RE: The requested ruling (Was: BK kernel workflow)

David Schwartz
2004-10-30T02:16:02Z

> Ha! I found it faster on Slashdot than from our Librarian. Please note
> that I am not a lawyer (I'm the IS guy/server monkey), but am in arms
> reach of one at just about all times. I can ask someone to read this, and
> see if they agree with the below:
>
> Here's a link to the ruling in question. To quote Slashdot on it, "Some
> highlights from the ruling are: A clickthrough EULA isn't unconscionable
> (and thus enforceable); Fair Use rights can be waived in a EULA; First
> Sale rights (!) can be waived in a EULA; The DMCA's interoperability
> provisions are not a defense."
>
> http://www.freedom-to-tinker.com/doc/2004/bnetd_30sep.pdf
>
> BK's EULA is similarly enforceable.
>
> The horse is dead - you can stop beating it now.

Yes, this case does seem to be dead on point. Amazing, at least in the
Eastern District of Missouri, sellers of copyrighted works can require you
to waive all of your fair use and first sale rights as a condition of the
sale. (I'm exaggerating very slightly, because some issues specific to
computer software were involved. But it's hard to imagine it would make much
difference.)

This case involved a 'clik to install' agreement that required you to waive
your rights to reverse engineer, among other things. The court was not
impressed with DMCA interoperability defenses either, on grounds that I
can't comprehend.

The really weird thing, IMO, is how the courts were willing to join state
contract law with Federal copyright law in very strange ways. For example,
copyright law allows you to reverse engineer, and DMCA enforces copyright,
so how can you have a DMCA case against reverse engineering because you gave
up your reverse engineering rights by contract? There exists no copyright
protection against reverse engineering.

I make my living selling software, I should rejoice. Yay.

DS