[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).
[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.