brian@sdcsvax.UUCP (Brian Kantor) (05/13/85)
Reposted by request from the SDCSRC system:
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# 182 of 187 From: CMD (Chuck Dayton, San Diego, CA)
Date: 18:04 Sat May 11, 1985
Subject: New bill
Lines: 43
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CALIFORNIA ALERT
May 11, 1985
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California Assembly Bill No. 2296 - Computer Software Licensing
Agreements Introduced by Gray Davis (D), former Chief of Staff to Gov.
Jerry Brown, Jr.
This bill has been introduced to the California legislature to make
the "shrink wrap" license associated with microcomputer software a
legal form of contract that is binding on the user! It is being
pushed by the American Electronic Association, a high tech lobbying
association (can ADAPSO be far behind?).
WE SUPPORT THE PRINCIPLES upon which the bill is drawn - the
protection of intellectual property - as well as enforcement of the
current copyright law to protect both authors and publishers. WE DO
NOT SUPPORT THIS BILL as a method of achieving this. The severe
restrictions imposed by most license agreements impinge upon the
normal and ethical use of software in the conduct of daily business.
This is an opportunity to test the effectiveness of electronic
bulletin boards in getting a quick response and influencing
legislation that may have a negative impact on computer users. This
bill affects all of us. Voice your concern to your elected
representatives -- before it is too late!
**** PUBLIC HEARING ****
Set for May 15th in the Consumer Protection Committee, chaired by
Assemblyman Bob Frazee (R).
Let him know your position even before the hearing (in a
respectful manner please - let's not hurt our own case)
Phone numbers: Bob Frazee
(916) 445-2390 Sacramento
(619) 434-1749 San Diego Area.
**** ALSO CONTACT YOUR LEGISLATIVE REPRESENTATIVES ****
For the San Diego Area:
Bill Bradley (489-8924)
Peter Chacon (232-2405)
Bob Frazee (434-1749)
Lucy Killea (232-2046)
Sunny Mojonnier (457-5775)
Steve Peace (426-1617)
Larry Stirling (237-7777)
**** GROUPS TO CONTACT ****
1. Other Bulletin Boards - copy this message.
2. Educational Users - Public School - Colleges (get to the
administrators who are going to have to oversee the terms and
conditions of 100 different contracts (instead of just abiding by
the copyright law)!
3. Research Labs - the scientific community.
4. Your friends using computers in business.
5. Medium and large Industrial users.
6. Other groups?
*****
Larry Atherton & Chuck Dayton (BDG285 The Source) - San Diego, Ca
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# 184 of 187 From: CMD (Chuck Dayton, San Diego, CA)
Date: 18:13 Sat May 11, 1985
Subject: Text of Bill
Lines: 46
What follows is the complete (100 lines) text of a proposed software
licensing bill. See previous message for explanation of importance.
PROPOSED CALIFORNIA SOFTWARE LICENSING BILL
Assembly Bill 2296 introduced March 8, 1985
Author: Gray Davis, (D), former Chief of Staff to Gov. Jerry Brown,
Jr.
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LEGISLATIVE COUNCIL SUMMARY
Existing law does not expressly regulate the use of licensing
agreements for purposes of protecting against unauthorized use of
computer software.
This bill would provide that any person who acquires a copy of
computer software, in certain circumstances, conclusively shall be
deemed to have accepted designated terms in an accompanying license
agreement, if included in the license agreement.
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Section 1. Title 2.2 (commencing with Section 1812.45)
is added to Part 4 of Division 3 of the Civil Code, to read:
TITLE 2.2 COMPUTER SOFTWARE LICENSING AGREEMENTS
1812.45. (a) For purposes of Sections 1812.46, 1812,47, and
1812.48, the term "computer software" means a set of statements or
instructions, to be used, directly or indirectly, in a computer to
bring about a given result, in any form of material object in which
those statements of instructions may be fixed, by any method now known
or hereafter developed, regardless of whether the statements or
instructions are capable of being perceived by or communicated to
humans.
(b) For purposes of Sections 1812.46, 1812.47 and 1812.48, the
term "license agreement" means any written document on which the words
"license agreement," either alone or in combination with other words,
appear prominently at or near the top of that document in such a
position of prominence so as to be readily noticeable to an average
literate person viewing the document.
1812.46. If a written legend is affixed to or packaged with a
copy of computer software in a manner so that the legend clearly and
conspicuously is visible upon a cursory examination of the copy of the
computer software and related packaging, and if the legend is
prominently displayed, in all capital letters and in language which is
readily understandable to an average literate person, and if the
legend states clearly (a) that any use of the copy of the computer
software will constitute acceptance of the terms of an accompanying
license agreement, (b) that any opening of a sealed package, envelope,
or container in which the copy of the computer software is contained
will constitute acceptance of the terms of an accompanying license
agreement, or (c) both (a) and (b), if the legend states that anyone
who receives a copy of the computer software and does not agree with
the license agreement may, within a reasonable period, return the
unused, unopened copy of the software program to the party from whom
it was acquired or to some other identified party for a full refund of
any consideration paid, then any person who acquires such a copy of
the computer software conclusively shall be deemed to have accepted
any and all of the terms of the license agreement which are within the
scope of terms set forth in Section 1812.47 if that person takes the
action which is stated in the legend to constitute acceptance of the
license agreement, provided those terms and the license agreement
conform to the provisions of Section 1812.48 below.
1812.47. Terms which shall be deemed to have been accepted
pursuant to Section 1812.46, if included in any accompanying license
agreement which conforms to the provisions of Section 1812.48 below,
shall include any or all of the following:
(a) Provisions for the retention by the licensor of title to the
copy of the computer software.
(b) Provisions for the prohibition of any copying of the copy of
computer software for any purpose or limitations on the purposes for
which copies of the computer software can be made or limitations on
the number of copies of the computer software which can be made, if
the title to the copy of computer software has been retained by the
licensor.
(c) Provisions for the prohibition or limitation of rights to
modify or adapt the copy of the computer software in any way,
including, without limitation, prohibitions on translating, reverse
engineering, decompiling, disassembling, or creating derivative works
based on the computer software, if title to the copy of computer
software has been retained by the licensor.
(d) Provisions for prohibitions on further transfer, assignment,
rental, sale, or other disposition of that copy or any other copies
made from that copy of the computer software if title to the copy of
computer software has been retained by the licensor.
(e) Provisions for the automatic termination without notice of the
license agreement if any provisions of the license agreement are
breached by the licensee.
1812.48. In order to be deemed accepted pursuant to Section
1812.46, the terms described in Section 1812.47 must be clearly and
conspicuously stated in a license agreement in language readily
understandable to the average literate person, and the license
agreement shall be attached to or packaged with the copy of the
computer software in a manner so that the terms are susceptible to
being readily examined before the act which is deemed to constitute
acceptance occurs.
1812.49. This section is not intended to limit in any manner the
effectiveness or enforceability of any of the provisions of a license
agreement under any other provisions of the law of California.
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(contributed by Atherton & Dayton, San Diego, Ca.)faustus@ucbcad.UUCP (Wayne A. Christopher) (05/14/85)
Could somebody post a short summary of this bill and an argument against it? I couldn't find anything in it that seems objectional, but it isn't that easy to understand the way it is written... Wayne
jpm@BNL44.ARPA (John McNamee) (05/15/85)
>Could somebody post a short summary of this bill and an argument >against it? I'll be happy to provide an argument against it. I'll leave a summary to somebody who is a bit more impartial than myself. I think this bill is total bullshit and I'm in no position to write an unbiased summary. If this bill passes, software publishers can force all sorts of punitive restrictions on the use of software that you buy. They can: * Prohibit you from running the software on more than one machine. I mean "one machine" quite literally. Not just one machine at once, but that the software can be tied to a single system, and if that system happens to go down, you aren't allowed to use the program on another system. * Prohibit you from making backup copies. It will be a violation of the license agreement to safegaurd your data and the program itself from disk crashes. Remember this fact about disks: You don't ask if it will crash, you ask when. * Prohibit you from making patches to the program, or disassembling it. You will not be able to alter the program to suit your needs. You will be at the mercy of the software vendor for all updates and fixes. Do you know what happens when somebody comes to a large vendor asking for a custom change? The vendor either asks them to pay megabucks, or more likely tells them to get lost. This restriction is made worse by the fact that the vendor can (and almost always will) claim that the software is licnesed on an as-is basis, and that they are not required to fix bugs (or if they do provide updates, they can charge a fortune for them). * Prohibit you from selling the program, even if you no longer need it. Can you imagine buying a car or a house under these terms? Once you buy it, you are stuck with it, even if you can't use it. There are many fields that are facing the same sort of problems as the software industry, but they are not trying to solve their problems by passing bullshit laws such as this one. The copyright laws provide all the protection a software company needs to safegaurd their products. Punitive license agreements are not needed, and give the publisher an unfair advantage. The buyer is given no rights, and they assume all the risk. Ask yourself if you would buy anything else under the sort of terms I have detailed above. I sure as hell wouldn't, and I don't think you would either. You may also notice that none of the license restrictions can really be enforced by a software publisher. People WILL make backups (using programs that will break copy protection schemes), they WILL use the software on other than the one machine it is authorized to run on, they WILL patch and disassemble the program, and they WILL sell their copy when they have no further need of it. This law is unenforcable. We don't need another such law on our books, nor do we need a new class of "criminals" who by following common sense have broken some license agreement they never even signed. John McNamee jpm@BNL44.ARPA
jchapman@watcgl.UUCP (john chapman) (05/15/85)
Reading through the bill I don't think it would be
all that objectionable if:
1. backup copies were specifically exempt from
copying restrictions, and
2. the manufacturer was required to guarantee
that the product performs as described
as it is they get the money and buyers get the shaft.faustus%ucbic@UCB-VAX.ARPA (Wayne A. Christopher on tty27) (05/16/85)
But will software producers make use of these restrictions? I don't see anything wrong with allowing them to make any stipulations they want on their products. You don't have to buy the stuff, and if the restrictions are too unreasonable, nobody will buy the stuff and the restrictions will be lifted or the producer will lose money. Would you buy a software product that required that you send flowers to the writer every time you ran his program? Wayne
jpm@BNL44.ARPA (John McNamee) (05/16/85)
>But will software producers make use of these restrictions? Yes. Look at the (currently unenforcable) shrinkwrap licenses that come on many major PC packages. They include the kind of restrictions I listed. >I don't see >anything wrong with allowing them to make any stipulations they want >on their products. You don't have to buy the stuff, and if the restrictions >are too unreasonable, nobody will buy the stuff and the restrictions will >be lifted or the producer will lose money. Would you buy a software >product that required that you send flowers to the writer every time >you ran his program? Cold hard fact of the PC world: If Lotus required users to send flowers to Mitch Kapor every time they ran 1-2-3, people would still buy 1-2-3 in the same quantity they do now. I'm not saying they would send the flowers, they would ignore the license, but they would still buy the product. The same could probably be said about dBASE. A lot of people said that users would never buy copy protected programs, and that the companies that used CP would go out of business. That didn't happen. People will buy the product that does what they want, no matter what strings are attached to it. A lot of those same people will then go out and buy a program to break the copy protection so they can really get some use out of their software. These shrinkwrap licenses aren't going to stop anybody from ripping off software publishers. They will force users into the position where they will be forced to violate their licneses to make proper use of the software they bought.
faustus%ucbic@UCB-VAX.ARPA (Wayne A. Christopher on ttyp3) (05/16/85)
It seems to me that those users that are really interested in getting decent software will not be the ones who buy the junk. They will take the extra trouble to find software with more reasonable conditions attatched to it, or use public domain software, or write their own. The only thing I object to preventing the software manufacturer and the users from making a contract between them that is agreeable to both of them. Wayne
rsellens@watdcsu.UUCP (Rick Sellens - Mech. Eng.) (05/16/85)
It strikes me that this bill is concerned with the enforcability of a license agreement, not it's contents. Software publishers currently have no convenient (and legal) way of administering license agreements. If this bill makes the shrink wrap license legally binding you will have three alternatives: 1. Buy the software just like before, but obey the license agreement. 2. Buy the software just like before and disregard the license agreement just like before. This will be no more dishonourable than breaking current agreements on the technicality that they are not enforcable. (Most oral contracts are unenforcable too, but honourable people honour them anyway.) 3. If the conditions of the license agreement are unacceptable to you, then do not buy the software. Write to the offending publisher and tell them that their product was your first choice, but that their license agreement was the pits, therefore they lost a sale. I feel that software publishers have the right to limit your use of their software by means of a license agreement. The mass market requires a reasonably streamlined method of licensing to keep admin- istrative costs down (and sticker prices too!). A shrink wrap license makes the contents of the license available to the purchaser *before* binding him to it, and therefore seems like a good vehicle to me. Don't get me wrong. I HATE most current license agreements for being too restrictive. I HATE copy protection. I feel that the only reasonable restrictions in a software license are "one machine at a time" and "we cannot be responsible for consequential damages". If we want to change things we have to attack the contents of those agreements, not the vehicle by which they are delivered. Rick Sellens UUCP: watmath!watdcsu!rsellens CSNET: rsellens%watdcsu@waterloo.csnet ARPA: rsellens%watdcsu%waterloo.csnet@csnet-relay.arpa
dmimi@ecsvax.UUCP (Miriam Clifford) (05/16/85)
My understanding is, that if it is not agreeable to both parties there
is no contract. Therefore, one could argue that the shrinkwrap-
enclosed license that you can't read, that says you agree to it if you
open the package, is not a contract. Let's not have any laws that
allow one party to make a contract without the INFORMED CONSENT of
the other party!
{decvax,ihnp4,akgua}!mcnc!ecsvax!dmimi
Mimi Clifford
2535 Sevier St
Durham, NC 27705
919-489-4821 919-684-2854 (Wed)bc@cyb-eng.UUCP (Bill Crews) (05/17/85)
Does this sound like Prohibition to anyone, as it does to me? After all, U.S. society could also outlaw cigarettes, alcohol, etc. By the way, prostitution and grass are illegal -- what purpose does THAT serve? -- / \ Bill Crews ( bc ) Cyb Systems, Inc \__/ Austin, Texas [ gatech | ihnp4 | nbires | seismo | ucb-vax ] ! ut-sally ! cyb-eng ! bc
campbell@DECWRL.ARPA (05/18/85)
I am a founder and vice president of a software house, and I think
this bill stinks.
The problem is that most people, even the honest ones, either don't
bother to read the fine print or ignore it. They make backup copies,
maybe even (gasp!) patch Lotus so they can run it off a hard disk without
tying up a floppy drive, etc.
Today, these (honest) people have nothing to fear, because the only
legal implications are civil, not criminal. If Lotus doesn't like
your patching 1-2-3, they have to find you, then sue you. And they'd lose.
No software vendor has EVER sued a legitimate user who technically violated
a license agreement for legitimate (backup, say) purposes. And I'd bet
serious money they'd be laughed out of court if they tried.
This bill, however, legislates CRIMINAL penalties for such license
violations. That means that all these well-meaning people who are
just following prudent computing practices (making backups) would now be
CRIMINALS, and Lotus doesn't even have to sue -- they can call the cops.
In fact, it doesn't have to be Lotus. Your neighbor, colleague,
ex-spouse, or disgruntled employee, ex-spouse could call the cops.
This bill deserves to die a quick and merciful death.
- Larry Campbell
The Boston Software Works, Inc.
120 Fulton St., Boston MA 02109
UUCP: {decvax, security, linus, mit-eddie}!genrad!enmasse!maynard!campbell
ARPA: decvax!genrad!enmasse!maynard!campbell@DECWRL.ARPACC.GALVIN@UTEXAS-20.ARPA (Pete Galvin) (05/21/85)
I seem to recall reading a very interesting article last year (maybe in BYTE) in which a lawyer stated that, although no one is sure if the shrink-wrap license agreements are legally binding, your best bet is to throw them away without reading them. I guess this comes under the heading "what you don't read can't hurt you". Keep in mind I'm not a lawyer, and don't have the reference in front of me. Anybody know where or when the article came out? --Pete -------
RStallworthy%pco@CISL-SERVICE-MULTICS.ARPA (05/23/85)
[] Someone has entered the text of the bill in this forum. Although a previous comment indicated the bill "legislates CRIMINAL penalties", I see no reference to such penalties in the text entered. Further, since the bill indicates that it is an addition to the civil code, I would not expect there to be criminal penalties connected with the bill. Of course, that does not mean that I like the bill. The shrink wrap "license agreement" referred to in the bill complete with the acceptance and restrictive clauses mentioned, are present in today's software products without such legislation, and as such are attempting to be contracts, except that there is no opportunity to negotiate such a contract, which tends to invalidate them. This legislation would legalize (parts of) such a contract while one of the parties remains effectively unreachable to negotiate the contract. If a contract is what the publisher wants, they could theoretically do this today, by having the contract signed by the purchaser in the store before delivery is taken, and in the case of mail order, sending out contracts for signature in advance of the sale (could be included in advertising even), and not supplying the product until contracts would return. Of course, none that I know of do this today, I presume because it is inconvenient, difficult to enforce (that the retail vendor will get a signed, unmodified, contract), that the retailer might choose to stock other products, or otherwise diminishing the market for the software. All of these relate to there not being two parties to the contract. By the way, I have received software by mail order where the shrink wrap had already been removed. The copyright laws incorporate a clause or doctrine of fair use. I see no such provision in the California law. It has been pointed out that the doctrine of fair use is what permits an act which is technically making a copy of the document from the magnetic (diskette) media which is the original, into RAM (random access memory) inside the computer, because the product cannot be used for its intended purpose without this act of copying. In contrast, the California law makes no mention of fair use, and permits, as one of its clauses in the license agreement, "the prohibition of any copying". I think my biggest complaint with the clauses seem to be that they can be unfair to the legitimate user of the software, and at the same time have very little effect on the spread of pirate copies of the software, which are already a violation of the copyright laws. Prohibitions on modification prevent you from legally making the software work on your machine, if you know how, and on reverse engineering, prevent you from legally finding out how. Prohibitions on transfer, assignment seem inherintly unfair (say you sell your machine and buy a new one -- you can't legally sell your software with it and you can't legally use it on the new machine either), and the prohibition on rental, means that you cannot legally rent a machine either, (unless you purchase the software for that one time use). When looking at the law for creative uses, I note that it applies only to "computer software". One wonders how many things may aquire a piece of software as an inseperable part, merely to prevent their being legally transferrable or modifiable. RStallworthy%pco at CISL