SOftware Licensing

[Dave Schwartz]

Picked this up in a newsgroup for programmers...

Interesting implications. The short version is this:

All "shrink-wrap" license agreements typically contain a "no reverse engineering" clause, yet everyone does reverse engineer. (How else are import/export utilities built?)

This case says that, "You bought it. You knowingly accepted the no-reverse clause. You cannot reverse engineer."

The issue here is not copyright law, but contract law.

It will be a huge step back for software if this verdict stands.

Regards,
Dave Schwartz

[hurrikane]

Not sure I understand your meaning here Dave. Maybe some pieces are missing.
If you write an import/export to handle data in your software you are not reverse engineering. No problem as long as you have all the i's dotted with HDW. you are dealing with data, not software.

If I were to rip your software apart and pull out the data for my own use or to sell that would be reverse engineering and I don't think you want me to do that do you?

[Dave Schwartz]

Hurrikane,

The point is that what makes our world work today is that everyone can interchange documents because file formats have not been considered proprietery. This would change that.

Imagine if MS Word changes their file format and only Word Users could read Word Docs. It kills all the interconnectivity.



Dave

[rrbauer]

Dave Schwartz wrote
The point is that what makes our world work today is that everyone can interchange documents because file formats have not been considered proprietery. This would change that.

Comment:
File formats aren't proprietary unless encrypted and stated as such. File data isn't proprietary unless copyrighted and stated as such. Non-disclosure agreements are used by companies that wish to protect 'trade secret' methods and data.

Once you place something in the public domain without caveats, then all bets are off. It's no longer proprietary regardless of its form.

[Dave Schwartz]

Richard,

What you have described is correct according to copyright law. However, this is contract law. And if the accepted contract says, "No reverse engineering" then creating a file format would fall into that category.

It is much like the contract that horse racing vendors have... They tell you what you can or can't do with their data. And it goes well-beyond the scope of copyright.

Perhaps a lawyer (I am sure we have some here) could chime in with an opinion?

I had lunch with mine today and we discussed this. It is his opinion that this could become a landmark case, if it is upheld.

Dave

[ranchwest]

Should be an interesting case, since the agreement is usually inside the shrink wrap. Normally, the law is that you cannot be held to an agreement to which you cannot have foreknowledge. It will be interesting to see if the ruling addresses this point. If you don't have a contract in the first place, then nothing is enforceable.

[Dave Schwartz]

RW,

And, to further complicate things, try returning the software to the store as instructed in the license agreement. They want you to send it to the software producer, who, btw, will not return your money because you did not purchase it from them.

Guess how I know this? <G>

Dave

[rrbauer]

"No reverse engineering"

WTFTM.....!

:)

[BillW]

Originally posted by Dave Schwartz
RW,

And, to further complicate things, try returning the software to the store as instructed in the license agreement. They want you to send it to the software producer, who, btw, will not return your money because you did not purchase it from them.

Guess how I know this? <G>

Dave

In some cases Companies have actually streamlined the process. They skip the part about returning the SW to the producer and go straight to the "so sue us" part.

http://www.linuxjournal.com//article.php?sid=6318



Bill

[Tom]

And they want to complain about software pirates?
More power to them. Treat a data whore like a whore, I say!

[rrbauer]

Here's what I recall from a semester of "Contract Law":

3 issues:

1. Is there a contract (offer-acceptance)?
2. Is there performance (deliver the goods baby)?
3. Is there consideration (payment for performance)?

Based upon this, my read is that the issue falls under number 2, "performance". And, given that, the contract needs to spell out in explicit detail what constitutes performance and if "reverse engineering" is a no-no, then all of the attributes of the reverse-engineering no-no's need to be spelled out.

So the "landmark" case could just as easily go against the plaintiffs, if they don't spell out enough no-no's as it could the defendants, who are accused of violating the no-no's.

But, as a practical matter, judges don't like to do a lot of guessing about what terminology means with respect to contract law. And, if it ain't in the contract, they aren't about to put it in the contract.

And, I thank professor (and barrister) Sam Hill (no lie baby), for my education in contract law. A good ol' boy from North Carolina!

[BillW]

Problem is Richard, that this move is designed to destroy competition from the up and coming lil guy. It's not about fair ... the little guy can't afford to get to the point where fair is determined. (Of course, an alternative point of view is this is just survival of the fittest. :) )

Bill

[hurrikane]

Dave,
do you have a link to this case.
To add to rr's comments. Key here is that this is a unilateral contract. Any ambiguity shall be decided in the favor of the person who did not write the contact. If 'reverse engineering' isn't ambiguous..I don't know what is. I'm not even sure it is an industry accepted phrase when it comes to data.

rr - WTFTM--?

[Dave Schwartz]

I am really sorry. I thought I posted the link into the thread.

Here it is.

http://www.infoworld.com/articles/op/xml/02/09/16/020916opgripe.xml

By the way, the court found for the plaintiff. Let's hope it is overturned.

Dave

[rrbauer]

After reading about the issue from the link provided by Dave, I'm not sure that the information provided proves that "reverse engineering" as I understand it happened (or, is even the issue).

Generally, in the software biz, reverse engineering (RE) refers to the process of disassembling the object code either from an .exe .obj or .dll module back to source code at the assembly language level (chip specific) to see what the code looks like that produces various elements of functionality. In otherwords, RE is about, "How did they do that?".

What seems to be the issue is perceived functionality provided to the end user that existed in one product and was later added to another, competing, product. Is adding functionality, based upon observation of a feature, "reverse engineering"?

[Dave Schwartz]

Richard,

Well, I think it is, but I am not convinced it should be... part of a license agreement.

WHile the now-famous Lotus-Mosaic lawsuit put Mosaic out of business years ago, Lotus actually lost some of the key points.

IMHO, this could take us years backwards.

Dave

[Show Me the Wire]

Without reading the decision it is guess work about the actual ruling or rule of law held in this matter. Putting it in some perspective, this is an appeal from a jury verdict. Jury verdicts somewhat confine an appeals court. The reviewing court is limited to review the evidence and the issues raised in the trial and must find the jury made a finding of fact totally against the manifest weight of the evidence presented in the case. Basically, the court has to believe the jury ignored all common sense in its findings, a difficult task for a court.

The rule of law stating copyright law would not preempt or narrow the scope of parties privy to a contract is well established and courts' generally will not set aside freely entered into agreements. Herein is the problem. Is opening a shrink-wrap package freely entering into an agreement? An argument must be made there is not equal bargaining ability between the parties and as a result of the unequal bargaining ability the agreement contained in the shrink-wrap is forced upon the weaker party. If contractual terms are forced upon a weaker party it is a contract of adhesion. Contracts of adhesion are void because there is no mutuality between the parties.

I do not know if this argument was put forth in the trial court and if it was not the appeals court could not rule on this specific issue. As I said before this is mostly conjecture on my part as I have not read the original ruling.

Regards,
Show Me the Wire

If people lack knowledge and desire then they cannot act; if no action is taken harmony remains.

[rrbauer]

'Wire

Right!

That's what I was trying to say! :) :)

[Dave Schwartz]

SMTW,

Thanks for that analysis. Scary, but I actually understood it.

Regards,
Dave Schwartz

[Show Me the Wire]

Dave:

Actuallly the scary part is that I can think in those terms.

Regards,
Show Me the Wire

Knowing when to stop prevents continuing into danger.