Hi, everyone:
I promised you my swansong, and I will deliver; however, irk349 asked
for the relevant citations. I believe he should have found them in the
article I posted; but here they are, extracted:
8. In Vault Corp. v. Quaid Software, Ltd., 847 F.2d 255 (5th Cir. 1988)
the Fifth Circuit invalidated on preemption grounds
a state statute that authorized specific license terms in conflict with
the rights created by Section 117. The lower court had
held that, without the validating statute, the contract itself would
have been an unenforceable contract of adhesion under
applicable state law. See Foresight Resources Corp. v. Pfortmiller, 719
F. Supp. 1006 (D. Kan. 1989) (dicta suggesting that
where there was a sale of a copy, rights under section 117 cannot be
eliminated by contract).
For the complete text see: The National Conference of Commissioners on
Uniform State Laws
21. In Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988)
the Appellate Court held that a state statute
specifically authorized detailed terms of a shrink wrap contract was
preempted by federal law to the extent that the license
attempted to bar "reverse engineering" by the "licensee" who "owned" a
copy of the relevant
30} Vault v. Quaid involved the opposite situation. Instead of a state
statute prohibiting certain contractual terms, as in
Warner Bros., Vault featured a state statute that expressly validated a
particular type of contract: the "shrink wrap" license. A
"shrink wrap" license is simply a set of terms printed inside the
heat-shrunk wrapping of the commercial software. These terms
constitute an "offer" that the buyer is said to accept by the act of
tearing open the plastic wrapping. Evidently concerned that
such license agreements could be challenged as adhesion contracts or
invalidated on grounds of unequal bargaining strength,
the Louisiana legislature expressly validated them.[26]
{31} The dispute in Vault arose when a software developer, Vault, Inc.,
produced a computer program called "Prolok" that
rendered other commercial software impossible to copy (a feature desired
by software companies to reduce the "piracy" of
their programs). Relying on the validity of such licenses, Vault sold
Prolok with a shrink-wrap notice that expressly forbade
"reverse engineering" or similar analyses of its copy protection scheme.
{32} Another software company, Quaid, Inc., nonetheless made copies of
the Prolok program precisely to reverse engineer
its anti-copying scheme. Quaid then sold its software that disabled the
Prolok anti-copy mechanism and permitted copying.
Vault sued Quaid for copyright infringement and lost. The court held
that section 117 of the Copyright Act specifically allows
the copying of computer software when such copying is (1) an essential
step in the use of the software and (2) accomplished
as part of the process of running the program. Using this
interpretation, the court found Quaid's actions to be permissible,
even though they violated the license restrictions. The Louisiana
statute that effectively prevented the running of such programs
by validating Vault's license restrictions therefore conflicted with the
Copyright Act and was preempted.
Impact of Warner and Vault
{33} Vault applied copyright's preemption doctrine not directly to a
contract, but rather to a statute that dealt with contracts.
A contract is valid only if state law makes it valid. For purposes of
this article it matters little whether the court's finding of
preemption was directed toward the legislature or toward the parties to
the contract: the result is the same. What would
otherwise have been a valid agreement under state law was struck down on
the grounds that it conflicted with the federal
copyright statute.
For the complete text see: Contracts, Copyright and Preemption in a
Digital World by Trotter Hardy
A believe you'll find four case citations here. If you need more, I'm
sure you can faret them out on the Web yourself, or go to a law library.
I suspect these are only the tip of the iceberg.
>From: "irk349" <[EMAIL PROTECTED]>
>Reply-To: [EMAIL PROTECTED]
>To: <[EMAIL PROTECTED]>
>Subject: Re: jfw authorization disk
>Date: Sun, 21 Mar 1999 19:50:38 -0500
>
> May we have the relevant citations? Bland assertion(s) of what
>constitute(s) the law doesn't do it for this reader.
> M. O. C.
>-----Original Message-----
>From: Charles Lott <[EMAIL PROTECTED]>
>To: [EMAIL PROTECTED] <[EMAIL PROTECTED]>
>Date: Sunday, March 21, 1999 2:22 PM
>Subject: Re: jfw authorization disk
>
>
>>Aaron:
>>
>>I think it advisable at this point for me to back up my statements
about
>>the end-user's archival rights under federal law. I found the
following
>>on the Web, and am posting it for everyone's benefit. It reads as
>>follows:
>>
>>Is It Legal to Copy Computer Software ?
>>
>>You should be aware that under United States Copyright Law you have
the
>>right to make archival
>>backups of your computer software, even if your license agreement
states
>>that you may not make copies
>>for any reason.
>>
>>The federal Copyright Act overides any State law when that law
conflicts
>>with the intentions of the
>>Copyright Act. The federal Copyright Act specifically allows you to
make
>>archival copies of computer
>>software.
>>
>>You should also be aware that you are obligated to obey the rest of
the
>>terms of the license agreement.
>>United States law concludes that the terms of a shrink-wrap license
>>agreement are generally valid, if the
>>purchaser has a full opportunity to read the license.
>>
>>The United States District Court has ruled that software purchasers
may
>>make fully functional backups
>>of their software, even if that software was copy-protected.
>>
>>The United States District Court has ruled that programs which defeat
>>copy protection are legal since
>>they have an acceptable legal use in making archival backups of
>>copy-protected computer software.
>>
>>Related Quotations
>>
>>Is it proper to copy software ?
>>
>>When is it not an infringement to copy computer software ?
>>
>>Result of lawsuit involving software copyright infringement.
>>
>>Federal Copyright Act preempts state shrink wrap license law.
>>
>>Contracts , Copyright and Preemption in a Digital World
>>
>>Copyright infringement lawsuit. Full text of the federal court
decision.
>>Vault Corporation vs Quaid Software Limited
>>
>>
>>Is it Proper to Copy Software ?
>>
>>A good applications software package may take many programmers years
to
>>develop, and can represent an investment of
>>millions of dollars. This investment can only be recovered by selling
>>the software to paying customers. When software is given
>>away free, it makes it difficult for software publishers to stay in
>>business. Doesn't this make it improper to make copies, or to
>>sell copy utilities ?
>>
>>All of the above is an argument against pirating software, not against
>>copying it. The fact is that to stay in business, you must
>>have backups. Whenever the issue of copying comes into a court, there
is
>>no difficulty in obtaining computer professionals to
>>say that backup copies are essential. No case has come to our
attention
>>in which anyone who made backup copies got into
>>trouble with the law, even when he was subject to contract agreements
or
>>license agreements against copying. Cases have
>>come to our attention in which pirates have been successfully
>>prosecuted. In a case in Toronto in which Quaid Software
>>complained, and provided witnesses, a software pirate was sentenced to
>>two years in jail.
>>
>>The copyright laws of the United States, and probably soon of Canada
as
>>well, specifically allow copying of software for
>>archival purposes.
>>Quaid Disk Explorer Manual p.64 July 1987.
>>
>>
>>
>> United States Copyright Act of 1976 Section 117 �
>>Limitations on exclusive rights: Computer programs
>>
>>Notwithstanding the provisions of section 106, it is not an
infringement
>>for the owner of a copy of a computer program to
>>make or authorize the making of another copy or adaptation of that
>>computer program provided:
>>
>> 1) that such a new copy or adaptation is created as an essential
>>step in the utilization of the computer program in
>> conjunction with a machine and that it is used in no other
manner,
>> 2) or that such new copy or adaptation is for archival purposes
>>only and that all archival copies are destroyed in the
>> event that continued possession of the computer program should
>>cease to be rightful.
>>
>>For the complete text see: United States Copyright Act of 1976 Section
>>117 �
>>
>>
>>Result of Lawsuit for Software Copyright Infringement
>>
>>In a parallel effort, Vault Corporation drafted a law which would
ratify
>>the license agreements included with most software
>>sold in stores. The law provided that when certain technical
>>requirements were met, a sale of software would be considered
>>to be a license agreement, the vendor could retain title to the
>>software, and the license agreement could contain a provision
>>forbidding the customer from making backup copies.
>>
>>After drafting the law, Vault Corporation sent lawyers around the
United
>>State searching for a state to pass it. Louisiana was
>>the only state to enact their law.
>>
>>In May of 1985 Vault Corporation filed a suit in the federal court in
>>Louisiana, seeking an injunction preventing sale of
>>CopyWrite, and damages of one hundred million dollars. In October 1985
>>Vault Corporation filed a bankruptcy petition. In
>>spite of the bankruptcy, a hearing on a motion for a preliminary
>>injunction against Quaid was held in New Orleans in April
>>1986, and in February of 1987 Judge Frederick Heebe issued an opinion
>>and an order denying the injunction. In his opinion,
>>Judge Heebe said that the terms of Vault's shrink-wrap licenses
>>prohibiting copying did not apply in this case, since they
>>conflicted with the US copyright laws. A final judgment in favor of
>>Quaid Software was entered in June 1987.
>>Quaid Disk Explorer Manual p.71 July 1987.
>>
>>
>>Federal Copyright Act Preempts State Shrink Wrap License Law
>>
>>8. In Vault Corp. v. Quaid Software, Ltd., 847 F.2d 255 (5th Cir.
1988)
>>the Fifth Circuit invalidated on preemption grounds
>>a state statute that authorized specific license terms in conflict
with
>>the rights created by Section 117. The lower court had
>>held that, without the validating statute, the contract itself would
>>have been an unenforceable contract of adhesion under
>>applicable state law. See Foresight Resources Corp. v. Pfortmiller,
719
>>F. Supp. 1006 (D. Kan. 1989) (dicta suggesting that
>>where there was a sale of a copy, rights under section 117 cannot be
>>eliminated by contract).
>>For the complete text see: The National Conference of Commissioners on
>>Uniform State Laws
>>
>>21. In Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir.
1988)
>>the Appellate Court held that a state statute
>>specifically authorized detailed terms of a shrink wrap contract was
>>preempted by federal law to the extent that the license
>>attempted to bar "reverse engineering" by the "licensee" who "owned" a
>>copy of the relevant software. The lower court had
>>held that, under state contract law, the shrink wrap license was an
>>unenforceable "adhesion contract" in the absence of state
>>legislation authorizing it. The statute created a right denied by
>>federal copyright or patent law without a basis in contract.
>>
>>24. Use and other restrictions in a shrink wrap case deal with a
>>background of intellectual property law that hinges in part on
>>whether the licensee purchased an item containing the intangibles in a
>>"first sale" of the item. Some restrictions on use in the
>>context of a first sale are precluded by federal policy; for software,
>>Section 117 of the Copyright Act gives the owner of a
>>copy of a program certain rights to make back-up copies and
adaptations
>>for personal use of the program.
>>For the complete text see: The National Conference of Commissioners on
>>Uniform State Laws
>>
>>
>>
>>Contracts Copyright and Preemption in a Digital World
>>
>>{23} The Copyright Act expressly provides that in some situations, a
>>state law or right will be preempted, leaving copyright
>>law itself as the only applicable rule.[11] Section 301 of the
Copyright
>>Act preempts any attempt under state law to protect
>>something when two conditions are met. First, the "something" must
fall
>>under the subject matter of copyright as an original
>>work of authorship fixed in a tangible medium of expression. Second,
the
>>state law at issue must provide rights that are
>>"equivalent" to those provided by copyright. In addition to this
>>"statutory" preemption of state law, preemption may also be
>>available under a general analysis relying on the Constitution's
>>Supremacy Clause.[12] This latter approach asks whether a
>>state law "stands as an obstacle to the accomplishment and execution
of
>>the full purposes and objectives of Congress";[13] if
>>so, the state law may be preempted even though the preemption
>>prerequisites of section 301 are not satisfied.[14]
>>
>>{30} Vault v. Quaid involved the opposite situation. Instead of a
state
>>statute prohibiting certain contractual terms, as in
>>Warner Bros., Vault featured a state statute that expressly validated
a
>>particular type of contract: the "shrink wrap" license. A
>>"shrink wrap" license is simply a set of terms printed inside the
>>heat-shrunk wrapping of the commercial software. These terms
>>constitute an "offer" that the buyer is said to accept by the act of
>>tearing open the plastic wrapping. Evidently concerned that
>>such license agreements could be challenged as adhesion contracts or
>>invalidated on grounds of unequal bargaining strength,
>>the Louisiana legislature expressly validated them.[26]
>>
>>{31} The dispute in Vault arose when a software developer, Vault,
Inc.,
>>produced a computer program called "Prolok" that
>>rendered other commercial software impossible to copy (a feature
desired
>>by software companies to reduce the "piracy" of
>>their programs). Relying on the validity of such licenses, Vault sold
>>Prolok with a shrink-wrap notice that expressly forbade
>>"reverse engineering" or similar analyses of its copy protection
scheme.
>>
>>{32} Another software company, Quaid, Inc., nonetheless made copies of
>>the Prolok program precisely to reverse engineer
>>its anti-copying scheme. Quaid then sold its software that disabled
the
>>Prolok anti-copy mechanism and permitted copying.
>>Vault sued Quaid for copyright infringement and lost. The court held
>>that section 117 of the Copyright Act specifically allows
>>the copying of computer software when such copying is (1) an essential
>>step in the use of the software and (2) accomplished
>>as part of the process of running the program. Using this
>>interpretation, the court found Quaid's actions to be permissible,
>>even though they violated the license restrictions. The Louisiana
>>statute that effectively prevented the running of such programs
>>by validating Vault's license restrictions therefore conflicted with
the
>>Copyright Act and was preempted.
>>
>>Impact of Warner and Vault
>>
>>{33} Vault applied copyright's preemption doctrine not directly to a
>>contract, but rather to a statute that dealt with contracts.
>>A contract is valid only if state law makes it valid. For purposes of
>>this article it matters little whether the court's finding of
>>preemption was directed toward the legislature or toward the parties
to
>>the contract: the result is the same. What would
>>otherwise have been a valid agreement under state law was struck down
on
>>the grounds that it conflicted with the federal
>>copyright statute.
>>For the complete text see: Contracts, Copyright and Preemption in a
>>Digital World by Trotter Hardy
>>
>>
>>
>>
>>
>>
>>>From: Aaron Howell <[EMAIL PROTECTED]>
>>>Reply-To: [EMAIL PROTECTED]
>>>To: [EMAIL PROTECTED]
>>>Subject: Re: jfw authorization disk
>>>Date: Sun, 21 Mar 1999 20:13:09 +1000
>>>
>>>Ok this issue is getting old.
>>>Whether you like it or not HJ has the right to copy protect their
>>software whatever way they like.
>>>If you don't like it, you have two options.
>>>Suggest to HJ alternate solutions (don't just bitch that copy
>>protection sucks - they know that already, actually rationally do some
>>research and suggest real implementable solutions that HJ could use
with
>>minimal outlay, - see my previous posts on this subject for ideas)
>>>or vote with your feet and don't buy copy protected software (there
are
>>plenty of screen readers that aren't protected).
>>>HJ's copy protection system (though it has its problems) works pretty
>>well for them.
>>>Most blind people don't have the technical skills to even start to
>>deprotect a program like jfw (the fact that noone seems to have
realized
>>that copyiipc can't be run on anything faster than a 386sx25 without
>>major work tends to support this theory) so HJ have little to worry
>>about by continuing to use their current protection system.
>>>Personally I believe the current system (while not perfect) is far
>>better than some of the other possible alternatives, and we should be
>>happy with what we've got.
>>>HJ is not going to unprotect jfw, nor should they, because of the
>>limited market.
>>>Every copy of JFW counts.
>>>I for one am tired of people wining about the copy protection on jfw.
>>>In most cases the problems with keys on this list are user caused.
>>>and before you get irate about that, I did not say deliberately
caused.
>>>No matter what copy protection system HJ use, there will always be
>>users who will find a way to stuff it up.
>>>If they cpu lock, users will change hardware on a friday afternoon.
>>>If they use a serial number based protection, users will lose the
>>password they need to update.
>>>As soon as you build a better mouse trap someone will come out with a
>>better mouse.
>>>The solution to this is twofold.
>>>HJ could improve the current system, and users could educate
>>themselves.
>>>There will still be inevitable stuffups (I've done things that have
>>killed my key twice and had to reset my count) but forewarned is
>>forearmed. For example, don't play with system utilities you don't
>>understand at a time when having a key is critical.
>>>So, depending on your technical knowledge you should from this point
>>take one of two approaches.
>>>If you consider yourself technically knowledgable then work on a
better
>>copy protection system
>>>and give/sell it to HJ.
>>>If you don't consider yourself technically minded enough to do that,
>>then spend your time educating yourself on how the current system
works
>>and how to avoid the common pitfalls that can cause you to lose a key.
>>>In any case, further bitching to the list isn't really warranted.
>>>Regards
>>>Aaron
>>>-
>>>Visit the jfw ml web page: http://jfw.cjb.net
>>>
>>
>>Get Your Private, Free Email at http://www.hotmail.com
>>-
>>Visit the jfw ml web page: http://jfw.cjb.net
>
>
>
>-
>Visit the jfw ml web page: http://jfw.cjb.net
>
Get Your Private, Free Email at http://www.hotmail.com
-
Visit the jfw ml web page: http://jfw.cjb.net
