[mod.legal] What's going on in Illinois?

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...

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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

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                    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

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 The Bar    |        |        |
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    at    _LAW_      &      _YOU_
                     |
OLD BAILEY           |
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                    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

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Scary stuff, eh?

Tom.