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A ruling in the bnetd DMCA case

Posted Oct 3, 2004 8:50 UTC (Sun) by job (subscriber, #670)
In reply to: A ruling in the bnetd DMCA case by dps
Parent article: A ruling in the bnetd DMCA case

Ianal, but I understand the DMCA also allows for some limited "reverse
engineering" (how I hate that term). But in this case, the software had
an EULA that explicitly forbids it. That's the problem. I'm not so sure
it the court would have done better in Europe. Probably depends on the
local interpretation on the EUCD. Generally it's not as socially
acceptable to buy politicians and courts in Europe, so the
interpretations aren't that often so bad for the small person. But EU
people shouldn't feel any safer.

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The judge has apparently ruled the EULA to be valid

Posted Oct 4, 2004 4:44 UTC (Mon) by leonbrooks (guest, #1494) [Link]

Was it a click-through or shrink-wrap? In which case:

Bad judge, no doughnut!

A ruling in the bnetd DMCA case

Posted Oct 4, 2004 11:51 UTC (Mon) by dps (subscriber, #5725) [Link]

I am still not a lwayer, but generally rights are things you keep anyway. You can claim in an EULA that my rights under the sale of goods and services act do not apply. If I demand my rights under the act, this clause will not help you---those rights can not be eliminated.

If the EUCD says reverse engineering, for the satted purposes, is a right then you probably can ignore any language that says it is not allowed. Legal advice in Which? consistently if that you can ignore the "by openning this envelope" language, because it has no legal force whatsoever.

I suspect that consumer protection legislation in the US gives you rights that no EULA can remove too. Whether or not you can override the DMCA "limited reverse engineering" section with contract law is not something I am in a position to say,

A ruling in the bnetd DMCA case

Posted Oct 4, 2004 13:45 UTC (Mon) by job (subscriber, #670) [Link]

So what happens with licenses that tries to nullify my rights? Are the
licenses completely invalid, in which case what right to I have to use
the software at all? Or is there a "default license" in copyright law
that overrides it?

A ruling in the bnetd DMCA case

Posted Oct 4, 2004 15:22 UTC (Mon) by mmarsh (subscriber, #17029) [Link]

Unalienable rights can't be given away. Other rights can, such as the right to refuse to testify against yourself. That's a pretty fundamental right, but it's alienable. The right to reverse-engineer isn't nearly as fundamental, however important we feel it is. Even freedom of speech is alienable, as NDAs demonstrate.

Some jurisdictions have specific laws that nullify certain contract or license provisions that would otherwise give away "consumer" rights (I really hate that term). Whether reverse-engineering is so covered is another issue, and one about which I have no knowledge.

Uniform Commercial Code

Posted Oct 5, 2004 14:02 UTC (Tue) by ncm (subscriber, #165) [Link]

The key word in connection with shrink-wrap licenses and the like is "UCC". In the US, the Uniform Commercial Code provides that vendors cannot impose extra conditions on the buyer after money has already changed hands.

Whatever it says on the outside of the box is precisely what you get, and you have an absolute right to do whatever it takes to get the full use of what you paid for. (Therefore, owning and running DeCSS is permitted; it is only delivering it to somebody else that the the DMCA forbids.) EULAs packed in the box are waste paper. Likewise, a sticker that says "by breaking this seal, you agree...". Likewise, a pop-up window in the installer that says "by clicking this button you agree...". Don't read them, just rip through them and go about your business. The same applies to printing on the back of a theatre ticket that says "no refunds": you already paid, so they are obliged to either deliver, or refund your money, regardless of attempts at magical incantation after the fact.

In court, the defense is the same in all cases: "I didn't read it. I had already paid my money. They can't impose extra conditions after the sale."

Warning: In the Second Circuit an unfortunate decision may be interpreted to override the UCC. Also, I am not a lawyer, so the above ain't legal advice.