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UnFairUse

By Ed Foster, Section Columns
Posted on Thu Oct 23, 2003 at 08:57:05 AM PDT

"You may use the Product in only one shop by the original purchaser only ... You may not allow individuals that did not purchase the original license to use the Product..."

Typical verbiage from a software sneakwrap license? Well, perhaps, but this happens to be from a license agreement attached to a woodworking tool. And it's one of the things - along with the flood of DRM, UCITA-like court decisions, software re-licensing fees for used hardware, etc. - that have prompted me to inaugurate a new section on my website this week: the UnFairUse page.


It seems like everywhere we turn these days, companies are trying to place limits on how we use their products. Often customers have no way of knowing what usage restrictions the vendor is claiming until after they make their purchase, or it requires considerable research to discover the vendor's true policies.

And then there's the often vast gap between official policies and real world practices. As we discussed last week with DRM, vendors will promise "it will only take a minute" or "minor hardware changes will not require reactivation," but the reality users encounter is often quite different. And as with all sneakwrap licensing, when and how a vendor chooses to actually enforce their nastier terms is an open question.

The point is that we as consumers need more information about all the attempts to restrict our rights so we can make information decisions about the products we buy. And providing more of that information is what we're going to try to do with the UnFairUse page.

What kind of things will be on the UnFairUse page? Just about anything, from software to woodworking tools, as long as it's news about usage restrictions you might want to know. We'll try to keep the items short and product-focused, providing links where we can to source material. To start out, we've mostly posted items about the big names from stories I've done in recent months, but we'll be including the little guys too.

This is an experiment, and we'll see how things go before we lock into any one approach. I'm not certain my weblog engine is the best vehicle for this, but it does have some advantages. In particular, I'm hoping readers will make use of the ability to post comments (anonymously if you wish) on a particular story so we can get more feedback on what customers of these products are really experiencing.

Of necessity, we'll be starting small, since it's just me and my Webmaster putting the section together. But we've also got thousands of gripe-prone readers to help, and that's who I'm counting on to make this work. So keep an eye on my UnFairUse pages, and keep an eye out for examples of unfair usage to tell us about. At least this way you'll have one tool you are free to share with your friends.

--------------------

Post your comments about this column below or write me directly at Foster@gripe2ed.com. To receive this column every week in my free e-mail newsletter, please go to my subscription page and follow the instructions to opt-in for the EdFoster mailing list.

< Use of Stots TemplateMaster Woodworking Tool Limited to One Shop | HP CD-RW Drive Cant Write to 48X Speed CDs >


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UnFairUse | 67 comments (67 topical) | Post A Comment
Milk license next?[ Reply to This ] (none / 0) (#1)
by Boriskin on Thu Oct 23, 2003 at 10:35:45 AM PDT

Can't you just see it? You buy a container of milk and there's a license on the label that says you've only bought a license to drink the milk, but not the milk itself. You may drink it or use it in a recipe, but you may not serve it to your family or anyone else, nor may you serve anything that uses the milk in the recipe to anyone else.
Simeon Pilliwinks
[ Reply to This ]


well, really.[ Parent | Reply to This ] (none / 0) (#2)
by bri8an on Fri Oct 24, 2003 at 06:50:22 AM PDT

I appreciate the humor here. However, the main reason (IMHO) that licensing instead of sale started was that people are selling (and have been for some time now) intangible things. You can't 'sell' something that you can't physically transfer. Hence, you let someone else use it in prescribed ways. This is what people have been doing with copyright for years. Honestly, what's the different between (say) buying a book and buying a piece of software? With the book, you've bought the paper, inke, etc., but you don't own the ideas. With software, you might own a CD or a floppy, but, again, you don't own the code itself, the ideas on that disk. The problem (again, IMHO) is that most people are conceptually confused: we've all been buying books for all these years, thinking we own them, and no one stops us if we copy it, loan it, etc. There were (and are) all sorts of loopholes in the copyright owners powers to restrict use anyway (fair use, public domain after some time, academic and educational use, etc). We never really thought about it, because no one was ever taken to court for photocopying a few pages from a book and sending it to their friends. Now abuse - that's another story. But licensing is a legitimate (and recognized in law) method of doing business. At least the vaunted 7th circuit seems to think so.

[ Parent | Reply to This ]


Buying Books[ Parent | Reply to This ] (none / 0) (#3)
by Anonymous User on Fri Oct 24, 2003 at 10:34:12 AM PDT

Just as a matter of information, a hundred years ago publishers tried to "license" books just like software is licensed today, in order to prevent the loss of revenue from used book stores and other resales. In fact, Ed himself mentioned this in a column about a year ago, as well as mentioning that the Supreme Court slapped them down.

Of course, a hundred years later the publishers are much bigger and have much deeper pockets; I wouldn't be surprised to see this decision overturned within the next ten years. The media companies have made it very clear that they want to starve the public domain into virtual nonexistence, and squeeze every cent they can get out of every possible revenue stream, and they'll buy the best judges in the land to do it.

The only humor I see here is purest irony: if they get their way, if UCITA's provisions infect all consumer transactions, then the communist dream of eliminating private ownership of goods will have been accomplished by the greatest forces of capitalism.



[ Parent | Reply to This ]


The slippery slope[ Parent | Reply to This ] (none / 0) (#4)
by bri8an on Sat Oct 25, 2003 at 07:49:09 AM PDT

is a pretty weak argument. You're saying that private property goes the way of the dinosaurs if we enact UCITA? Hmm...

BTW, two state legislatures have made the decision to enact UCITA. One of the most respected appeals courts in the federal system (and at least one state supreme court, Washington, that hasn't enacted UCITA) seems to endorse the reasoning of such a thing (at least on one point). So my feeling is that it's probably going to happen, in one form or another. I agree with the need to speak up and make sure that it doesn't really become the "Microsoft Commercial Code." But really. UCITA as the death of private property? Nope.

As to the books portion of your post, I'm still not sure what the functional difference is between copyright and software licenses, with one exception: the common law. We have many judicial carve-outs to copyright that have accumulated over the years, so now the doctrine has lots of exceptions. Yes, a hundred years ago, a much harder line was taken by publishers, but it's been watered down significantly. Again, when you buy a book, you don't buy the ideas. You buy a paper copy of the ideas. If you want to buy the ideas, go talk to the publisher. It'll cost you a hell of a lot more than a measly 25 bucks for the book.

Same sort of thing with software. You wanna buy Windows? Fine. I'm sure Gates would love to talk with you. Have you got a few billion laying around? Because that's what it would take. However, if you like Windows, you can buy the right to use a copy of it. It's much cheaper that way.

I guess my point is that this is a fundamental part of our economic system. We can put limits in place, but the drive to sell things is strong for us, and we'll find ways to sell damn near anything. Licensing is just one way to do that.

[ Parent | Reply to This ]



Re: Slippery Slope[ Parent | Reply to This ] (none / 0) (#5)
by Ed Foster on Sat Oct 25, 2003 at 11:51:11 AM PDT

You're quite right that UCITA-like thinking has indeed gained ground in the courts even as UCITA itself has been rejected in state after state. And that means none of us can be sure just how and where it might be applied.

If software publishers can deny their customers First Sale rights via a EULA, but book publishers can't, where do we draw the line between those two? What about a video? It's as easy to copy as software, after all. If a video publisher puts a sneapwrap EULA inside your "Lion King" box, does that mean you can't loan it to your grandkids? What about a DVD? What about an e-book?

The argument that software publishers need to have their EULAs enforced because software is so easily copied is bogus. Copyright law makes software piracy illegal, whether there's a EULA or not. That's why the video and music industries haven't bothered with EULAs, even though they have piracy problems too.

As I've often said, ultimately there's going to be one standard for all forms of goods. If software publishers can place usage restrictions on their products because they say it's licensed, not sold, then why shouldn't a woodworking tool manufacturer be able to do the same thing?

Ed Foster



[ Parent | Reply to This ]


Does there have to be a distinction?[ Parent | Reply to This ] (none / 0) (#6)
by bri8an on Sat Oct 25, 2003 at 12:41:39 PM PDT

It seems like the most common argument around the Lion King hypo you've posed is to say, "Fine - don't buy videos from those companies anymore." I've never bought that argument, mainly because there's really no choice for most situations.

As to the books/software problem you mentioned - I'm not sure there *has* to be a distinction here. It could just be an industry choice. Maybe I'm missing something, but I'm not sure there's any reason that book publishers couldn't do the same thing. We have this tradition (industry practice) in book stores of not shrinkwrapping books, but what happens when a publisher wants to start doing just that, ostensbily because of concerns about book damage, giving away 'free' content to browsers, etc.? To filter out the shrinkwrap factor and get to the conceptual point, assume that the first page of the book says something like, "This is a license, not a sale. Purchase constitutes acceptance. Visit www.megacorp.com for complete terms."

Enforceable? I'm not sure why not, under the trend in the law.

I honestly don't know why the music business hasn't done this - surely if the majors are vile enough to sue kids and grannies, they'd do this kind of thing, too. It may be that they've simply been focused so much on copyright, and they seem to be okay with the protections that it affords, that they've sort of gotten comfortable with an acceptable level of piracy. It could also be that the stakes are just pretty low for music and video. They're pretty cheap per unit, and the record co. execs don't want to spend that much money prosecuting. Microsoft, however, really understands just how much this could hurt them, since their software is (a) ubiquitous, and (b) fairly expensive. I'm willing to bet that if the major record labels merged into Microsoft-like prominence, you'd see mini-shrinkwrap licenses inside jewel boxes in no time flat.

Great site, great discussion. Thanks.

[ Parent | Reply to This ]



Re: Does there have to be a distinction?[ Parent | Reply to This ] (none / 0) (#7)
by Ed Foster on Sat Oct 25, 2003 at 02:22:44 PM PDT

It's not an industry tradition that keeps book publishers from putting shrinkwrap agreements on their books, it's the First Sale doctrine of copyright law. First Sale evolved from court decisions going back 100 years when book publishers were trying to do just that.

If you leave it to industry choice, every industry will choose to at least have the right to place whatever usage restrictions they like on their products. Book publishers would love to be able to do that, and current legal trends being as they are, maybe they will win that right. And if a few little things like libraries and used bookstores are eliminated as a result, so what?



[ Parent | Reply to This ]


An Important Distinction[ Parent | Reply to This ] (none / 0) (#8)
by dliesse on Tue Oct 28, 2003 at 12:10:43 PM PDT

Actually, there is one very important distinction that nobody has brought up yet. Copyright protects the expression of an idea, not the idea itself. By extension, there are limits on derivatives of the original work (e.g., it's a copyright violation if I write an arrangement of the Star Wars theme for woodwind quintet). Thus, a publisher cannot protect the ideas in a book, only the printed material itself. Come to think of it, if they could protect the ideas, we'd have very few books, wouldn't we? How many basic plots do novels have, after all?

[ Parent | Reply to This ]


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Ease of copying[ Parent | Reply to This ] (none / 0) (#9)
by Anonymous User on Wed Oct 29, 2003 at 05:54:25 PM PDT

Actually, the media companies did try to block copying video when VCRs came on the market.  They didn't like people "time shifting" since they could give the video to others or skip commercials.  The courts held that time shifting was a "fair use" of video/VCRs, but also saw to it that a portion of the price of a videotape went to the media companies.  The business did change, there were short term losers as well as winners, but ultimately video became a large new market for these companies.

And e-books - I was thrilled when they came out, only to be horrified when almost all the publishers limited them to costly, encrypted, proprietary format files that could not be easily moved between computers.  The publishers didn't understand how fast computers are replaced, and how utterly useless they had made their e-books.

While I don't agree with copy protection and anti-fair-use gimmicks, recent technological changes have given media companies a real problem:  While it has been possible for years to illegally copy video, music, books, etc.  it either required expensive equipment or resulted in a bad copy.  Now, it is easy to make near perfect copies inexpensively.  And it will get worse - terabyte hard drives will soon be common, along with much faster internet access, so high quality video will be much easier to copy.

EULAs ARE starting to show up on CDs.  DVD makers thought DVDs were impossible to copy due to encryption (it was never true, and statements made by movie companies made it clear they had a poor understanding of the technology, but that seemed to be their belief).  The only reason the EULA thing hasn't shown up on CDs and DVDs is that home copying of this media is a fairly recent occurance.  Software copying and the whole software copy protection issue has been going on for more than 20 years.  Put simply - the software companies have had more time to think about it.

[ Parent | Reply to This ]



Eulas on DVDs[ Parent | Reply to This ] (none / 0) (#10)
by beamdriver on Thu Oct 30, 2003 at 05:14:10 PM PDT

In fact, DVDs and VHS tapes have had EULAs as long as I can remember. You know that bit where it says "This presentation is licensed only for private, home viewing", that's a EULA.

I'd be interested to see if they try to put a "no resale" EULA on a DVD. IIRC, game companies sued Blockbuster et al a long time ago to keep them from renting games. They game companies lost.

[ Parent | Reply to This ]



Game companies did't lose 100%[ Parent | Reply to This ] (none / 0) (#12)
by n0vyy on Wed Nov 05, 2003 at 09:23:15 AM PDT

The game companies lost on with regards to console type games. You don't see Blockbuster renting PC games. They won in that realm.

[ Parent | Reply to This ]


Re: EULAs on DVDs[ Parent | Reply to This ] (none / 0) (#11)
by Ed Foster on Fri Oct 31, 2003 at 11:12:51 AM PDT

If anyone has examples of EULAs on DVDs or other entertainment media, particularly ones that try to restrict resale in any way, let me know.

[ Parent | Reply to This ]


yes[ Parent | Reply to This ] (none / 0) (#16)
by maderikapapa on Fri Jun 27, 2008 at 07:36:29 PM PDT

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fair use[ Parent | Reply to This ] (none / 0) (#13)
by Anonymous User on Tue Nov 18, 2003 at 03:11:39 PM PDT

no, Ed... it's not can you loan the dvd to a relative, it's "can you make a copy for them."

[ Parent | Reply to This ]


yes[ Parent | Reply to This ] (none / 0) (#17)
by maderikapapa on Fri Jun 27, 2008 at 07:37:35 PM PDT

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gbvv[ Parent | Reply to This ] (none / 0) (#26)
by Anonymous User on Thu Oct 23, 2008 at 11:02:53 PM PDT

,fff,fff^出会,,

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gfdd[ Parent | Reply to This ] (none / 0) (#29)
by Anonymous User on Fri Oct 24, 2008 at 11:02:24 PM PDT

出会,,,ff,,素人

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fgkk[ Parent | Reply to This ] (none / 0) (#32)
by Anonymous User on Sat Oct 25, 2008 at 11:25:01 PM PDT

,fff巨乳熟女

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fbvd[ Parent | Reply to This ] (none / 0) (#35)
by Anonymous User on Tue Oct 28, 2008 at 01:16:07 AM PDT

童貞,f*ffff`

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gfmm[ Parent | Reply to This ] (none / 0) (#37)
by Anonymous User on Wed Oct 29, 2008 at 01:47:11 AM PDT

,fff^,f不倫

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dgff[ Parent | Reply to This ] (none / 0) (