Courts in various parts of the world have handed down decisions which, in
one way or another, can affect users and developers of free software.
These decisions are not particularly friendly to our community. Here is a
quick overview of what the courts have said.
ACRA v. Lexmark
We have encountered Lexmark before; that company has attempted to use the
DMCA to shut down alternative manufacturers of alternative ink cartridges
for its printers. That attempt failed, but the company appears to have
found another, stronger way of protecting itself from competition: the
shrink-wrap patent license.
In this case, the Arizona Cartridge Remanufacturers Association (ACRA) took
Lexmark to court, challenging Lexmark's "prebate" offering. This marketing
scheme involves "reduced price" cartridges which are explicitly marked, on
the box, as being "single use only." Customers are supposed to return
empty cartridges to Lexmark, and they are prohibited from giving the
cartridges to other remanufacturers. ACRA alleged that the labeling on the
box was deceptive, since it was not actually binding upon customers. ACRA
failed to convinced the US 9th Circuit Court of Appeals, however; on
August 30, it reaffirmed
a lower-court decision [PDF] in Lexmark's favor.
The two things which come out of this ruling are: (1) patents can be
used to impose post-sale restrictions on customers, and (2) labeling
on a package can be a valid shrink-wrap patent license. So anybody who
disposes of a used Lexmark cartridge in a non-approved manner becomes a
patent infringer - and remanufacturers which accept those cartridges are
It is not hard to see where this sort of logic can go. If a product
contains technology subject to a patent, that patent can be used to impose
no end of post-sale conditions. In the current climate, obtaining a patent
which can cover any given product will not be an especially challenging
task. Those patents could be used in interesting new ways. It is already
annoying to buy a laptop with a "designed for Windows" sticker attached to
the case with 1000-year glue. How fun would it be if the sticker read
"designed for Windows only" - and have it be enforceable?
Many of us use free software because it gives us greater control over our
systems. The growing power granted to those who hold intellectual property
rights threatens to take the control away. Increasingly, we do not truly
own the hardware we thought we had purchased; we simply hold a set of
limited rights to use that hardware in specific ways which do not threaten
the manufacturers' interests. That does not seem like the path to freedom.
Universal Music Australia Pty Ltd v Sharman License Holdings Ltd
In Australia, a large number of media companies took Sharman License
Holdings to court, alleging several copyright-related violations.
Sharman, the distributor of Kazaa, does not have entirely clean hands -
nobody disputes that many people use Kazaa to engage in copyright
infringement. In its defense, Sharman argued that it had no control over
the behavior of Kazaa users, that it had warned them about infringing
copyrights, and that the license agreement for the software prohibited its
use to make unauthorized copies of copyrighted materials.
The judge actually bought that argument - to an extent. The ruling
in this case clears the defendants of many charges of copyright
infringement. The judge did find, however, that the defendants had
"authorized" users to infringe copyrights, and that this act violated
Australian copyright law.
The defendants will now have to pay damages. Kazaa will be allowed to
continue to exist, but a new version must be released within two months
with filters designed to block infringing uses. In particular, the
software will have to accept a list (provided by publishers) of claimed
works, and block attempts to trade files which match entries in the lists.
It is not hard to imagine that file traders will respond to the keyword
matching in the same way spammers have; expect to see some creative
spellings attached to music files in the near future.
The judge seemed to have a real interest in not shutting down peer-to-peer
communications altogether, and mandated that the filtering be imposed
"... without unnecessarily intruding on others' freedom of speech and
communication." The fact is, however, that this is yet another
ruling holding software developers responsible for the acts of certain of
their users. Manufacturers of cutlery, automobiles, and firearms are not
held to such standards, but people who innovate in the software area do so
at their own risk. Thus far, most of the legal firepower has been
aimed at commercial file sharing operations, but that does not mean that
pure free software projects are immune to this sort of attack.
Blizzard v. bnetd
One free software project which has been subject to this sort of attack is
bnetd, last mentioned here two
weeks ago. The Eighth Circuit Court of Appeals has now issued its ruling in
this case [PDF], and the news is not good: bnetd lost on all counts.
The logic remains unchanged from the prior court's ruling; for example:
The bnetd.org emulator had limited commercial purpose because its
sole purpose was to avoid the limitations of Battle.net. There is
no genuine issue of material fact that Appellants designed and
developed the bnetd.org server and emulator for the purpose of
circumventing Blizzard's technological measures controlling access
to Battle.net and the Blizzard games. Summary was properly granted
in favor of Blizzard and Vivendi on the anti-trafficking
The idea that free software has fewer rights because it has "limited
commercial purpose" is chilling, to say the least. In any case, the
interoperability exception to the DMCA has been shown to mean little, once
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