>www.pobox.com/~djb/softwarelaw.html:
>
>"Once you've legally downloaded a program, you can compile it. You can
>run it. You can modify it. You can distribute your patches for other
>people to use. If you think you need a license from the copyright
>holder, you've been bamboozled by Microsoft. As long as you're not
>distributing the software, you have nothing to worry about."
I was told last night by an IP lawyer that "click-through licenses
have been upheld in court". That is, if you download what *appears*
to be free software via FTP or the Web, get it on your machine, run
it, and it says "click ACCEPT if you accept <whatever terms>,
else click DENY and you must destroy all copies of this software [or
whatever]", and you click ACCEPT but do not abide by the terms (even
though you abide by the *legislated* terms for copyrighted works,
i.e. you don't redistribute the code), you are liable for --
something, I guess, infringing the copyright, even though you didn't,
or infringing the license, even though you did not agree to it
in any legally binding contract with another person, organization,
or duly appointed agent thereof.
So it appears whatever Microsoft et al want, they get. This lawyer
was actually quite happy with the decisions, despite implicit recognition
that it was extra-legal (in the sense that the judge just invented
new law on the spot) -- she pointed out how that's often how new
"law" gets made. She said it was better this way, because, in *my*
words, wouldn't it be doggone inconvenient to make people take another
30 seconds to a couple of minutes to read and approve a license during
an on-line transaction *before* taking the 1 hour to download so-called
"free" software or bringing the shrink-wrapped software they have
supposedly "bought" home. I.e. it's better to put them into the position
of reading and approving that license *later*, after they've already
invested so much additional time and effort that the pressure to conform
and accept a license they'd have easily disagreed with at the point of
sale (or FTP), or even just recognize that they're now "talking" to a
machine and thus have no legal *or ethical* compunction to "tell the
truth" ("thou shalt not bear false witness against thy neighbor" does
not cover conversation with your *computer*), so they're either
conforming users or targets of litigation.
I haven't done any research on the decisions yet, but that's the gist
of her interpretation, and it is more consistent with *recent* explanations
of what licenses can and cannot get away with than my previous
understanding.
So apparently the proprietary software industry is willfully and
illegally abetted by judges who make law instead of adjucating it,
at the expense of end users.
I wonder if anyone's working on bringing a class-action lawsuit against
proprietary software producers who promise, via ads, that users will
actually "own" copies of the software, with all that implies via
copyright law and freedoms resulting thereby, but who then retroactively
take back some of those freedoms, and who even use the courts to
create new law for them that the *legislatures* have the sole province
to create, with the input from ordinary citizens that approach would
at least appear to imply? (Not that I exactly *trust* them to do so;
but legislation is a *vastly* better way to inform the public of what
it is allowed to do than litigation via a corruptible judiciary, because
the former is before-the-fact, the latter amounts to retroactive
legislation...not to mention the opportunities for relief are more
plentiful.)
Perhaps the threat of a few billion dollars of repayment, e.g. triple
damages of the difference between sale price plus time/resources spent
by users obtaining the software and the typical rental/lease price
(targeting those licenses that amount to changing the transaction from
a sale into a rental/lease), would get the software developers to
change their tune.
Of course, such a lawsuit would implicate the (presumably) corrupt judges
who facilitated these tactics in court, and even juries can be effectively
bought off to return verdicts in accord with the desires of their
neighbors and friends (an anti-MS verdict in Seattle? yeah, right ;-),
without being overturned by judges who should, and often do, know
better. So the legal profession, which includes most judges, could
be expected to defend their profession against any and all attacks,
no matter how legitimate.
In the end, there's always the Second Amendment. I've just exercised
my rights vis-a-vis the First -- I hope those who've corrupted our
legal system have an opportunity to pay attention. (Since I choose
non-violence and don't own a gun, the only role the Second Amendment
plays for me, personally, is to speak out sufficiently so *others* have
less reason to take up arms against those who attack our Constitution,
including our system of government, whether from without or within.
Those who wilfully do violence to that system, on the assumption that
they're never going to be physically harmed as a result, might, someday,
be rather disappointed that I and others stop exercising our First
Amendment rights to speak out against violence when it's directed at
them -- I, for one, tend to get *very* quiet when I see bullies, especially
those who've already been warned, about to get the **** beaten out of them.)
tq vm, (burley)
