Comments on: The Copy Ownership Cases

By: neghvar

neghvar — Fri, 01 Jan 2010 09:21:21 +0000

If they call it a license, enforce the license! i.e. For those who have had their account banned, I want to see an employee of Blizzard go to each person’s house and demand the CD/DVD, documentation and key-code returned and a forced deletion of the program from the computer. Same goes with ANY other software. Same goes with audio and video optical discs.

If a license of any kind is revoked, I want to see the copyright owner or an employee of the company that owns the copyright to track down each user and confiscate their “licensed” copy of software, audio or video. I doubt any company would have the balls to do that. That would be public relations suicide.

As for EULAs, none should have the authority to trump our Bill of Rights. There are many that say you cannot express or announce a negative opinion of the product. That’s a freedom of speech violation.

Congress passed these laws to balance the force between Jedis (consumers) and the Sith (Publishers). So the publishers come up with these things called EULAs and Licenses to reverse/nullify those laws without any congressional debate.

By: John David Galt

John David Galt — Fri, 01 Jan 2010 03:49:12 +0000

I’m not a lawyer, but I would think the courts should also consider the fact that 48 states refused to ratify UCITA precisely because it would have recognized these “clickwrap licenses.” And since they did not, the UCC language stating that a sale not involving a written contract is over (no new terms can be added afterward) when the money and goods change hands, is still in effect.

In which case the next question is, why haven’t there been any class-action suits for fraud or bullying filed against publishers who continue to include “clickwrap licenses” in their packages?

By: Aaron

Aaron — Thu, 05 Nov 2009 14:22:28 +0000

More generally, we should be concerned about courts looking to EULAs to decide questions of copy ownership. The trap too many courts fall into, as Brian and others have pointed out, is conflating restrictions on the use of the copyrighted work with limitations on the ownership of the copy.

A license might say you are forbidden from making copies of the work on Tuesdays and Fridays, or you may do so only within the territorial borders of the United States, excluding Arkansas, but those restrictions are limitations on the exploitation of the exclusive rights of the copyright. They tell us next to nothing about ownership of the copy, the physical artifact.

By: Brian

Brian — Thu, 05 Nov 2009 06:23:47 +0000

Yes. There are numerous decisions in U.S. cases enforcing various provisions in click wrap agreements and there are numerous decisions in U.S. cases refusing to enforce various provisions in click wrap agreements. It’s not an all-or-nothing issue that is always decided in the same way in all circumstances. Autodesk, Blizzard, and others can put all manner of nonsense in a click wrap agreement and it does not necessarily mean that a court will find it enforceable. Of note here is that Vernor never agreed to any click wrap agreement. He bought the copies of the software second-hand, never installed them, and then sought to resell them. The case of MDY may also be distinguishable as they are accused of secondary copyright liability, not direct infringement. So, it’s not even clear that looking to an agreement that one party may have never seen or consented to will make sense in trying to resolve this copy ownership issue.

By: google.com/accounts/o8…

google.com/accounts/o8… — Wed, 04 Nov 2009 07:33:10 +0000

Typically someone installing a piece of software has to agree to a license agreement during the software installation process for the installation to proceeed (so-called “click wrap”.) Is there any law in the US that might make the license agreement binding in some way because of that?

By: Aaron

Aaron — Wed, 09 Sep 2009 23:29:38 +0000

Fred

As you know, I’m sympathetic to your arguments in the rulemaking, but two thoughts occur to me. First, does it or should it make a difference that iPhone firmware is subject to update or revision? Does it matter whether permission from the user is required as a legal or practical matter before the old firmware is replaced with something new? The service-based model looks a little less like ownership that the physical media cases, I think.
Second, outside of the rulemaking context, how much weight, if any, do you think the Copyright Office’s pronouncements carry? I’d argue very little, and not solely because of some of their more troubling statements in 2000 and 2003.

By: EFFred

EFFred — Sun, 06 Sep 2009 00:11:36 +0000

The Copyright Office is likely to engage in analysis of “ownership” in the context of Section 117 in the pending DMCA rulemaking proceeding dealing with jailbreaking the iPhone. The main bone of legal contention between proponent (EFF) and opponent (Apple) in that proceeding has turned on whether iPhone owners “own” the firmware on the iPhone.