn.net/2001/1101/
37. http://www.courtinfo.ca.gov/opinions/documents/H021153.PDF
38.
http://www.cacd.uscourts.gov/CACD/RecentPubOp.nsf/bb61c530eab0911c882567cf005ac6
f9/574aa79ff518021188256aed006ea2dc/$FILE/CV00-04161DDP.pdf
39. http://lwn.net/2001/1108/a/samba-ms.php3
40. http://www.siliconvalley.com/docs/opinion/dgillmor/dg110701.htm
41. http://davenet.userland.com/2001/11/06/youreFreeToThink
42. http://lwn.net/2001/1108/security.php3
43. http://lwn.net/2001/1108/kernel.php3
44. http://lwn.net/2001/1108/dists.php3
45. http://lwn.net/2001/1108/devel.php3
46. http://lwn.net/2001/1108/commerce.php3
47. http://lwn.net/2001/1108/history.php3
48. http://lwn.net/2001/1108/letters.php3
49. mailto:lwn@lwn.net
50. http://ads.tucows.com/click.ng/buttonpos=lwnbutton125top
51. http://ads.tucows.com/click.ng/buttonpos=125-001-016
52. http://lwn.net/2001/1108/security.php3
53. http://www.eklektix.com/
54. http://www.eklektix.com/
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URL: http://www.lwn.net/2001/1108/ |
Sergey Lentsov |
08 Nov 2001 17:11:05 |
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