Use-restricted licenses [LWN.net]

Use-restricted licenses

Posted Feb 1, 2003 12:17 UTC (Sat) by Peter (guest, #1127)
In reply to: Backstabbing (NOT)Perens (LinuxWorld) by xoddam
Parent article: Larry McVoy on BitKeeper, kernel development, Linus Torvalds and Bruce Perens (LinuxWorld)

You're saying that a re-implementation contravenes the use provisions of the license. Isn't there something in the Fair Use doctrine which allows reverse engineering for the purposes of interoperability?

You might think fair use would apply in a number of situations where it apparently doesn't. For example, if you buy a copy of Microsoft Windows NT Workstation, you might consider it fair use to install your copy on your computer and use it to run a high-volume web server. You paid for your copy, so you might think it would be fair use to install and use it on your computer - that's about all you can do with it, after all - and beyond that, it's none of Microsoft's business what you do with it (so long as you don't redistribute it, or make a derived work, either of which would go against copyright law).

Turns out the MS end-user license agreement says you can't do that. You were supposed to buy NT Server instead.

Or download the free personal version of JBuilder. Page through the license and read all about how Borland or whatever they are calling themselves today don't think you should have the right to use copyrighted material you legally downloaded for the purpose of building commercial projects.

The point is, arbitrary use restrictions in end-user licenses are nothing new. Larry didn't invent them. I personally think they are severely stretching enforceability under copyright law, but apparently Silicon Valley either disagrees or is willing to bluff it until a court weighs in. And so, this practice probably won't be challenged in court, or if it is, many courts would choose to avoid the perceived mayhem that would be caused by invalidating such use restrictions. Undeniably, this would be a large boat to rock.

(NOTE: even if such restrictions are held invalid under copyright law, there is no reason software couldn't be distributed on the basis of contracts ... except that getting customers to individually sign pieces of paper before allowing them to purchase or download software would be a major PITA for most vendors. Knowing this, vendors today try to claim that click-through license dialogs actually are contracts, but that is just part of the bluff. Vendors have no right to speak for me in saying that my "clicking" is intended as a legally binding signature or even a handshake.)

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