helbekkmo%vax.runit.unit.uninett@NTA-VAX.ARPA (Tom Ivar Helbekkmo) (12/20/85)
Picked up these from Info-Micro, and thought they might be of interest. Don't know how many of you get that list... ---------------------------------------------------------------- Message law:23 - Read From: <rp321@uxa.cso.uiuc.edu> To: <info-micro@brl-vgr.arpa> Subject: Re: Your software rights are in danger Posted-Date: 14 Dec 85 22:41:00 GMT Newsgroups: net.micro Date: 14 Dec 85 22:41:00 GMT Here is the first of two discussions of the Illinois Software License Enforce- ment Act by attorney Keith Hays, Grosser and Hays Law Offices, Champaign, IL. Taken from the Tranquillity II BBS, Urbana, IL, (217)384-8173. (from the TQ II magazine) Russell J. Price USnail: 1111 S. Arbor St. Champaign, IL 61820 /// / Q II ------------------- | | | | THE | The Bar | | | | | | at _LAW_ & _YOU_ | OLD BAILEY | ||||||| ---------------------------------------- The Illinois Software License Enforcement Act Dec 1, 1985 Last week I looked into the application of the general law of Warranty and the Uniform Commercial Code as applied to software purchases. The software publishing industry does not agree with my analysis. The industry takes the position that software is not "sold", but rather it is licensed to the user. While this may seem like arguing about semantics, the resolution of that disagreement can have far reaching results. If the industry prevails in its position, then the general law of implied and express warranties does not apply to computer software distributed through the marketplace. The Illinois Software License Enforcement Act is major victory for the software industry. Although the subject matter is not warranty law, this legislation legitimizes the shrinkwrapped license agreement. Prior to the enactment of this legislation the concealed terms of these so-called agreements was in grave doubt. When it becomes effective on July 1, 1986, the Act will bind the software purchaser to the terms of these hidden contracts. While the language of the act disclaims any application of its terms to alter express or implied warranty law, its implicit definition of the transaction as a licensing arrangement rather than a sale has the effect of drastically reducing the consumers remedy for shoddy and inoperable commercial programs. We, the end users, are in the middle of a conceptual debate. The question is whether a computer program is an article of merchandise or the expression of an intellectual idea. The former concept regards programmatic material as a tool. A hammer, for example is an article of merchandise that has a specific purpose. When you buy that tool, the law recognises that you have the right to expect that it will perform the function for which it was intended. The latter concept regards the program as though it were a composition. Books and works of music may be intended to convey a specific message, but they do not come with a warranty that the reader or listener will derive the meaning that the author of the work intended to convey. When you look at the nature of software, you begin to see the problem. Software is a tool. We acquire it to accomplish a particular function. We part with our cash in the expectation that it will perform its intended task. On the otherhand the courts have held that software is not patentable, but rather it is an article of intellectual property, similar to books and music. Patented devices have a built in protection against duplication. Most of us have not the necessary skill, equipment nor raw materials to duplicate a hammer. Most of us do have the skill and equipment to copy the tools we use on our computers. The evolution of legal mechanisms to protect the legitimate concerns of software developers will require legislative solution. The danger, as represented by the Illinois Software License Enforcement Act is that it will tip the balance of interests between developer and user too far to the developers benefit and gives no protection to the consumer. Indeed, the software company is not only given the protection of the hidden contract terms, but the act encourages lawsuits against individual consumers. The prevailing software company is to be awarded its attorney's fees and costs but the sucessful defendant gets no such reward. The Illinois Software License Enforcement Act is a ticking time bomb, set to go off next July 1. When it explodes, any rights you may have to expect that the program you buy will do what it claims to do, may well be a casualty of the blast -==< * >==- L Keith Hays Grosser Hays Law Office 702 Bloomington Rd Champaign IL 61820 (217)) 352-2784 Message law:24 - Read From: <rp321@uxa.cso.uiuc.edu> To: <info-micro@brl-vgr.arpa> Subject: Re: Your software rights are in danger Posted-Date: 14 Dec 85 22:43:00 GMT Newsgroups: net.micro Date: 14 Dec 85 22:43:00 GMT Here is the second discussion of the Illinois Software License Enforcement Act, by Keith Hays, Grosser and Hays Law Offices, Champaign, IL. Taken from the Tranquillity II BBS, Urbana, IL, (217)384-8173. (from the Magazine section) Russell J. Price USnail: 1111 S. Arbor St. Champaign, IL 61820 /// / Q II ------------------- | | | | THE | The Bar | | | | | | at _LAW_ & _YOU_ | OLD BAILEY | ||||||| ---------------------------------------- The Illinois Software License Enforcement Act, an Anaysis --< Dec 8 1985>- The Illinois Software License Enforcement Act (approved Sept. 25, 1985, effective July 1, 1986) imposes the provisions of a contract by operation of law upon the purchaser of computer software. The law often imposes duties and confers rights upon contracting parties, but in most instances where it does so, those provisions are spelled out by the legislation and provision is made for the exclusion of those terms by the parties in their formation of the contract between them. The provisions of the Uniform Commercial Code concerning the imposition of express and implied Warranty are an example. In this case, the specific terms of the contract which the law imposes are not specified by the legislation, but rather are left to the discretion of the dominate party in the transaction. The legislation permits the software manufacturing concern to draft its own contract and imposes those terms by operation of law. In analysing the effect of the law we must assume that the software manufacturer will impose the most restrictive provisions that are permitted. With that in mind, the following is an analysis of the provisions Section 4 of the Act. Paragraph 1 of the Act insures that title to the software will never pass to the purchaser. This provision will operate in all instances to define the transaction between the manufacturer, retailer and user as a licensing transaction. The impact of this definition has more far reaching consequences than the question of controlling software piracy. The definition of the transaction as a license rather than as a sale will render the provisions of the Uniform Commercial Code inapplicable to the software marketplace unless it is accompanied with additional legislation to protect the user. Paragraph 2 imposes an outright ban on making copies of the software for any purpose. In my view the provisions of Section 7 with regard to the effect of general copyright laws does not alter the effect of this provision. It is axiomatic that the partes may alter the rights provided for by the general law by contract. The provisions of this section are specific to the question of copies and would be construed to limit notions of fair use and the right to make copies. Unless it is the purpose of the legislature to abrogate the general copyright law of the U.S., then this section should read: "Except as permitted by rights granted under the copyright laws of the United States,***". Paragraph 3 limits the right to customise the software to your own purposes. As an example, programs developed for the IBM-PC could not be purchased and adapted for use on the Tandy 1000, even though the purchaser paid the full price for the program and intended only to run it on his own machine. The development of patches and enhancements to published software would be unlawful. Public Domain patches would be a thing of the past. Paragraph 4 would prohibit the transfer of programs by the original retail purchaser. Software libraries could not be sold or given away with the sale of a used computer. Under the terms of the Act, this section's limitation would apply to even to sofware installed in ROM by the equipment manufacturer. It would be unlawfull to sell your used TRS-80 Model 100. Paragraph 5 limits the use of purchased software to one user at one computer. It would make unlawful the purchase of one program disc by a two man office. Paragraph 6 permits confiscation without notice of the program you bought if the manufacturer discovered a violation of any of these terms. Paragraph 7 provides that the user will pay the cost of the company suing the individual user. This provision encourages the manufacturer to file suit against the user for even the most petty violation of the license "agreement!" L KEITH HAYS Grosser and Hays Law Office 702 Bloomington Rd Champaign IL 61820 (217) 352-2784 -------------------------------------------- Scary stuff, eh? Tom.