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Law Professors File Brief Defending Right to Reverse Engineer
posted by md on Sunday October 27, @07:45PM
from the sign-on-the-dotted-line dept.
Copyright A group of law professors led by Mark Lemley of the University of California, Berkeley, has filed an amicus brief in a case that purportedly allows licensors to "contract around" a user's right to reverse engineer the software they buy. In the case of Bowers v. Baystate Technologies Inc, a Massachusetts federal court found that the defendant had violated a shrinkwrap license when it purchased a software program and studied it in order to create its own program.

Like many software shrinkwrap licenses, the one in question in Bowers had a reverse-engineering provision. However, the law professors filing their brief in favor of reconsideration of the case argue that the Bowers case went too far, and seemed to stand for the proposition that even if someone has a constitutional, fair use right to reverse engineer, they waive that right when they agree to the terms of an anti-reverse engineering shrinkwrap license. Thus, the professors are hoping that the constitutional right to fair use can "trump" the contractual power of a software license, in much the same way that you could not contract away other constitutional rights, such as the rights to be free from slavery or murder.

The Chronicle of Higher Education has a story covering the brief.

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    Law Professors File Brief Defending Right to Reverse Engineer | Login/Create an Account | Top | 3 comments | Search Discussion
    Threshold:
    The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
    Take this one to the Supreme Court (Score:2, Informative)
    by bwtaylor on Monday October 28, @12:38PM (#438)
    User #184 Info
    I'm glad to see this case being picked up. The direct conflict between this and Vault v Quaid could make this issue ripe for Supreme Court review.

    I'm somewhat annoyed however that the basic issue of contract existence is not argued. The foundation is clearly there to argue that no contract exists because of ordinary contract law issues under the UCC 1) who are the parties and 2) what is the consideration.

    1) A EULA cannot stand as part of the purchase contract because the parties are different.

    In particular, when you buy shrinkwrap software, your receipt is the contract of sale. Typically this occurs between you and some retailer. Other courts (eg the Adobe v Softman case) have reasonably ruled that these interemediaries are "owners" of the software. This reasoning all but assures that you are the "owner" when you trade money for the box. The EULA terms are not on the contract of sale and are therefore either an amendment to it or a completely separate contract. If they are an amendment, they must be agreed to in writing. ProCD made this error.

    2) The EULA offers no consideration

    17 USC 117 gives the "owner" the right to install or adapt software on a machine. Thus the single user EULA gives you nothing -- you already have that right. Consideration is a requirement for the existence of a contract.

    Additionally, this plays into the "extra element" test for 301 preemption. Certainly copyright law comprehends the basic elements of a contract of sale when a work is published for public consumption. First sale rights would all be irrelevent if this was not the case. Bobbs-Merril v Straus would have been decided differently if the "no resale" writing was considered an extra element. The installation right which the EULA grants is also clearly covered by the Copyright Act in 17 USC 117. ProCD and its minion wave their hands by pointing to the contract as an "extra element". What is extra about the contract? Nothing.
    Re:Take this one to the Supreme Court (Score:0)
    by Anonymous Coward on Monday October 28, @05:43PM (#439)
    In many of today's cases I see a move on the part of corporations large and small to have all software sales defined as leases instead of actual sales. (Note Microsoft's continued move in this direction for its WindowsXP OS and their continued statements that at some point in the very near future you will not be able to purchase WindowsXP without registering the program on-line. That upgrades will be forced upon the end-user whether or not they wish it and that DRM will be enforced whether or not the end-user wishes that as well.) By allowing companies and corporations to rewrite our basic laws (the DMCA comes to mind and others) without the needed input of those to whom the laws will mostly affect we are creating a country who's pendulum has swung so far the clock is basically going to break. Common sense is needed in cases such as this one. But it seems that that is something we now lack. It will be interesting if this case does go to the Supreme Court.

    But it will be more interesting if it does not.

    Re:Take this one to the Supreme Court (Score:2, Insightful)
    by bwtaylor on Monday October 28, @07:19PM (#440)
    User #184 Info

    The software companies have engaged in a deliberate attempt to deny reality. The argument "it isn't a sale, it's a licence" is a play on words that is a knowing, intentional lie.

    It isn't a matter of "common sense" so much as basic honesty and ethics. Either the law is based on reason or it is based on "might makes right". There is no moral reason to obey the law if it is the latter.

    Humanity has the stars in its future, and that future is too important to be lost under the burden of juvenile folly and ignorant superstition. - Isaac Asimov

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