davidbrierley@lynx.northeastern.edu (11/17/90)
Some non-lawyers on this net may be guilty of the fraudulent practice of
law (which IS a crime) by telling people that defeating copy protection is
illegal. To those people I suggest reading _How to Copyright Software_ by
Attorney M. J. Salone. I quote:
Under another part of the Copyright Act [17 USC Section 117], the
lawful owner of a program has the right to make a backup copy for personal use.
If the original copy is transferred, however, the copy must also be transferred
with it or destroyed.
Section 117 also gives the lawful owner of a program the right to create
her own derivative work so long as it is for her own personal use. ... She is
completely within her legal rights, as long as she doesn't
-Copy, distribute, display or perform the work itself for commercial
purposes; or
-Sell the derivative copy or give it away.
-End of quote.
As you can see defeating copy protection (i.e. making a derivative work) is
legal as long as the deprotected version is not distributed to anyone other
than the legitimate owner of an original copy. This does not illegalize the
distribution of instructions for deprotection, since these instructions only
allow people to make their own derivative work.
On the subject of shrinkwrap licenses, I quote again:
Software publishers often attempt to use a so-called "shrink-wrap
license" for the purpose of restricting rights of the purchaser. If you've
bought software over the counter, you'll be familiar with the sort of license
that's printed on, or enclosed in, the packaging that says something to the
effect that if you break the package seal, you've agreed to the terms of the
license, which limits your rights to use the software. One common restriction
prohibits the modifying the software in any wat, even for your own usae. A
federal court of appeals struck down a Louisiana statute that authorized this
type of provision on the ground the statute impermissibly conflicted with the
U.S. Copyright Act [Vault Corp. v. Quaid Software, 847 F.2d 255 (5th Cir.
1988)].
Another way software publishers try to restrict the use of over-the-co
counter software is to provide an "up-date" or "warranty" card with the
software. If you sign it, you not only qualify for the warranty protection or
update service offered, but simultaneously agree to the terms of the "Software
Licensing Agreement" included in the package. This sort of agreement is also
not likely to be binding in a court of law.
The warranty offered is often required by law anyway, and the "updates" a
are commonly not really updates, but error corrections which, if uncorrected,
would justify your requesting a refund, or perhaps even suing the publisher
for negligence.
-End of quote.
If certain individuals wish to challenge this I challenge them to put
their money where their mouths are and buy the book. If not they risk being
reported to the American Bar Association and, possibly, being sued or charged.
_How to Copyright Software_ 2nd. ed. 1989 M.J. Salone
Nolo Press, 950 Parker Street, Berkeley, CA 94710
To order, send $24.95 (postage included) to the address above - California
residents add 7% sales tax. Credit card owners can order by telephone:
US 1-800-992-6656
CA (outside 415 area) 1-800-445-6656
CA (inside 415 area) 1-415-549-1976
David R. Brierley
davidbrierley@lynx.northeastern.edu