E LAW - MURDOCH UNIVERSITY ELECTRONIC JOURNAL OF LAW ISSN 1321-9447 Volume 10 Number 4 (December 2003) Copyright E Law and author ftp://law.murdoch.edu.au/pub/elaw-issues/v10n4/halbert104.txt http://www.murdoch.edu.au/elaw/issues/v10n4/halbert104.html ________________________________________________________________________ The Open Source Alternative: Shrink-Wrap, Open Source and Copyright Debora Halbert Otterbein University Editors’ Note: The author, Debora Halbert, was a contributor to the first volume of E Law which appeared in 1993-4. She graciously consented to provide this article to help mark the 10th anniversary of the founding of this journal. Contents * Introduction * What Your Software License Says * UCITA and Licensing Agreements * GNU/GPL License * Open Source as an Alternative to Expansive Copyright Protection * Conclusion * Notes Introduction 1. Matthew Zeidenberg bought a personal copy of ProCD’s Select Phone database for around $150.[1] The copy Zeidenberg purchased came inside a shrink-wrapped plastic covering that contained a licensing agreement describing the manner in which the database could be used. ProCD used this shrink-wrap license to bar the use of a personal copy of the database, like the one Zeidenberg had purchased, for commercial use. ProCD spent $10 million compiling contact information from over 3,000 telephone directories across the United States with the goal of selling commercial copies of the database for a price significantly higher than $150. 2. Zeidenberg used the data from Select Phone and another database called Phonedisc to create his own database that he uploaded to the Internet. Zeidenberg did not use the search engine created by ProCD, but created his own search engine for use with the data he had selected. Zeidenberg felt that he had not violated the licensing agreement because he had not used the copyrighted software that came with ProCD’s Select Phone database.[2] ProCD argued that Zeidenberg ignored the shrink-wrap license attached to his copy of the software when he started Silken Mountain Web Services, Inc. to sell the information compiled by ProCD at a cheaper price.[3] ProCD sued Zeidenberg and Silken Mountain Web Services, Inc. for violation of the licensing agreement that barred Zeidenberg from making commercial use of the software he had purchased. The United States District Court held that buyers did not have to obey the terms of shrink-wrap licenses, but the United States Court of Appeals for the Seventh Circuit found that unless the terms of the license are unconscionable, or otherwise excused by contract law, and these terms were not, then the buyer was required to honor the terms of the license.[4] Thus, ProCD successfully argued their SelectPhone database was protected by the shrink-wrap license attached to the product. 3. The applicability of shrink-wrap licensing agreements also became an issue in the Washington state case M. A. Mortenson Co. v. Timberline Software Corp.[5] After the installation of a new operating system rendered their old bidding software inoperable, Mortenson purchased an updated version of Bid Analysis.[6] Mortenson contracted with Timberline Software to install Bid Analysis, a Softworks product, on their Bellevue machines. The parties dispute the facts surrounding who actually opened the software when it was delivered to Mortenson’s Bellevue offices. Regardless of who opened the boxes with the license attached, Mortenson claims they were unaware of the terms of the license because it was installed by Timberline.[7] 4. After the installation of the software, Mortenson used Bid Analysis to bid on a project for Harborview Medical Center.[8] During the bid preparation, the software malfunctioned multiple times and ultimately was responsible for an underbid of around $1.95 million dollars, a fact Mortenson only discovered after winning the contract as the lowest bidder.[9] Mortenson filled suit claiming “breach of express and implied warranties.”[10] An internal memo from Timberline suggests that they knew that the software was flawed and had sent updated copies of the software to some customers, but not to Mortenson.[11] Instead, Timberline claimed the shrink-wrap license that had accompanied Bid Analysis limited liability related to failure of the product and thus neither Timberline nor Softworks were responsible for any loss attributable to the software under the terms of the license agreement. The Supreme Court of Washington State agreed with Timberline and Softworks, applying the rule that, “it is not necessary for Mortenson to actually read the agreement in order to be bound by it.”[12] The court also found that the waiver of liability for design flaws in the software was neither substantively nor procedurally unconscionable.[13] In part, the court was lenient because of the “innovative” nature of computer software.[14] The court ignored the fact that despite knowledge of design flaws that could be remedied, Mortenson had not been provided with the necessary updates to make to software run properly. Instead, including a license surrounding the software packaging waived liability, even when the product turned out to be flawed. 5. In addition to illustrating the power of the shrink-wrap license, both cases also illustrate the use and abuse of software licensing. In the first case, while Zeidenberg’s actions may be construed as unethical, he had attempted to avoid violating Pro CD’s copyright by only using the underlying data in Select Phone and had not used their copyrighted software. Using Feist v. Rural Telecommonucations, where the Supreme Court decided that compilations of facts are not protected under copyright law because they lack the necessary originality to meet the standard for copyright, [15] Zeidenberg’s use of the underlying data in Select Phone should have been legitimate. ProCD’s license was designed to provide them with protection that would go beyond copyright law on an investment that might otherwise be difficult to protect. Regardless of how one feels about the facts in this case, the decision sets a disturbing precedent for the future enforceability of shrink-wrap licenses. Utilizing the analysis of the ProCD court, it may be possible to find the terms of any shrink-wrap license enforceable, a move that shifts protection away from the consumer and towards the producer of software.[16] 6. The second case illustrates how shrink-wrap licenses can be abused. Claiming a clause in a shrink-wrap license absolves a company from liability caused by design flaws in their software is not a responsible business practice. Even though the Washington State Supreme Court validated shrink-wrap licenses, the specific clauses regarding waivers of liability should be inspected more carefully. In this case, Mortenson lost millions of dollars because of software Timberline knew was flawed. At what point does a company become liable for the damages caused by their product? For a software product where the code is copyrighted and unavailable to the buyer of the software, is there an expectation that the program will work as advertised without additional modification? This question is especially important when commercial software may, as in Mortenson’s case, disrupt business dramatically. When it became clear that Firestone tires were responsible for the injury and death of numerous people there was widespread public outrage at their unwillingness to accept responsibility, especially when evidence surfaced that they had known about the problem and had done nothing. However, when it comes to computer software, it would seem that a company may license away liability for flawed software without raising any controversy. 7. Both these decisions highlight the trend towards using licensing agreements that provide stronger protection than copyright law. ProCD suggests a willingness to accept the idea of shrink-wrap licenses. However, shrink-wrap licenses create a catch-22 for software purchasers. One must usually open the wrapping to see the full terms and conditions of the licensing agreement. However, by opening the wrapping, the software buyer has already agreed to the terms and conditions of the license. There should be some question about how enforceable shrink-wrap and click-on licenses can be when the software buyer must either accept the license or return the unopened software package for a refund. However, questions regarding the use of shrink-wrap licenses continue to exist. While some cases have found parts of shrink-wrap licenses invalid, other cases have upheld these licenses. [17] The case law is not uniform and no national-level mechanism exists for enforcing licenses. 8. Neither case discussed here deals specifically with the relationship between licensing agreements and copyright law, but the link between the two is important to investigate because licensing agreements are designed to extend protection for the software producer beyond that offered by copyright law.[18] Copyright is a public law designed to balance the interests of the general public with the copyright owner. However, many copyright owners wish to enhance their ownership rights and have begun to turn to shrink-wrap licenses as a possible mechanisms for further solidifying their ownership in the information age. Companies that sell their products primarily in a digital medium are especially concerned about protecting their rights from possible user infringement because of the ease of duplication of digital products. 9. In reaction to the ease of copying, the software industry and the electronic publishing industry have turned to shrink-wrap and click-wrap licenses, or end user license agreements (EULAs), to shore up the protection offered by the copyright structure. Most computer software buyers may be surprised to know what they have contracted to do when they open software to install on their system. For example, many shrink-wrap licenses claim that the product has been leased, not purchased, making the resell of software subject to the conditions of the license and by-passing the first sale component of the copyright law. Shrink-wrap licensing is another way property rights are expanding in the information age.[19] While there may be a need for licenses to govern some aspects of copyrighted work, the licenses being developed to protect digital content are very expansive. 10. The uncertainty over the scope of shrink-wrap licenses and the problems of enforceability of copyright in the digital age has led the computer industry to push for the development of rules that would make shrink-wrap licenses legally binding in the US. The result was the Uniform Computer Information Transactions Act (UCITA), an Act that would have provided legal enforcement for shrink-wrap licenses if passed in all fifty states. UCITA met with immediate controversy and after three years had only passed in two states. The political controversy surrounding UCITA finally convinced the National Conference of Commissioners on Uniform State Laws (NCCUSL) to halt their support for the measure, an act that will sufficiently limit UCITA’s ability to be passed in any additional states.[20] The “defeat” of UCITA suggests that active resistance to overexpansive laws is possible, but a time consuming and lengthy process. Additionally, the fact that Virgina and Maryland did pass UCITA legislation means that it will continue to impact the way in which the law evolves in the world of licensing agreements. The debate around UCITA and the expansive use of EULAs suggests that we must also consider the licensing counterparts in the open source world – the General Public License (GPL). 11. While the software industry would have us believe that there is no possible alternative to strong copyright and licensing protection, there is an alternative licensing model that has spawned very successful computer software growth. That alternative is open source software and the corresponding licensing that makes open source possible. Open source, much like UCITA, builds upon the copyright law.[21] However, where UCITA attempted to close off all possible uses not authorized by the copyright owner, open source uses the copyright law to encourage the exchange of information to facilitate the development of better software. Not only have the demands of traditional EULAs gone too far, but a case can be made that the GPL model, and open source more generally, is a preferable mechanism for protecting software. At the least, open source is an alternative to contemporary licensing trends that considers the balance between the public and the producer as it provides us with the opportunity to revision copyright law and its relationship to licensing. 12. In the following section I will evaluate the promise of the open source model as a viable path that moves beyond current copyright dilemmas. First, I will look briefly at the types of licensing agreements that come with computer software today. Second, I will describe how UCITA represents a model for licensing that is too expansive and the resistance that has built up to passage of UCITA across the United States. Finally, I would like to evaluate the open source movement’s use of licensing agreements as a potential alternative to the licensing model associated with EULA’s and UCITA. What Your Software License Says 13. It is generally accepted that no one actually reads the software licenses that appear either on the back of the software package, on the inside of the software package, or immediately prior to installing the software on a computer. However, it is not necessary to read the license to be held to the terms of the license. Even if the buyer does read the license, in many cases the software has been purchased and opened before the terms of the license are made available, making return unlikely. Where the license appears on the back of a shrink-wrapped disk the buyer may see the terms, but has no opportunity to view the software and/or content prior to accepting the terms of the license. In other instances, the license may not appear until the installation process has begun. In any case, the buyer is put into the position of accepting the terms of a license without having seen the product it will cover. It is very likely that the consumer will not read the license because they have already bought the software and returning the package unopened without installing the program on a machine would defeat the purpose of the initial purchase in the first place. 14. Software is increasingly distributed as a download from a website where a tangible product never changes hands. If a person is Internet savvy, it is possible to download software from the Internet without worrying about a physical copy of the program. However, for those more comfortable with the purchase of a tangible product, one can still buy software that will contain a CD-ROM version of the program along with documentation on the installation process. 15. Contracts, it would seem, fall outside the realm of original authorship, since nearly all software licenses are not only substantially similar, but tend to use identical language. What this seems to indicate, besides the possibility that all software companies use the same law firm, is that there is a general industry standard for what ought to be protected. The licensing standards are bound by the copyright law, but in several interesting ways go beyond it. For the purposes of this chapter, I examined fourteen different software licenses to get a sense of what the language of contract was, and exactly what consumers were agreeing to when opening or installing a digital product on their computer.[22] Some of these licenses were for educational software and some were for commercial software. Some of the software I looked at was given away for free, and others were very expensive. There was remarkable uniformity between the licensing agreements for all of these types of software. It did not matter if the software was free, for educational purposes, or a commercial product; the terms were surprisingly similar. 16. The licensing agreement is attached to the software and becomes binding in one of several ways. First, there is the shrink wrap license, like the one used by Houghton Mifflin’s Interactive History CD-ROM, which lists on the outside of the software package the licensing agreement and has a small sticker that states, “Breaking this seal indicates your acceptance of the license agreement on the back of this package.”[23] According to these shrink-wrap licenses, once the plastic wrap has been removed from the software, the buyer has agreed to the contents of the license. The only way to reject the license is to return the CD without opening the shrink-wrap, meaning that investigating the content of the CD in order to make an informed choice is impossible. 17. Second, the license may appear on the inside of the packaging and state that installing the software implies acceptance of the license. The WordPerfect Suite 8 uses such a license. Their terms are written on the inside of the CD jacket cover. To read the licensing agreement the software owner would have to open the CD and pull out the jacket cover. For this product, installation or use of the software package activates the contract. 18. Third, if you download software from the Internet the first thing that will appear during the installation process is the license with a button at the bottom that asks you to accept the terms of the contract. If you click on the button to proceed, you have agreed to all the terms listed in the contract. The only other option is to disagree with the license terms and abort the download. At no point will any license, either shrink-wrap, or electronic, give you the option to negotiate the terms of use. It is an all or nothing bargain that has been written to provide the software creator with as many rights as possible over the product and the software user with as few rights as possible. Additionally, you must accept the license prior to viewing the software, an issue we will return to later. Commercial interests and libraries may have more leeway in negotiating the terms of their licenses. Any time a license covers more than one user, the number of machines the product may be installed on and the number of users authorized to use the product at any give time must be negotiated with the software company. 19. The license, usually called an End-User License Agreement (EULA) may include statements that will come as a surprise to many software owners. First, in virtually all cases, the end user has not bought computer software, but has licensed it from the software company. The Adobe End-User License Agreement makes this clear in Section 2 of their license on Copyright, “This Agreement provides the terms and conditions under which you are licensed to use the Software. It is not an agreement for the sale of the Software to you.”[24] 20. So, what exactly is bought when a person purchases computer software? The Corel WordPerfect Suite 8 license agreement clarifies what the software purchaser has actually bought, after highlighting in capital letters that “this is a license not a sale.” They state in Section A under License: “COREL provides you with storage media containing a computer program which may also include “online” or electronic documentation, license, and other printed materials and grants you a license to use the Product in accordance with the terms of this License.”[25] Thus, Corel has provided a storage unit, presumably a CD, which the consumer owns, but the content remains the property of Corel. Apple Computer, Inc. makes the ownership rights clearer. They state, “You own the media on which the Apple Software is recorded but Apple and/or Apple’s licensor(s) retain title to the Apple Software.”[26] 21. Because the software owner is only licensing the product, and not selling it, there are other associated rights that have not been granted. For example, the copyright act recognizes that it would be too unwieldy to control copyrighted works after the initial sale in part because the bureaucratic apparatus necessary to manage all the pre-owned products would be enormous. Thus, the first sale doctrine provides the purchaser of a copyrighted product with certain rights over the product once purchased. While the owner of a book cannot make a derivative work from the book, the owner can lend the book to a friend or sell it to a used bookstore. The first sale doctrine is what allows libraries and used book and record stores to exist because royalties are not acquired from any sale but the initial one. The first sale doctrine is considered an important part of the balance between the rights of the general public and the rights of the copyright owner. The first sale doctrine only partially applies to software. As software became more important, software rental companies were developed that rented software to the general public. Because software can be copied without the original copy leaving the owner, laws were quickly passed that prohibited the rental of computer programs and thus bypassed the first sale doctrine for computer programs.[27] 22. In terms of licensing, there has been a return of the concept of renting software, except this time it is the software developer that rents the program. When computer software is only licensed and not sold, the end user is operating under the conditions of a rental agreement rather than a sale. Under these conditions, the first-sale agreement will not apply because there has been no sale. There are restrictions on what you can do with software you have “bought,” much like you are prohibited from selling a leased car that reverts back to the dealer at the end of the lease. Unlike a book or magazine you have bought and can lend or sell, licensed software may carry conditions for how the product is exchanged after the “first sale.” 23. Many software licenses make it clear that the end user is restricted from engaging in behavior that would be legal under the copyright law. Adobe states in Section 3 on Transfer rights, “You may not rent, lease, sublicense, or lend the Software.” Microsoft uses virtually identical language, “You may not rent, lease, or lend the SOFTWARE PRODUCT.”[28] The Learning Company License Agreement, while making a concession to schools and libraries, something virtually no other software license I looked at does, prohibits the rental or lease of the software, “but schools and libraries may lend the Software to third parties provided the software is in CD format and each end user is given a copy of this License Agreement which will govern the use of such Software.”[29] Even Netscape, a free open source product requires the user not to “… sell, rent, lease, sublicense, or otherwise transfer rights to the Product … without Netscape’s prior written consent.”[30] In each case the rights of the end user to use the product as they see fit have been limited by the license agreement. 24. Houghton Mifflin clarifies how one might be able to let another person borrow your software, or in their case, your electronic primary history sources. You may transfer your license to use the product to another person as long as you permanently transfer the entire product (including all discs, all copies of the soft ware program and all documentation provided in this package) without keeping a copy for yourself. To transfer your license properly, the recipient must first agree to the terms and conditions of this License Agreement. You may not otherwise license, sub-license, rent, or lease the product without permission from the Houghton Mifflin Company.[31] This process of transferring the software to another user may sound a bit awkward, but at least Houghton Mifflin allows the end-use to transfer the software. The RealNetworks, Inc. End User License Agreement does not even allow for the transfer of the software once purchased.[32] 25. These agreements limit the end user’s ability to do anything but use the software package. Of course, most licenses allow the user to transfer rights to the software under the condition that all copies of the program are transferred with the documentation and no copy remains behind. Thus, the language of the license is an attempt by the digital products industries to provide their products with the type of protection that is inherent in books. It is unlikely that a person would photocopy a book prior to lending or selling it to another person. However, perhaps the better analogy is the CD music industry. This is an industry that has relied upon the copyright law to protect its products and has not gone beyond the language of copyright law yet. CD’s may also be subject to copying prior to sale or exchange, but have not yet resorted to shrink- wrap licenses to provide the content owners with additional rights. In part, it could be argued, CD’s have not gone down this road because making a copy of a CD for a friend is not illegal activity under the copyright law. The type of personal copying that people find normal in their everyday life is a challenge to the computer software industry. They do not want their products subject to the first sale doctrine and the only way to avoid this “problem” is to add additional licensing requirements to the sale of the software. 26. While the EULAs tend to focus on controlling the multiplication of products, these agreements do allow the user to make a back up copy of the program. This back-up is the result of negotiation over how digital products would fit within the already existing copyright law. Users were concerned with the possible failure of their product and the digital lobbyists were trying to make all copies of software illegal. The compromise was that the end user would be allowed to make a backup copy.[33] Copyright law provides standards for fair use that are not available under EULAs. Under fair use multiple copies may be made under certain circumstances. For example, if the use is for classroom education it may be considered a “fair” use under the copyright act.[34] 27. Another area covered by most license agreements that is not specifically mentioned in the copyright law, but has been taken up in the Digital Millennium Copyright Act (DMCA), is the idea of reverse engineering. Reverse engineering is the process of taking a finished product and trying to understand how the software code that creates the product works. Despite the fact that the copyright law allows for reverse engineering, all EULAs prohibit reverse engineering of any kind to get at the code of the product. Even Napster, a software program downloadable for free, does not allow the end user to “decompile, reverse engineer, or disassemble, modify, or create derivative works based on the SOFTWARE or the documentation in whole or in part…”[35] Many computer programmers have argued that the ability to reverse engineer or decompile a program, meaning to get to the level of code to see how it works, is an essential aspect of innovation and future production. However, EULAs attached to most software specifically prohibits this process.[36] 28. The licensing agreement does not stop with limitations on the use and sale of the product. There are several other sections of these agreements that should be highlighted. First, virtually all the agreements provide a limited warranty for the software product. These warranties are tricky in their wording and only apply for up to 90 days after the purchase of the software. The key aspect of the warranty agreements is that they only apply to possible defects in the delivery mechanism of the product. Thus, if the CD upon which the computer program is written is melted or broken, then the product will be refunded. However, very few of the software programs extend a warranty to the product itself. The best licensing agreements use language something like Hoffman’s: “HOFFMAN warrants that the Software will essentially conform to all material specifications in the Documentation when delivered to LICENSEE and used in the manner licensed for a period of ninety days…”[37] This license does suggest that the software program ought to work as it has been advertised. Microsoft uses similar language: “Microsoft warrants that (a) the SOFTWARE PRODUCT will perform substantially in accordance with the accompanying written materials for a period of ninety (90) days from the date of receipt…”[38] 29. Some licenses are more restrictive in their warranty language. For example, Apple Computer Inc only provides a warranty on the CD upon which the program is written. “Apple warrants the media on which the Apple Software is recorded to be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of original retail purchase.” WordPerfect’s warranty is similar. “We warrant that the storage media in this product will be free from defect in materials and workmanship for 90 days from the date you acquire it.” Such a warranty provides no protection for the operation of the computer program, it simply ensures the program will not be sold on a damaged disk. 30. While there is some difference in what the warranty covers, there is general agreement upon what constitutes liability. Even though some companies will warrant that their product will work “substantially” like promised, nobody accepts any liability for problems emerging from the use of the product. Typical language is that of Adobe Systems Inc., who state in their Adobe Acrobat Reader agreement that “In no event will Adobe or its suppliers be liable to you for any consequential, incidental or special damages, including any lost profits or lost savings, even if an Adobe representative has been advised of the possibility of such damages, or for any claim by any third party.”[39] The Acrobat reader license also clarifies that the product is being sold “as is,” much like you would buy a piece of damaged furniture on sale at the outlet mall. The difference between the damaged furniture and the Adobe product is, of course, that Adobe makes assertions about how the product will work in the advertising associated with the product and the packaging surrounding the product. Adobe, it may also be assumed, is not selling used goods. 31. The "as is” language appears everywhere. If the computer program you install on your system crashes the hard drive and causes you to lose a day of work, these license agreements claim that the software company is not responsible. The License Agreement for Executive Software(r) International, Inc. perhaps says it most clearly, “ESI does not warrant the functions contained in the software will meet your requirements or that the operation of the software will be uninterrupted or error free. The entire risk as to the quality and performance of the software is with you.”[40] Such a claim, that the quality and performance of a product is not the responsibility of the manufacturer, would make little sense in any other field. Can you imagine the same warranty attached to a Firestone tire? Or a baby crib? However, this software agreement, which must be accepted in order to use the program, contracts away liability on the part of the manufacturer for a defective product. If, for some reason, that product were to wipe out the memory of your office computer, there would be no remedy under the user agreement that was accepted when you opened the sealed package containing the software. 32. Second, these user agreements carry language about the termination of the contract. Generally speaking, if the terms of the agreement are violated in any way, the license can be revoked. This would mean that the user would lose the right to use the software they had purchased, or at least thought they had purchased. The issue of termination for license violations is, of course, difficult to enforce without a mechanism for continual oversight of the users and their uses. Thus, despite the fact that these license agreements create software as a leased product instead of a sold product and stipulate some very specific uses for the product, there has not been much in the way of enforcement. Certainly, software companies have gone after business owners who have violated their licensing agreements by having more people using the software than specified in the license, but the individual end user has been relatively insulated from this type of monitoring. However, the lack of oversight over end users is considered a flaw with the current system, a flaw that UCITA is designed to remedy. 33. As we have seen, the language of the user agreements tends to provide the software manufacturer with more protection than the end user. If nothing else, these end user agreements are testimony to the power of contract. If one person writes terms and conditions that are accepted by another, the courts typically accept this contract as binding. There have been challenges to these EULAs, specifically as unconscionable contracts of adhesion. However, for the most part these contracts go uncontested. The fact that the courts have not ruled definitively on the legality of EULAs has led the software industry to evaluate an alternative, and more concrete, mechanism for protecting their products. In response to the instability of relying on the courts to protect their products, major industry representatives began to establish a legally codified contractual system that would become part of the Uniform Commercial Code for all 50 states. Not only would this provide computer software companies with uniform coverage, something that is currently not available in the state-by-state world we live in, but it would also ensure that the shrink wrap contracts enclosing computer software and digital products would have the force of law behind it. From this beginning, UCITA was born. UCITA and Licensing Agreements 34. The Uniform Commercial Code provided uniform rules for the sale of goods in the United States. UCITA began as a revision to the UCC, Article 2. Article 2b began life in the 1990s to help update the UCC for the information age.[41] UCC Article 2b was initially drafted by the National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Law Institute (ALI), but was completed in July of 1999 after the ALI dropped out of the drafting process due to “irreconcilable concerns and disagreements with fundamental aspects of the proposed law.”[42] UCITA was to be submitted to all 50 state legislatures for approval. 35. Prior to NCCUSL pulling its support for the legislation, only Virginia and Maryland had passed UCITA, while Iowa has passed “bomb shelter” legislation that would protect the state from UCITA.[43] The passage rate has been dismal in part because the ALI is no longer associated with the legislation, but also because strong and organized opposition emerged across the nation to lobby state legislatures to reject UCITA. While companies like Microsoft are strongly in favor of UCITA, most companies that are software consumers, like McDonalds and Nationwide Insurance,[44] have concerns about the impact of the legislation on their businesses. In addition to the resistance of many businesses, library associations, the Society for Information Management, and 32 state attorneys general have condemned UCITA.[45] The American Bar Association working group recently published its report with the main finding being that UCITA is unclear and should be rewritten.[46] As a result, UCITA, while not dead, is languishing.[47] In fact, because of the controversies surrounding UCITA, the National Conference of Commissioners on Uniform State Laws (NCCUSL) has just pulled its support.[48] While UCITA is difficult to read, legal experts have identified many sections of the draft legislation that bode ill for the general public. 36. The first significant problem with UCTIA is conceptual. UCITA, and EULAs more generally, signify a shift away from the public law of copyright to the private law of personal contracts. The privatizing shift in how digital products are protected is important because it eclipses the balancing components enacted in the copyright law. Under copyright law, once the item is sold, its use is determined by the scope of the copyright law. The first sale doctrine and fair use become important avenues for balancing the rights of the content owner with the public. UCITA, following the language of the shrink-wrap licenses discussed in the first section of this paper, defines the scope of a license not a sale. Thus, the product, having never been sold, many not be resold or lent, terms already existing in shrink-wrap licenses. One such right that can now be contracted away is the ability to criticize a product. Offering criticism of a product may be prohibited by license, even though such a practice would be allowed under copyright law as a legitimate and necessary practice that benefits the general public. While the first amendment issues raised by limited criticism are important and should be addressed, they are too broad to fully address here.[49] 37. The shift to privatized agreements leads to a second concern – the ability to use contracts as a form of censorship and anti-competition. For example, Netscape’s license specifically limits criticism without permission. They state, the “licensee may not… (v) publish any results of benchmark tests run on the Product to a third party without Netscape’s prior written consent.”[50] The clause in the Netscape contract suggests that even if it may be in the best interest of the public to know how Netscape performs, it is not necessarily in the interest of Netscape. Thus, the Licensor can attempt to limit knowledge about the product through licensing restrictions. 38. Prohibiting reverse engineering is another way Licensors may attempt to limit competition. Current copyright law allows for reverse engineering, though the DMCA puts restrictions on the publication and reverse engineering of encryption devices. However, if a software engineer wants to find out how a piece of software is put together, much like one might want to see how a radio or an automobile engine works, it is legal for them to do so under the copyright act. UCITA would make reverse engineering a violation of the license, again following the lead of the EULA’s that currently govern computer software. 39. One implication of prohibitions on criticism and reverse engineering, while obviously being good for the Licensor, would be to limit competition and perhaps slow down the rate of innovation. After all, one way innovation occurs is to build upon the ideas produced by others. UCITA attempts to limit the ability of one company to discover how the product of a rival company works. One possible minor repair to UCITA that may stave off some criticism is to allow for some reverse engineering in order to provide compatibility with other computer systems.[51] If this recommendation were pursued, UCITA would be more compatible with contemporary copyright law than it is currently. 40. A third contentious part of the original UCITA proposal was the electronic self-help clause. This clause codified the ability of software owners to create back doors in their programs allowing them to remotely shut down the software if the software license was being violated. Perhaps more than any other aspect of UCITA, the ability to remotely disable a computer became problematic. Not only did the software vendor become the judge of license violations without any neutral third party to assess the claims, but also these back doors represent potential security threats to the companies relying upon the software. There is no guarantee that once a back door is in place it will only be used by the software licensor. Computer users with the skills to crack into the system may also use these backdoors. Because of the controversy raised by the backdoor provisions, in recent talks about how to “revise” UCITA, a ban on electronic self-help has been proposed.[52] While the elimination of the electronic self-help, along with the increased ability to reverse engineer may sound like improvements, the main thrust of the law has not been substantially changed.[53] 41. A fourth concern regarding the use of UCITA is the legal backing it will give shrink-wrap licenses, a licensing agreement that can be considered a contract of adhesion. Contracts of adhesion are agreements drafted by one party and offered on a “take it or leave it” basis. Regardless of the content of the contract, there is no room for negotiation. While some large commercial and library buyers may be able to negotiate over the number of users each license will cover, the mass market EULAs provide no room for negotiation. Generally, the courts have upheld the legality of contracts of adhesion unless the terms of the contract are unconscionable. An unconscionable license would have terms that are unreasonable or excessive. However, in this context, it is disturbing that the Washington Supreme Court did not find the waiver of liability to be an unconscionable term. Thus, there is no guarantee that if UCITA were the law of the land there would be protection for consumers from contracts that take the terms and conditions of their agreement to extremes. 42. When one evaluates UCITA within the context of even broader copyright protection provided by the Digital Millennium Copyright Act, the argument that a property rights discourse has gone too far becomes clearer. The concerns about the future of copyright raised by UCITA are important to consider. UCTIA and shrink-wrap licenses represent a paradigm for protection of digital works that claims property rights are absolute. There is no vision of public exchange, only private ownership. These licensing agreements represent a struggle over how information will be understood, created, stored, and exchanged. Thus, the concerns raised by UCITA are important to evaluate in order to understand how the ever- expanding world of intellectual property stakes out new terrain. 43. Active resistance to UCITA has kept the law from being enacted in most states. It is possible that copyright law, being a federal law, would preempt parts of UCITA. However, if ProCD is a precedent, preemption was not considered a legitimate argument against the use of shrink-wrap licenses. The court reasoned that a copyright created “exclusive rights” that barred those who were strangers to the copyright owner. However, a contract does not create an “exclusive right,” but rather a specific limitation only to the parties involved.[54] While it might be possible that mass market EULA’s that can affect thousands of people are more than individual contractual events, current law does not recognize the potential impact in terms of anything but the individual. Thus, it is possible that copyright law and EULA’s coincide to provide a thicker blanket of protection to the copyright owner. UCITA, while not necessary to facilitate this already existing condition, establishes a clear trend away from protecting the public interest generally and towards protecting the private interest of copyright owners. 44. The vision of the future provided by those fighting to enact UCITA and to entrench EULA’s is one of absolute ownership of information by the content producer and/or software author. As with other political battles to expand intellectual property, the argument by digital content owners frames the issues in absolutist terms. This framework conceals the considerable power of copyright-related industries in the information age. However, there is an alternative to the trend towards cementing copyright ownership with private licensing agreements that better facilitates a balance between the general public and others. This alternative licensing agreement is associated with the open source movement and it is to this movement that we now turn. GNU/GPL License 45. The primary license used to protect open source software is Richard Stallman’s General Public License (GPL). The basic idea behind the GPL is that all computer code designed under the license is available to all users.[55] Programmers can use the code, update it, improve it, or rip it apart. In other words, the user is given all rights to improve the code to their own specifications. However, any and all improvements they make to the code must be contributed back to the general pool of users. GPL is based upon the idea of share and share alike, a fundamental principle learned early in our moral development. This unique part of the GPL ensures that a person cannot privatize portions of the code created by programmers under the GPL and then force others to pay them for use of the code. 46. If a person does not want to share their code, then they can write the entire program themselves. Nobody makes a programmer use GPLed code. Additionally, if a person wants to create a product that will remain proprietary they should not use GPLed code. The GPL is designed to eliminate the ability of proprietary firms to take publicly available code and use it to create private systems. Thus, a software program that is built upon code created under the GPL must also be GPL software. Essentially, Stallman has codified sharing in order to prevent profiteers from stealing from the public domain. The GPL cleverly uses the power of copyright law (which allows the author of the product to control its use and distribution) to provide software for free.[56] In this way he transformed the rules of the game and redefined copyright (what he calls copyleft) into a tool the supports the creator and users of software. 47. It is crucial to remember that the word “free” in this context does not mean an individual must give away their software. Instead, the word “free” is intended to clarify the state of the computer code. The basic problem with proprietary systems in the minds of those dedicated to the open source movement is the lack of free access to the code. To a programmer, lack of access to the underlying code of a program is much the same as prohibiting access to the engine of a car. Thus, much like one should have access to the car engine in order to fine-tune it for optimal performance, so must a software engineer be given access to the source code of a computer program. To be denied access to the source code is to thwart the programmer’s freedom.[57] In order to avoid confusion over what exactly the word “free” should mean, the term open-source, which utilizes the GPL, has grown in popularity.”[58] Open Source as an Alternative to Expansive Copyright Protection 48. Open source technology is based upon a set of fundamentally different principles than proprietary software. First, the building blocks of any open source system, the source code, must be available to anybody. Second, if you use source code that is protected under an open source license you must contribute your code to the community of users. Third, a business makes its money not from the source code, but from its product and the support that is provided for the product. Finally, intellectual property is not a part of the business model, so piracy is not an issue. Thus, by redefining the rules of the game the “problem” of piracy is eliminated and the need for absolutist licensing agreements like those endorsed by UCITA becomes obsolete. 49. In evaluating the potential future of an open source model, it is important to outline the basic premise of open source technology and evaluate how the open source movement creates an alternative to the mainstream method of protecting commercially created projects – primarily copyright law. In this section, I’d like to briefly outline open source philosophy, explain its advantages and disadvantages, and why it offers a promising alternative paradigm for businesses and governments wishing to avoid the more stringent demands of intellectual property and associated licensing regimes. 50. Open source technology has a rich history and shares the philosophy of free exchange and development with many other models including Richard Stallman’s GNU software, shareware, and public domain software.[59] Professors Josh Lerner and Jean Tirole break down the history of the open source movement into three distinct phases moving from the early days of the software industry when all programs were essentially free through the late 20th century when the Internet came to dominate and the Linux phenomenon emerged.[60] Originally, computer software was not proprietary. Instead, computer programmers, mostly working from their homes or Universities, shared computer code as they collectively developed functional software. These original computer designers used the word “hacker” to describe their activities.[61] As computer technology and software developed into a money making enterprise, much of what used to be traded and exchanged freely became the property of companies interested in making a profit on their computer code. 51. Open source recognizes that while programming is a creative art, it is based upon a process emphasizing efficiency and stability. If a person wants to write a program to complete a specific task, it makes no sense to have to rewrite the code for that same task in a different program. Instead, it makes much more sense to copy the already existing code (or improve upon the already existing code) and uses the copy in the new program. Copyright prohibits this functional approach by walling off source code behind proprietary walls. Open source encourages the idea that one should build upon what already exists – even if what already exists was created by someone else. Accompanying the source code is a list of contributors. Thus, open source code can work in the same was as an academic bibliography that lists the many people who contributed their ideas and research to the final product, even if it was only a line or two. In many ways it reintroduces the idea of authorship to software creation. 52. While systems such as open source technology, shareware, and public domain software all operate from the common understanding that there is value in contributing to the public domain with or without compensation, there are differences in these approaches. Shareware is premised upon the idea that a software programmer will distribute his or her program for a contribution and/or registration fee.[62] This particular business model is premised upon trust – it assumes that ethical people will pay for the computer program, but doesn’t worry too much about people who don’t pay.[63] By eliminating the need for marketing and litigation, the programmer can focus on the quality of the program. Shareware programs tend to be smaller projects designed by an individual to meet his or her own needs and then publicized by word of mouth or the Internet to others with similar needs.[64] They serve an unintended consequence in the process, however. Shareware helps build relations of trust over the Internet and also provides the creator with some recognition for the work they have done. 53. Public domain software is different than shareware. Shareware includes a license agreement of some sort and retains copyright for the author. While copyright is automatically assigned to creative work fixed in a tangible form, it is possible to contribute a software program to the public domain. Public domain software is freely available to anyone to use as they see fit – and to appropriate into commercial and private projects that steal these programs from the public.[65] The threat posed by commercial interests for the development of public domain software is part of the motivation behind the General Public License (GPL) and the Free Software Foundation.[66] 54. Open source, while closely linked to Stallman’s GPL, has moved beyond the Free Software Foundation and is most closely associated with the Linux operating system phenomenon. Linux began as many typical hacker projects – in the bedroom of its creator, Linus Torvalds. Torvalds’ project originated from his desire to better learn the capabilities of his newest computer. The earliest postings of Linux were rudimentary. However, Torvalds’ kernel began to develop a following of interested users. At first, there were only a few programmers who would email Torvalds their recommendations. However, as the project developed, additional programmers joined and helped with different components of the code. Emails came in from all over the world. By the time Torvalds was ready to release the official Version 1.0 of his software, Linux was already an international phenomenon.[67] 55. Torvalds took an academic approach to his work. He did not want to be paid for Linux instead, as he put it, I felt I was following in the footsteps of centuries of scientists and other academics who built their work on the foundations of others – on the shoulders of giants, in the words of Sir Isaac Newton. Not only was I sharing my work so that others could find it useful, I also wanted feedback (okay, and praise)…Regardless, I didn’t want to sell Linux. And I didn’t want to lose control, which meant I didn’t want anybody else to sell it, either.[68] 56. Torvalds, in other words, did not oppose the idea of intellectual property. However, while wanting to protect the creation of his intellect, Torvalds was not necessarily motivated by monetary factors. His drive to create Linux did not come from a desire to become a millionaire (though he has become one), but rather from his quest for a better understanding of what he could make his machine accomplish.[69] Torvalds turned to Stallman's GPL license because he was interested in protecting his creation, but not tightly controlling it.[70] As a result, Linux source code remains open, but a variety of companies have built upon Linux to create their own products and enhance the options available to the larger public. In turn, they help improve the Linux source code through their own innovations. The system developed by Torvalds works because instead of focusing on property rights, programmers work together to contribute to something larger than themselves. 57. Computer programming seems to have come full circle since the early days of the software industry with the relative success of the open source movement. Original adherents to the software should be free ideology were marginalized as proprietary software came to dominate the market. The open source movement is moving these programmers back to center stage. In part because programmers create software for more than the love of money, the open source model has been unexpectedly successful. There are advantages to the open source movement that should be seriously considered as an alternative to copyright law and to a growing degree patent law as well. 58. First, and crucial to developing countries, open source software is cheaper than proprietary software. For example, a copy of TurboLinux 4.0, an open source product, sells for around $49 in China today. A copy of Windows 98 is priced at $245.[71] The cost difference makes TurboLinux a more popular seller via legal avenues in China than Windows.[72] However, given the state of proprietary software piracy in China, it is difficult to really assess the market penetration of the Linux system. The difference is that TurboLinux wants the Chinese to “pirate” their software and has handed out thousands of copies in order to create a critical mass.[73] It makes economic sense to use an open source model both as a means of developing an indigenous software industry and as a means of having access to the best software and the best prices.[74] 59. A second advantage of open source is the ability of businesses and governments to tailor existing code to specific needs. Traditional software companies make their profit by retaining all rights over the code that makes the product work. Thus, if a specific feature does not work or tends to crash the machines, a business must wait for the next version of the software and hope the bugs have been fixed. As computer journalist Mark Minasi notes in The Software Conspiracy, software companies feel the end user doesn’t care about quality, only about features.[75] They knowingly ship software with design flaws and bugs that end up costing businesses crucial down time as they attempt to make the new software work. 60. With a proprietary system a company must wait for an upgraded edition to fix problems in the earlier version. The business that has bought proprietary software cannot look at the source code in order to fix problems because the code is the property of the software maker. Thus, the business with a proprietary software package has lost control over their business process because they are forbidden from changing the software. Eric Raymond highlights the problem with the proprietary model for most businesses: The brutal truth is this: when your key business processes are executed by opaque blocks of bits that you can’t even see inside (let along modify), you have lost control of your business. You need your supplier more than your supplier needs you – and you will pay, and pay, and pay again for the power imbalance. You’ll pay in higher prices, you’ll pay in lost opportunities, and you’ll pay in lock-in that grows worse over time as the supplier (who has refined its game on a lot of previous victims) tightens its hold.[76] 61. The open source model, by contrast allows the business to use the source code to build a better product. With open source, the building blocks are available and can be manipulated to by the software owner (not copyright owner) to best suit the needs of the business and/or government office. Because most software is created to be used by business, government, or private citizens to make their own computers run smoothly, the ability to change the code is an important “right” granted to the software buyer. Given that most users want workable software, open source software provides more flexibility for the end user. 62. Additionally, what open source companies provide is support as you develop your products. Control over software reverts to the business owner instead of the software owner. As Raymond points out, Contrast this with the open-source choice. If you go that route, you have the source code, and no one can take it away from you. Instead of a supplier monopoly with a chokehold on your business, you now have multiple service companies bidding for our business – and you not only get to play them against each other, you have the option of building your own captive support organization if that looks less expensive than contracting out. The market works for you.[77] 63. Thus, the open source option can provide a comparative advantage to a business that needs specific software tailored to specific needs. According to open source advocates, at least 75% of computer programming is done in-house as software engineers and systems operators do what is called “vertical maintenance” for their systems.[78] This type of work takes long hours and quite a bit of programming time. Open source provides all programmers with access to a vast toolbox from which to draw code when writing these types of software that will make any business more efficient. 64. Furthermore, unlike some proprietary packages that have backdoors that allow the software vendor to deactivate the program if they feel it violates the licensing agreement, open source software becomes the property of the company.[79] In return for the flexibility of the open source system, the company must contribute its source code to the general community of users. The company also has access to the programs that can improve the functionality of their own systems. 65. A third advantage of open source technology is that the resulting products are substantially more stable and bug free than their proprietary alternatives. Linux followed a truly revolutionary and anarchistic development model. Thousands of programmers around the world donated their time, creativity, and energy to the project. With thousands of programmers, each focused on the type of code that most interests him and/or her; the end result would inevitably be excellent. This code is continually built upon as new uses are developed and as bugs are fixed. Torvalds continues to devote a substantial portion of his time updating Linux. He remains quite involved in the decisions of what will be included in the operating system. However, he does so in a way that allows for users to decide on the best features. Essentially, he lets the people who deal with the system on a daily basis decide what works best. The final result has been a stable and well-built system. 66. A fourth important advantage of open source technology over the prevailing intellectual property paradigm is the fact that licensing is much easier and facilitates the exchange of information and innovation of code. Open source technology does not come with monopolistic licenses that require high costs for installing the software or operating systems. Major computer manufacturers in the United States have adopted Linux ports because the licensing is less difficult than it would be with proprietary software. Additionally, contracts of adhesion that govern the proprietary software market in the form of shrink-wrap licenses (which state that once the product has been opened you agree to the terms of the license before you have installed the program on your system.) are not a part of the open source paradigm. Open source, with its less restrictive licenses and its collaborative framework establish an ideal setting for growth in software development in areas outside the U.S. who would like to remain independent of powerful American software interests. As the COO of MIMOS, a Malaysian computer company said, “In the Malaysian context, this translates into the enablement and propagation of creative and innovative software development activities in a collaborative manner over the Internet."[80] In the words of Rob Hart, an executive at Red Hat Asia-Pacific, “Open source levels the playing field by breaking down the entry barriers put up by proprietary software companies.”[81] 67. Finally, the open source movement is an important alternative model to the global standards established by TRIPS and the WTO as well. These organizations, and the private policing forces of the technology industry like the Business Software Alliance (BSA) and the Software Information Industry Association (SIIA), are enormously concerned with intellectual property piracy. The SIIA’s research suggests that 51% of software in Singapore was pirated in 1999 resulting in US $61,758 million lost.[82] The total loss in the Asia/Pacific region, according to the SIIA, was US $2,791,531 billion. While the SIIA does not publish its methodology it is clear that a significant amount of money is thought to be lost. Virtually all international agreements and organizations are devoted to stamping out piracy, a type of piracy that does not exist in the open source model. 68. The elimination of piracy is perhaps one of the most interesting advantages of the open source philosophy. It is only possible to ‘steal’ information under open source if you fence it off and do not allow others to use it. Contrast this understanding of piracy with the more traditional definition – which defines any unauthorized use as an act of theft. When choosing a future path, it is best to choose one that will benefit society as a whole. There seems to be some evidence to suggest that open source is a viable and advantageous path to follow. As an alternative, the open source model will eliminate piracy without the huge buildup in police power necessary for the current anti-piracy campaigns. 69. Ultimately, the open source movement provides us with an avenue to assess who benefits and who loses from contemporary intellectual property regimes. It is clear that TRIPS was designed to primarily benefit businesses in the global north, with the United States being the primary beneficiary.[83] h If stronger intellectual property rights will help developing countries at all, it will only be when they have reached a sufficient level of development to support local industries. Until that time, developing economies will benefit more by being able to mimic and reverse engineer technologies from developed countries, both activities that have become much more difficult under contemporary international regimes. 70. The open source alternative also helps illustrate the problems inherent in the proprietary system. Strong property barriers provide monopolists with the ability to charge the maximum amount for that property. However, open source is a philosophy that emphasizes the good of the community over the good of the individual. It recognizes that many creative people innovate for the challenge and willingly share their creations with others. This type of value system is the one that ought to be emphasized in the economic realms of technology. Thus, open source as a philosophy, while currently focusing on software development, is a model that could be applied to a variety of structures. For example, it may be useful to apply some sort of open source model to drugs necessary to halt the spread of AIDS. It is also very likely that music is an open source community that contemporary intellectual property laws have forced into a proprietary model. 71. The open source phenomenon could be the beginning of a substantially different information technology future premised upon a non-proprietary model of sharing. Instead of centralizing ownership in the hands of a few wealthy individuals, open source decentralizes ownership and in the process builds upon the creative energy of thousands. Open source, because contributions must be made available to the larger community, serves a public function. Once part of the open source community, contributions help everyone. As an industry in its infancy, it has problems that must be worked out. However, without being given the chance to develop into its full potential, we will never know how important open source may be. 72. In response to the “threat” posed by open-source to its own monopoly power, Microsoft has launched a full fledged attack against the idea, thus there is reason to be concerned that we will never see the full potential of the open source system. In February of 2001, Microsoft Windows operating-system chief Jim Allchin warned United States lawmakers “open source is an intellectual-property destroyer. I can’t imagine something that could be worse than this for the software business and the intellectual-property business.”[84] He went on to say, “I’m an American, I believe in the American Way. I worry if the government encourages open source, and I don’t think we’ve done enough education of policymakers to understand the threat.”[85] In May of 2001, Senior Vice President of Microsoft, Craig Mundie took up the topic of open source technology. He publicly denounced open source software as instrumental in the destruction of many of the dot-coms, a security threat, and unsuitable for the mass market.[86] Additionally, the license agreement accompanying Microsoft’s Mobile Internet Toolkit software (in its second beta version) specifically prohibits the use of their software with any software licensed under the General Public License (GPL).[87] Microsoft calls all open source software “viral” software and prohibits users of their new toolkit from developing any programs that will contain open source code.[88] Such statements from arguably the most powerful Software Company in the world are curious. Many people interpret Microsoft’s public comments to mean they are feeling the threat of open source technology. This position is supported with evidence from Microsoft’s internal communications.[89] 73. In part, Microsoft was responding to the growing popularity of open source technologies. The Linux operating system and products using the open source model like Apache and Red Hat are developing sizable market shares.[90] Red Hat has successfully negotiated agreements with IBM, Intel, Dell, and Compaq and now has an international presence with offices throughout the globe.[91] Additionally, the US President’s Information Technology Advisory Committee recommended that the federal government back “open source software as an alternate path for software development.”[92] Thus, not only is Microsoft responding to the increasing popularity of the software, but to the fact that it begins from a radically different set of assumptions about what motivates people to create, what makes a successful business model, and how to realize the best possible software.[93] Conclusion 74. Despite the opposition from Microsoft, the idea of open source and the GPL has continued to gain power. Open source has become a worldwide phenomenon with countries around the world establishing their intent to shift government functions to open source technology. It is yet to be seen how successful the open source movement will be in reclaiming computer code as an intellectual commons, but it is clear that as a pragmatic approach to future development, the method has much to offer. 75. Interestingly, the idea of open source has become popularized in a variety of intellectual property related fields.[94] For example, Salon.net is attempting a publishing experiment following the open source model where it posts chapters from a book on open source for outside criticism and discussion. The author of the book then uses the discussion when revising the chapters. Additionally, at the same time many colleges and universities are beginning to privatize their curriculum, MIT has begun an experiment as an open source University where all its curriculum and coursework is available on-line. One would not even have to be a student to learn at MIT. Other small experiments abound like the music website where public domain beats and songs are available to future creation. Finally, numerous groups and individuals are working on licensing agreements that will protect copyrighted works as open source works available in the public domain or as some sort of hybrid. Thus, the open source idea is spreading and becoming popularized. 76. In creating a vision for a future that is not governed by the strict licensing agreements of shrink-wrap commercial software and UCITA, open source is an important alternative. It has politicized and popularized the idea that sharing continues to have value in a world gone made over property rights. As the world of intellectual property is re-thought by its critics, the work of the open source movement is a critical step in the process. While it may be impossible to reject the current trajectory of increased protection, resistance such as that created by open source is important if an alternative world is possible. Notes [1] ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1449 (7th Cir. 1996). [2] RE: My Day in Court (ProCD v. Zeidenberg), September 25, 1995, Available at: http://www.cni.org/Hforums/cni-copyright/1995-03/0823.html (last visited August 6, 2003) (email from Zeidenberg). [3] ProCD, Inc. v. Zeidenberg, at 1450. [4] Id. at 1455. [5] Mortenson Co. v. Timberline Software Corp., 140 Wash. 2d 568, 998 P.2d 305 (2000). [6] Id. at 572. [7] Id. at 575. [8] Id. at 576. [9] Id. at 576. [10] Id. at 576. [11] Id. at 576. [12] Id. at 584. [13] Id. at 585-586. [14] Id. at 586. [15] Feist v. Rural Telecommunications, 506 U.S. 984. [16] Kevin W. Grierson, Enforceability of “Clickwrap” or “Shrinkwrap” Agreements Common in Computer Software, Hardware, and Internet Transactions, 106 ALD 5th 309 (2003). (Suggesting that while there remains division over the validity of shrink-wrap and click-wrap licenses most courts are upholding these licenses). [17] Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988) (finding that the prohibition against reverse-engineering in the shrink-wrap license was preempted by federal law); Step-Saver Data Sys., Inc. v. Wyse Tech., 939 F.2d 91 (3d Cir. 1991) (finding the warranty limitations in the shrink-wrap agreement invalid because the agreement on price had been established prior to the plaintiff receiving the shrink-wrap agreement and plaintiff had never agreed to the additional terms in the shrink-wrap license); Arizona Retail Sys., Inc. v. Software Link, Inc., 831 F. Supp. 759 (D. Ariz. 1993). (finding that a shrink-wrap license does not apply to additional software bought over the phone after the initial software purchase). For additional case analysis see: Grierson, 106 ALD 5th 309. [18] Cynthia M. Bott, Protection of Information Products: Balancing Commercial Reality and the Public Domain, 67 U. CIN. L. REV. 237, 239 (Fall 1998). (arguing that for databases, licenses can provide protection where copyright law may not.) [19] It should be noted that federal preemption should provide copyright law with precedence over conflicting state laws. However, the boundaries between contract and copyright remain blurred. See: Jonathan Band, Closing the Interoperability Gap: NCCUSL’s Adoption of a Reverse Engineering Exception to UCITA, [19] THE COMPUTER AND INTERNET LAWYER 1 (May 2002). [20] Patrick Thibodeau, NCCUSL Pulls Support for Controversial UCITA Law, Computerworld, August 1, 2003. Available at: http://www.computerworld.com/governmenttopics/government/legalissues/story/0,10801,83676,00.html. [21] David McGowan, Intellectual Property Challenges in the Next Century: Legal Implications of Open-Source Software, 2001 U. ILL. L. REV. 241, 242 (2001). [22] I am using the word digital product because while computer software is attached to all products that will be installed on a computer, many products also include content, such as an encyclopedia or a math program that can only be viewed using a software product. Thus, the copyright owners are concerned not only that the computer software that allows the user to run the product on their computer is protected, but also that the content that is viewed is protected as well. [23] Software agreement on file with author. [24] Adobe End-User License Agreement. On File with author. [25] Id. [26] Apple Computer, Inc. Software License Agreement. 1999. On file with author. [27] Computer Software Rental Act of 1980. 17 U.S.C. 109(b)(1)(A). (libraries are exempted from this section of the act.) [28] End User License Agreement for Microsoft Software. On file with author. [29] The Learning Company License Agreement. On file with author. [30] Netscape Client Software End User License Agreement. http://home.netscape.com/download/client.html. (last visited August 6, 2003). On file with author. [31] On File with author. [32] REALNETWORKS, INC. End User License Agreement. On file with author. [33] The one-copy rule is one part of the much larger debate over what constitutes copyright in the digital age. The hearings and discussions leading up the Digital Millennium Copyright Act asserted that every time a software program or image was brought into the RAM of a computer and copy was made and permission would be necessary to view the item. While this assertion makes everything we do on the internet a violation of copyright law, it was the operating assumption of the working group charged with changing the copyright law for the digital age. For an excellent account of the debate and the process see: JESSICA LITMAN, DIGITAL COPYRIGHT, (Amherst: Prometheus Books, 2001). [34] 17 U.S.C. § 107. (Section 107 assesses the following criteria in determining the appropriateness of the use: 1) use must not be commercial in nature; 2) context of the copyrighted work; 3) amount of work used in relation to the whole; 4) effect on the market value of the copyrighted work. [35] Napster, Inc. End-User Software License Agreement. On file with author. [36] The reverse-engineering prohibition in shrink-wrap licenses was found unenforceable in Vault Corp. v. Quaid Software Ltd. The Louisiana Software License Enforcement Act that ensured the enforceability of shrink-wrap licenses was federally preempted because decompilation and reverse engineering are allowable under federal law. Vault Corp. v. Quiad Software Ltd., 847 F.2d 255, 7 U.S.P.Z 2d (BNA) 1281 (5th Cir. 1988). [37] Hoffman Enclosures Software License Agreement. On file with author. [38] Microsoft End User License Agreement. [39] Adobe Systems Incorporated. Electronic End User License Agreement for Adobe Acrobat Reader. On file with author. [40] Executive Software(r) International, Inc. Software License Agreement for Diskeepr. On file with author. [41] Brian D. McDonald, The Uniform Computer Information Transactions Act, 16 BERKELEY TECH. L.J. 461 (2001). [42] Id. at para 4. [43] Id. at para 8-21; Casey Lide, UCITA: A Challenge to Traditional Licensing Policy? 35 EDUCAUSE REVIEW 60 (July/August 2000). [44] Maryfran Johnson, Stomp Out UCITA, 35 COMPUTERWORLD 24, November 19, 2001. [45] Patrick Thibodeau, UCITA Backers Hatch New Plans for Adoption Push, 36 COMPUTERWORLD 7 June 10, 2002. [46] Judge John Vittone, Chair, American Bar Association Working Group Report on the Uniform Computer Information Transactions Act (UCITA) http://www.abanet.org/ucita/report_on_ucita.pdf, January 31, 2002. [47] Ed Foster, UCITA, the Undead, 24 INFOWORLD 72, May 6, 2002. [48] Patrick Thibodeau, NCCUSL Pulls Support for Controversial UCITA Law, COMPUTERWORLD, August 1, 2003. Available at: http://www.computerworld.com/softwaretopics/software/story/0,10801,83676,00.html. (last visited August 6, 2003). [49] Alan Garfield, The First Amendment as a Check on Copyright Rights, 23 HASTINGS COMM. & ENT. L.J. 587 (Spring 2001); William W. Van Alstyne, The Public Domain: Reconciling what the First Amendment Forbids with what the Copyright clause Permits: A summary Explanation and Review, 66 LAW & CONTEMP. PROB. 225 (Winter/Spring 2003). [50] Netscape Client Software End User License Agreement. On file with author [51] Patrick Thibodeau, UCITA Backers Hatch New Plans for Adoption Push,” (June 10, 2002) 36 Computerworld 7. [52] Thibodeau, UCITA Backers, at 7. [53] Id. [54] ProCD v. Zeidenberg at 1454. [55] There are other versions of licenses based upon the idea of the GPL. [56] The story goes that Stallman founded the Free Software Foundation in 1984 when the manufacturer of his printer refused to give him access to the source code so he could fix the printer problems himself. See: ROBERT YOUNG AND WENDY GOLDMAN ROHM, UNDER THE RADAR: HOW RED HAT CHANGED THE SOFTWARE BUSINESS—AND TOOK MICROSOFT BY SURPRISE, 20-21 (Scottsdale, AZ: The Coriolis Group, 1999). [57] http://www.fsf.org [58] Eric Raymond, The Cathedral & the Bazaar, p. 69. [59] In fact, open source and Stallman’s GNU philosophy have merged for all intents and purposes. [60] Josh Lerner and Jean Tirole, The Simple Economics of Open Source. NBER Working Paper Series. Cambridge, MA: National Bureau of Economic Research, 4-9 (March 2000). [61] Eric Raymond describes much of the hacker culture via the language used by hackers in The New Hacker’s Dictionary. See: ERIC RAYMOND, ED. THE NEW HACKER’S DICTIONARY, (Cambridge and London: MIT Press, 1991). Steven Levy also describes early hacker culture as including the central tenant: “All information should be free.” See: STEVEN LEVEY, HACKERS: HEROES OF THE COMPUTER REVOLUTION, 27-31 (Garden City, NY: Anchor Press, 1984). As many hackers are quick to point out, there is a difference between using the internet to steal a person’s credit card number or setting up a site to pirate copyrighted software (crackers and warez) and developing useful computer programs. Hackers see themselves as the latter and make a clear distinction between the former criminal activities and their own innovative activities. Despite the demonization of the term hacker and the relatively marginalized lifestyle of hackers, their impact upon technology has been profound. The term “hacker” later took on negative connotations as the mainstream media and law enforcement appropriated the word to cover all types of computer crime. See: Debora Halbert, Discourses of Danger and the Computer Hacker, 13 THE INFORMATION SOCIETY, 361, 361-374 (1997). [62] Bob Wallace, Shareware Goes Formal, in PUBLIC DOMAIN SOFTWARE: UNTAPPED RESOURCES FOR THE BUSINESS USER, 109-11, Rusel DeMaria & George R. Fontaine, Eds. (Redwood City: M&T Publishing, 1988). [63] DeMaria and Fontaine, PUBLIC DOMAIN SOFTWARE, p. 63. [64] For example, I use a shareware program called Gradekeeper for my grades. This program was written by a college professor who wanted use the computer to calculate his grades. He then put the program online where it can be downloaded. If you like the program he requests you send him $20 (which I have done). [65] STEPHEN FISHMAN, THE PUBLIC DOMAIN: HOW TO FIND COPYRIGHT-FREE WRITINGS, MUSIC, ART & MORE, (Berkeley: Nolo, 2000). While Fishman is concerned with describing how to make the best use of the public domain, he also discusses piracy from the public domain. Additionally, one of the earliest lessons in copyright came when AT&T, which had been developing UNIX in a collaborative manner with academics around the country, decided that they would assert proprietary control over the operating system. They began to require licensing fees from Universities that had been using it freely and contributing to its evolution. Needless to say, feelings of betrayal ran high. For an account of this story see: Eric Raymond, THE CATHEDRAL & THE BAZAAR, at 12-15; Robert Young and Wendy Goldman Rohm, at 21-22. [66] Richard Stallman’s website is: http://www.gnu.org/copyleft/gpl.html [67] For a first-hand version of the development of Linux see: LINUS TORVALDS AND DAVID DIAMOND, JUST FOR FUN. SEE ALSO: ERIC RAYMOND, THE CATHEDRAL AND THE BAZAAR; ROBERT YOUNG, UNDER THE RADAR. [68] Torvalds and Diamond, at 94. [69] Torvalds has his own theory of why programmers will spend so many hours working on a project. He argues that first we complete tasks for survival purposes. Once these survival objectives are met, we can develop social purposes for our tasks. Finally, we evolve into creatures that pursue a project goal for the fun of it. Thus, entertainment for Torvalds is a high evolutionary form and one that motivates hackers to spend the type of hours they do in front of a computer. For a better description of his philosophy see his introduction to PEKKA HIMANEN, THE HACKER ETHIC: AND THE SPIRIT OF THE INFORMATION AGE, (New York: Random House, 2001) or his description in Just for Fun, p. xvii – xxii. [70] Torvalds, Just for Fun, p. 96. [71] John Lettice, TurboLinux Outsells Windows in China, WIDEOPEN NEWS, January 7, 2001. Available at: http://www.wideopen.com/theregister/363.html. Wideopen News is a Red Hat publication, thus they have an interest in publicizing this specific issue. Other sources put the cost of Windows 98 in China at $90 and the cost of Red Hat Linux at around $10. See: Belinda Rabano, The Penguin Takes Flight, ASIAWEEK, September 8, 2000, 64. [72] Lettice, 2001. [73] Anne Speedie, TurboLinux CEO Follows Amazon’s Lead, WIDEOPEN NEWS, April 13, 2000. Available at http://www.wideopen.com/story/731.html [74] Almost all banks in China, for example, use the Linux operating system for security and cost reasons. China is also trying to enhance its domestic software production instead of buying Microsoft products. Chinese Experts Back Dumping of Microsoft, THE STRAITS TIMES (SINGAPORE), January 12, 2002. [75] MARK MINASI, THE SOFTWARE CONSPIRACY: WHY SOFTWARE COMPANIES PUT OUT FAULTY PRODUCTS, HOW THEY CAN HURT YOU, AND WHAT YOU CAN DO ABOUT IT, (New York: McGraw Hill, 2000). [76] Raymond, The Cathedral and the Bazaar, p. 152. [77] Id., at 152. [78] Jobs for Hackers: Yes, You Can Eat Open Source, OPEN SOURCE, Available at: http://www.opensource.org/advocacy/jobs.html (last visited August 6, 2003). [79] Mark Minasi covers several different licensing scenarios including the shut down of a computer system for failure to comply with the license. Software companies have built backdoors that allow them to see how the purchaser of the product is using the product. See: MINASI, THE SOFTWARE CONSPIRACY, at 77-80. [80] Lee Min Keong, Showfloor: LinuxWorld Malaysia Shows OS Potential, ASIA COMPUTER WEEKLY (November 27, 2000). [81] Id. [82] Software Information Industry Association, SIIA’s Report on Global Software Piracy 2000, Washington D.C., 2000. [83] PETER DRAHOS AND JOHN BRAITHWAITE, INFORMATION FEUDALISM: WHO OWNS THE KNOWLEDGE ECONOMY? (New York: The New Press, 2002). (documents the creation of TRIPS emerging from the work of about 50 U.S. individuals with international business interests). [84] Microsoft Exec Calls Open Source a Threat to Innovation, THE BLOOMBERG NEWS, February 15, 2001. Available at: http://news.cnet.com/news/0-1003-202-4833927.html [85] Id. [86] Ben Charny, Microsoft Raps Open-Source Approach, CNET NEWS.COM, May 3, 2001, Available at: http://news.cnet.com/news/0-1003-202-5813446.html [87] Stephen Shankland, MS Lawyers Join Open-Source Fray, ZDNET, June 22, 2001, Available at: http://www.zdnet.com/zdnn/stories/news/0,4568,5093151,00.html?chkpt=zdhpnews01. [88] Id. For a copy of the license for this software see: http://msdn.microsoft.com/downloads/eula_mit.htm [89] Internal documents known as the “Halloween” papers outline the perceived open source threat. These documents are available on-line at: http://www.opensource.org/halloween/halloween1.html and http://www.opensource.org/halloween/halloween2.html [90] Apache is used on around 63% of Web servers and Linux on 36% of Web servers. See: Steve Lohr, Can ‘Open Source’ Bridge the Software Gap? NEW YORK TIMES, August 8, 2000. Available at: http://www.nytimes.com/library/tech/00/08/biztech/articles/28code.html [91] YOUNG AND ROHM. [92] Lohr, 2000. [93] In June of 2001 Bill Gates suggested that he isn’t against open source per se, but rather he thinks people need to be aware of exactly what the GPL does for proprietary systems. There should be “a rich ecosystem” of “free software and commercial software.” See: Mike Ricciuti, Gates Wades Into Open-Source Debate, CNET NEWS.COM, JUNE 19, 2001. Available at: http://news.cnet.com/news/0-1003-200-6322264.html. In response to criticisms of open source, innovators including Linus Torvalds and Richard Stallman published a joint statement in which they defended the terms and conditions of the General Public License (GPL). See: Bruce Perens, et. al. Free Software Leaders Stand Together, May 15, 2001. Available at: http://perens.com/Articles/StandTogether.html. [94] See: Scott Rosenberg, Free Software Project, http://www.salon.com/tech/fsp/index.html. See also the “Free Software Story,” http://www.salon.com/tech/special/opensource/. Visited June 24, 2001.