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Is Copy Protection Constitutional?

By Ed Foster, Section The Gripelog
Posted on Tue Jul 13, 2004 at 12:30:01 AM PDT

It's not unusual for my readers to have some strong things to say about DRM, product activation and the like. But one reaction to my column last week on Roxio's product activation was particularly remarkable, the more so because it came from the president of a software company.

"We are a small company which does a lot of customized software, so there is a difference there between us and the Microsofts, et. al. of the world," the reader wrote. "However, our philosophies cannot be too dissimilar, since we all make our money off our software."

"All that said, I view copy protection as an absolute immoral, illegal, and unconstitutional intrusion of individual rights," the reader wrote. "I have gotten fed up with companies and people in general treating everyone like a criminal until they prove otherwise. I will not allow anyone at my company to even suggest a copy protection scheme, because I believe in going after the offenders, and not everyone else."

Unconstitutional intrusion? "Absolutely" the reader wrote, citing the Fourth Amendment's protection against unreasonable searches and seizures. "It is my belief that these activation schemes are essentially a search as it keeps track of the hardware in the system. It may be general information, but still nonetheless a search. Secondly, when the software is disabled as a result of a hardware change, again, this is a search, but also a seizure. I understand all too well that software is licensed, and title and copyright is retained with the authoring entity; however, the price paid for the software is essentially a rental price. How often in this country can a person be thrown out of their residence without the owner going to court first? It just doesn't happen."

The reader also cited the Fifth Amendment and its provision that no person should be deprived of life, liberty, or property without due process of law. "Disabling software when the person has paid the entity's price for it constitutes the person being deprived of liberty and property without due process," he wrote. "I have written and continue to write Senators, Congressmen, etc. to try to get some action on this, but the issue is just simply not big enough or hot enough to get Congress to move on."

Them's fighting words, I do believe. Write me at Foster@gripe2ed.com and tell me which side of the fight you're on.

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Is Copy Protection Constitutional? | 16 comments (16 topical) | Post A Comment

It's not unconstitutional[ Reply to This ] (none / 0) (#1)
by pfaut on Tue Jul 13, 2004 at 05:21:27 AM PDT

The Bill of Rights puts limits on the powers of government, not individuals or corporations. Therefore, the indicated behaviors are not unconstitutional.

[ Reply to This ]

Right, but still wrong[ Parent | Reply to This ] (none / 0) (#2)
by grolaw on Tue Jul 13, 2004 at 09:31:40 AM PDT

The U.S. Constitution places limits on the actions of the Federal Government and, through the 14th Amendment, extends those limitations to state and local governments.

Software companies are not government entities and they do not have to meet the standards of the U.S. Constitution. They do have to abide by the statutes enacted under Constitutional authority.

However, as an attorney and a US citizen, I have always viewed the Constitutional safeguards as the MINIMUM safeguards for citizens. If a company tries to violate my privacy I have the right to refuse to comply with their snooping.

There are a number of port watcher programs out there (I use Little Snitch) and with them you can authorize one connection to the company to install the app and thereafter lock out the "phone home" feature.

This use does not violate DMCA or NET act restrictions because it does not "reverse engineer" a protection feature and it does not facilitate theft...it simply allows the user to "register" the program - per the terms in the license - and thereafter the user controls how much data goes back to the company.

[ Parent | Reply to This ]

Software Protection[ Parent | Reply to This ] (none / 0) (#3)
by Anonymous User on Tue Jul 13, 2004 at 11:01:43 AM PDT

Have to agree, it is not constitutional, but most copy protection schemes do put a severe drag on the customer's use of the product and hence probably are breaking the implied contract that merchandise must be useable. And the courts have gotten this one far wrong. A CD of software bought off the shelf is a piece of merchandise regardless of what the lawyers and judges have said. There is no feasible or reasonable way for a company to negotiate millions upon millions of licenses with customers. They'd go bankrupt of we all just wrote a couple of letters demanding changes to the terms.

[ Parent | Reply to This ]

Missed the point?[ Reply to This ] (none / 0) (#4)
by Anonymous User on Tue Jul 13, 2004 at 11:33:37 AM PDT

"The reader also cited the Fifth Amendment and its provision that no person should be deprived of life, liberty, or property without due process of law. "Disabling software when the person has paid the entity's price for it constitutes the person being deprived of liberty and property without due process," he wrote. "I have written and continue to write Senators, Congressmen, etc. to try to get some action on this, but the issue is just simply not big enough or hot enough to get Congress to move on."" It seems like the writer above has missed the point or lives in a world substantially different than mine. Congress will not move on it because the other side has a lot more money behind them. Why would they do the right thing when it does goes against all that money?

[ Reply to This ]

Unpleasant but Needed[ Reply to This ] (none / 0) (#5)
by auctionhugh on Wed Jul 14, 2004 at 08:28:21 AM PDT

I don't know how a small software company can stay in business without using some form of copy protection. Personal and even business users can be very casual about sharing software programs, though most are probably honest. It is quite a dilemma.

-----
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[ Reply to This ]

Of Course[ Parent | Reply to This ] (none / 0) (#7)
by Anonymous User on Wed Jul 14, 2004 at 05:44:08 PM PDT

No doubt that is why shareware has never worked and no one makes money supporting Linux . . .

[ Parent | Reply to This ]

They do it on support[ Parent | Reply to This ] (none / 0) (#16)
by kamnet on Thu Jul 22, 2004 at 10:32:17 AM PDT

I remember about ten years ago reading an article written by Jeffry Woods, owner of DeltaComm, the creator of the popular Telix terminal communications program - a program that was pirated quite a bit.

He flat out stated he was not concerned about piracy of his company's software products one bit because of the simple fact of support. Eventually most users of pirated software who continue to use the software and come to rely upon it will want things like support, media, etc. and will opt to pay for the program rather than continue to steal it and miss out on benefits that completely honest customers have enjoyed all along.

Ten year later, I still believe that this is the case. Software pircay for most people is "try it a little longer before you buy it" rather than "never pay a red cent for software ever again!"

[ Parent | Reply to This ]

I can't let this one go by...[ Reply to This ] (none / 0) (#6)
by Anonymous User on Wed Jul 14, 2004 at 05:38:03 PM PDT

Ed, I apologize for the length of this response. I am confident you will not perform any unconstitutional acts upon it!
I have worked at a "small software company which [sic] ... blah blah blah." I could not possibly let this load of complete and utter rubbish go without comment:
"We are a small company which does a lot of customized software, so there is a difference there between us and the Microsofts, et. al. of the world," the reader wrote. "However, our philosophies cannot be too dissimilar, since we all make our money off our software."
*    This guy has hallucinations of grandeur, including himself in the same breath with Microsoft! How much more wrong could he be? Of *course their philosophies are *vastly different:
o    He writes custom s/w for the Few: MS writes standard s/w for the other billion or so of the masses.
o    He undoubtedly has personal contacts, and a contract with each and every Customer: MS cannot *possibly have the same! Their EULA, however flawed, is the closest they can get to a contract!
"All that said, I view copy protection as an absolute immoral, illegal, and unconstitutional intrusion of individual rights," the reader wrote.
*    Well, he is *obviously NO lawyer, to make such silly, ignorant statements. He probably *hires a lawyer to do his contracts. The Constitution protects us against *Government, not crooked customers.
*    Does he belong to the Generation that thinks every book, song, movie, painting, etc etc that can somehow be put on the Internet should be free??
"I have gotten fed up with companies and people in general treating everyone like a criminal until they prove otherwise.
*    And this means... what? Perhaps he still lives in the woods and doesn't lock his doors at night?
I will not allow anyone at my company to even suggest a copy protection scheme, because I believe in going after the offenders, and not everyone else."
*    Wonderful. So *both his employees are ... umm, no nvm.
*    With only a few, *contracted Customers with *custom s/w (probably with embedded identification), he wouldn't need copy prot anyway! His contract almost certainly addresses these issues, as well.
"It is my belief that these activation schemes are essentially a search as it keeps track of the hardware in the system. It may be general information, but still nonetheless a search. Secondly, when the software is disabled as a result of a hardware change, again, this is a search, but also a seizure.
*    Well, he is *obviously NO lawyer, to make such silly, ignorant statements. He probably *hires a lawyer to do his contracts. The Constitution protects us against *Government, not crooked customers.
I understand all too well that software is licensed, and title and copyright is retained with the authoring entity; however, the price paid for the software is essentially a rental price.
*    He does? So, why does he say `however?' Perhaps he can copy a good dictionary off the Internet.
*    At least he agrees with MS that it's *their s/w, and it's only "rented" to the customer. So, if these `customers' try to make and distribute copies, that is illegal, immoral, and w/e.
How often in this country can a person be thrown out of their residence without the owner going to court first? It just doesn't happen."
*    Silly-ass, apples and oranges analogy.
"Disabling software when the person has paid the entity's price for it constitutes the person being deprived of liberty and property without due process," he wrote.
*    Well, he is *obviously NO lawyer, to make such silly, ignorant statements. He probably *hires a lawyer to do his contracts. The Constitution protects us against *Government, not crooked customers.
o    Is he serious? A customer pays his "rental" price, so it has the "liberty" to now break the contract, perhaps even to sell it to someone else?
o    "Property??" I thought he said it was a "rental," which would mean it is *not their property!
"I have written and continue to write Senators, Congressmen, etc. to try to get some action on this, but the issue is just simply not big enough or hot enough to get Congress to move on."
*    Well, thank goodness! Our Legislators are smarter than I thought!

All in all, I am glad I never met this person. I hope this happy state continues.

Regards, etc etc

[ Reply to This ]

Constitution is for Government[ Parent | Reply to This ] (none / 0) (#8)
by Anonymous User on Thu Jul 15, 2004 at 03:00:48 PM PDT

Thanks for saving me from having to write the entry you did! I agree with all your points. The most important is that the Constitution protects the people from the government, NOT other people. I can't tell you how tired I get hearing about "my rights" in relation to commercial practices. For example.. I do not like the "gag order" that vendors place on publishing benchmarks... So I make a choice when evaluating such products: Either do the benchmark myself (permitted) or DO NOT BUY THE "gagged" Product. I don't expect someone to have right(!) to buy the product and then BREAK THE CONTRACT by publishing benchmark results! Thanks for saying what needed to be said!

[ Parent | Reply to This ]

And just WHO enforces contracts, pray tell??[ Parent | Reply to This ] (none / 0) (#9)
by Anonymous User on Fri Jul 16, 2004 at 03:33:48 PM PDT

While I consider the constitutional argument against copy protection something of a stretch, this is silly: You cannot enforce illegal contracts, and the constitution does "protect" people from other people in various areas. You cannot buy or own a slave, for example. In any event, the government runs the courts, so limits placed upon the government will not be ignored there. My problem with the constitutional argument is that software is essentially a modern development - a nonphysical entity that affects the operation of special devices. Applying the constitution to that is a matter of interpretation at best. My own feeling is that a company can write software any way they want to, including adding copy protection, but they can't tell me how I can use my own property - my computer.

[ Parent | Reply to This ]

"Gag Order" Clauses Are Unconstitutional[ Parent | Reply to This ] (none / 0) (#10)
by Ed Foster on Fri Jul 16, 2004 at 06:15:02 PM PDT

I find it disturbing that so many people seem to think they have no rights that can't be taken away by sneakwrap licenses. With the censorship clauses, there's just no question -- not only are they unenforceable, vendors can get into trouble for trying to use them. Read "Court: Network Associates Can't Gag Users" to see what happened to McAfee in the one case where a clause prohibiting publication of reviews or benchmarks was tested in court.

We do have some rights that go beyond restrictions on what the government can do. The First Amendment only says that "Congress shall make no law ... abridging the freedom of speech, or of the press ..." but that's not all there is to free speech or a free press. If it were, I would have been gagged long ago.

Ed Foster

[ Parent | Reply to This ]

EULA's[ Parent | Reply to This ] (none / 0) (#12)
by Anonymous User on Sat Jul 17, 2004 at 12:14:37 PM PDT

Here's my comment on EULA agreements. If I go to a retail store to pick up a copy of XZY Corps newest product, there is no way of knowing what the terms of the EULA are until I purchase AND install the product on my PC. If, after I read the license agreement on my screen during the install, I discover the terms are unacceptable my only option is to not click the agree box, (or otherwise not accept the agreement and not continue with the install.) The EULA's state (most of the ones I've seen, anyway.) that if you do not accept the terms of the agreement, that you must return the product to the place of purchase for a refund.

Ever try to return an opened software product to a retail store? Not gonna happen - they nearly all exclude opened software from their return policy.

So, now you've paid money for a product you can't use, the software vendor has told you to return it for a refund if you don't accept the license terms, and the place of purchase won't honor the vendor's promise to refund the purchase. I'm not a lawyer, but this sounds like it would violate contract law. There was no "meeting of the minds" before money changed hands, because the terms were unknown by the consumer. When the consumer learned the terms, it's already too late to choose not to accept them. Sounds to me like the entire agreement is null and void at that time, and you can reverse engineer, publish a review, or do anything else you choose with the product no matter what the license says.

We REALLY need these kinds of sneakwrap agreements to be outright BANNED.

So, the question is, has this happened to you? What did you do about it? What should be done to stop this practice? (And hopefully severely punish the executives and attorneys of the responsible vendors.)

[ Parent | Reply to This ]

Maybe the US consitituion needs updating[ Parent | Reply to This ] (none / 0) (#11)
by Anonymous User on Sat Jul 17, 2004 at 08:46:45 AM PDT

Perhaps the consitution of *should* protect American citizens against each other and corporations, as well as the government. Who should the average US citizen be protected against -- the US government or US corporations, or both? Just a thought, from an outsider -- an interested South African. Have a look at South Africa's constitution and bill of rights, which bind all legal persons, natural (i.e. people) and jursitic (i.e. corporate), to the same set of standards to protect individual persons. http://www.polity.org.za/html/govdocs/constitution/saconst.html?rebookmark=1

[ Parent | Reply to This ]

some people are just so stupid[ Parent | Reply to This ] (none / 0) (#13)
by Anonymous User on Mon Jul 19, 2004 at 01:15:15 PM PDT

You are basically advocating an evil immoral society.

If I rent a cow Jessie from Farmer Sid for the going rate and Jessie doesn't produce good milk, it is my moral obglication to tell my community about Jessie's problems. Now if Farmer Sid were a moral man, he wouldn't try and make me sign some giant contract that disables me from being a good person.

A capitalist economy that is also socially benevolent is based on moral transactions. Any transaction where there is deception or incomplete information is not a moral transaction.

Roxio's product activation scheme is deceptive and only can be seen by the consumer once the shrinkwrap/tearwrap/openwrap/etc has been broken. This practice should be illegal and the consumer should have full right of refund upon not wishing to complete product activation. Yes, it's that simple. Otherwise there is no moral transaction.

[ Parent | Reply to This ]

Neither can I[ Parent | Reply to This ] (none / 0) (#15)
by Anonymous User on Wed Jul 21, 2004 at 03:19:51 PM PDT

I think it is you that is the silly ass and it is you that should examine what world you are living in. It appears that Micro$oft has caught themselves a BIG fish, hook, line, and sinker! Just wait until you or a company you work for pay mega-bucks for a piece of software that you have to activate only to find a year or two down the road, when you need to reload it onto a newer system, that the company has gone belly-up and you are now stuck with worthless software you can no longer install and use. Where does it say in ANY license agreement "until Chapter 11 do us part". You may believe you are only "renting" the use of that software but I believe it is reasonable for me to expect that I will be able to continue to use that software until the technology advancements no longer allow it. The expectation of that "contract" is that as long as I can maintain a machine and OS that will allow me to continue to use that particular version of software, I should not be disabled from using it. Not being able to re-activate it for ANY reason is a breach of that "contract" and is completely unacceptable! If you think it can't happen I'm here to tell you different. It has already happened to me and others I know personally as well as my company. Thus the reason I have told Adobe that I will no longer be upgrading their products that I own, Photoshop 7, Premier Pro, and Illustrator 9.0 as the next versions all have product activation. In addition, Macromedia has also been informed that I will not be upgrading Dreamweaver MX for the exact same reason. They may not care about me but if enough people do it they might just be forced to take notice. Intuit did with TurboTax...we got their attention. The only power we have as consumers is to vote with our wallets, however, as long as there are fish like you that buy the party lines you are being fed and the apathetic who could really care less the rest of us are doomed!

[ Parent | Reply to This ]

Constitutional Rights disappeared a long time ago![ Reply to This ] (none / 0) (#14)
by Anonymous User on Tue Jul 20, 2004 at 03:19:26 PM PDT

I am a consumer and a small software developer. In spirit, these agreements are not Constitutional, but an agreement is an agreement. The Constitution also gives us 'Under Liberty of Contract' the right not to sign or to sign an agreement - as long as the contract is not illegal or endangers anyone! How many ill-spirited contracts are we coerced into signing every year by our own Federal and State agencies? Ask the Reservists (I was one) and high-school kids (me too)why we signed up for a draft that was then used to send us overseas on police actions by Executive Order in violation of the Constitution? The C. says we should fight for our country when we are invaded or have war declared on us. Does that stop Presidents of either political party from breaking their vow to protect and uphold the C.. Of course not. So, my vote is that these agreements violate our Constitutional rights by using various forms of coercion and deceit to get our contractual approval and consequent removal from 'liberty' after we have spent time and money. I wonder what would happen if everyone sent their tax returns to the IRS unsigned? Afterall, a criminal has to be read his Maranda rights (5th), but taxpayers are threatened everyday with complete destruction of their financial world if they don't sign 'Under Penalty of Perjury" thereby giving up their rights to self-incrimination and the confiscation of any and all property the IRS deems necessary to resolve the tax-debt on one's 'wages' now considered 'income' by the IRS. And of course, we're all going to stop buying Microsoft products in protest too. The answer to America's and the most dangerous global problems will not be acceptable to those responsible for them. Bolivians are revolting in the street over the World Bank telling them they must let Bechtel control their water and charge them what they wish. Same thing is happening in the U.S. in Stockton - where the Mayor thinks of his constituents as 'customers'. I'm reminded of an overweight friend of mine who loves Dunkin Donuts. He refers to them as 'Sundown Donuts', because one needs to eat them before sundown or they will quickly become stale. Welcome to the world of 'Sundown Software' that quickly goes stale after one removes the shrink-wrap. Warm regards, DonWagner@evectory.com AD20040721WED@101523Z#01.0;

[ Reply to This ]

Is Copy Protection Constitutional? | 16 comments (16 topical) | Post A Comment

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