> -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] Behalf Of Jeremy McDermond > Sent: Tuesday, April 08, 2008 3:42 AM > To: [email protected] > Subject: Re: [c-nsp] IOS pirating requests > > > On Apr 8, 2008, at 4:58 AM, Ted Mittelstaedt wrote: > > > > > You really need to be careful here. Keep in mind > > that for the last decade software vendors have been scruplously > > avoiding having shrinkwrap licenses tested in court, there's not been > > a single court case of a software vendor (like Microsoft or Cisco) > > suing anyone for violating a shrinkwrap license that they did not > > explicitly sign and agree to abide by. > > Not withstanding the issue of first sale doctrine, I don't think this > is true. In _ProCD, Inc. v. Zeidenberg_, 86 F. 3d. 1447 (7th Cir. > 1996) the Seventh Circuit said that "Shrinkwrap licenses are > enforceable unless their terms are objectionable on grounds applicable > to contracts in general (for example, if they violate a rule of > positive law, or if they are unconscionable)." They further extended > this to terms included in the box with hardware in _Hill v. Gateway > 2000_, 105 F.3d 1147 (7th Cir. 1997). The Hills received a Gateway > computer with terms and conditions inside including an arbitration > clause. The Hills sought to get out of the arbitration clause, but > the court held that because they kept the computer more than thirty > days, that they had assented to the terms in the contract contained in > the computer box. Note that the Uniform Commercial Code 2-204(1) says > that "A contract for the sale of goods may be made in any manner > sufficient to show agreement, including conduct by both parties which > recognizes the existence of such a contract." The fact that you kept > your Cisco router and operated it could be interpreted as acceptance > of the software agreement that went with it. >
I would agree that a shrinkwrap gives the vendor a bit more control over an embedded software program. No argument there - if for example I bought a Cisco router with IOS in rom, the shrinkwrap would be useful for preventing me from legally selling copies of the rom. Of course, what your missing is that since the rom is copyrighted - it says so on bootup, and likely on a sticker on the rom, as well as in the code in the rom - that really a shrinkwrap wouldn't be needed anyhow, as I could likely successfully be sued for copyright violation. But as for the implication that a shrinkwrap can get much beyond what is already enshrined in copyright law, that's a whole different argument. The Hill vs Gateway case isn't applicable to this discussion because it dealt with a contract within the system that covered hardware. It was not really a "shrinkwrap license". (indeed, I fail to understand why people even used that terminology in that case since the complaint against Gateway was complaining about the hardware, not the software that was running on the hardware) You do not "license" hardware, you "license" software. You "own" hardware - or at least in the Hills case, when they bought their system they definitely owned the hardware. In any case, how the Hills went about it - attempting to get a class certified - was exactly the wrong way to do it. In reality, it was a simple fraud case. Gateway advertised and stated on the box that the machine contained a Millennium card, the system did not actually contain such a card. They printed "surround sound" on the boxes of the speakers, the speakers were in fact not surround sound. What should have happened was that the Hills should have filed a fraud complaint with their state Attourney General and collected up all the evidence to prove fraud, then let the AG sue Gateway for fraud. The contract inside the box would have had absolutely no relevance to an easily-proved fraud case, and GW2K would have been fined and likely forced to make restitution to all the owners. The Hills screwed up frankly because they got greedy. They knew that an AG settlement would have likely gotten them a lot less money than a successful class-action, so they jumped for the money. Now you can think what you want, but it's been my observation that judges usually take a dim view of individuals who come across wrongdoing and figure they are going to make a killing off of it, rather than reporting it to the police and working within the usual law-enforcement criminal proceedings, and quite often will twist the law around to screw those individuals out of their chance to open a cash cow. Anyway, getting back to the Cisco router IOS argument, I think the weakness here is that Cisco (at least with current product) is generally selling a lot of their routers as "bundles" that is, you aren't bying a chassis on one line item, and an IOS feature set on another. At least, that's what the order of the day is with the 1800,2800,3800 series of "new" product. Ironically, I think this is more of an anti-piracy measure, as what used to happen quite often is people would buy the chassis and "forget" to pay the extra money for the IOS feature set. These days Cisco isn't giving you a choice anymore, they are making sure that they are going to get their pound of flesh for the IOS software by not letting you buy the bare router. As a result, the IOS is considered part of the hardware. Thus, while a shrinkwrap might be able to set some additional terms on the IOS other than simple copyright ownership, your going out on a limb to expect much more than that. I think that a term in the IOS shrinkwrap license included with one of these Cisco routers that prohibited you from selling the router based on the idea that Cisco's copyright on IOS gave them the ability to determine distribution of their work, would be considered unconscionable. Otherwise if it were not then every book publisher could simply slap a contract on the inside cover of every book they publish that prohibited people from selling their old books to a used book dealer. And the MPAA and RIAA could do the same to prevent sales of used DVDs and CDs. The sticky wicket really boils down to Cisco's insistence that if I buy for example a 2800 Advance Security with VPN bundle, use it for 2 years, then sell the entire thing, that the secondary purchaser now only has the legal right to own the chassis, and that the IOS within the Advance Security bundle was non transferrable. Once more, I think that Cisco is really loath to test this in court. Reason being is that if such a thing was upheld, it would make anyone buying a used computer that had an OEM copy of Windows preloaded on it, which came with the computer, now running an illegal copy. And Microsoft and many others have already stated that OEM licenses cannot be transferred to new hardware, they are tied to the original hardware they were sold on. As a result of this insistence, that means that since the OEM license is tied to the original computer, if the original computer is sold, that license cannot be legally used by the original purchaser anymore, because it automatically transfers to the new owner. Cisco would have a hard time convincing a court that what they are doing is OK since it's in opposition to what most of the rest of the software/hardware industry is doing. And, as I already stated, it's really completely unnecessary since all Cisco really has to do is make sure that the original version of IOS included with the bundle is a dinosaur, unfit for production use, so that the purchaser of the used router has to immediately license upgrade IOS for it so they can get a legal functional router. Ted _______________________________________________ cisco-nsp mailing list [email protected] https://puck.nether.net/mailman/listinfo/cisco-nsp archive at http://puck.nether.net/pipermail/cisco-nsp/
