[Free-sklyarov-uk] a win for sanity! and free speech

[=?iso-8859-1?q?Gerry=20Magennis?=]

>  1. Source code == speech (and is therefore granted
>     1st amendment protections)
>  2. 1st amendment > trade secrets
> 
> 1. is relevant to Dmitry (and Goldstein). 2. isn't.
> 
> What this has to do with the softman v. adobe
> (someone posted the link) isn't clear. That seems to
> be a "software == goods" and first-sale decision.
> The original case being discussed was DVDCCA v.
> Bunner et al

The Softman v. Adobe case has its own interesting
ramifications, since it has now opened up some of the
issues surrounding EULA terms and conditions and
acceptance of EULAs by the user.  The case itself has
merely resulted in the overturning of an earlier
injunction, and the court that tried the case is I
believe low down in the US justice system.  However,
the judgement is well written and very informative and
I urge people to read it.  Here is a short summary of
the main points as I see them:

http://cryptome.org/softman-v-adobe.htm

 I. Background

 [...]

  "By distributing the individual pieces of Adobe
  Collections, Adobe contends that SoftMan is
  infringing Adobe's copyright in these products
  and violating the terms of Adobe's licenses"

The court found that Softman had not violated Adobe's
copyrights just by unbundling software and reselling. 
In essence, although Adobe does own the Copyright to
the software, and controls the distribution thereof,
once Softman obtained legal copies of the Adobe
bundled collection it could unbundle these and resell.
 Adobe attempted to argue that its EULA prohibited
this, but the court found that Softman was not subject
to the EULA as it had not installed the software, and
the EULA takes effect at that point (and click).

Furthermore, the court found that once Softman
obtained the inital bundle through a retail
transaction, i.e. obtained it through a distribution
from Adobe, at that point the first sale doctrine
kicked in and Adobe could no longer control further
sale through Copyright means.  To control this
situation, Adobe has EULA licensing.  However, the
EULA license had not yet kicked in as the product had
not been installed.  Therefore, Softman could exercise
first sale rights and resell the software unbundled,
as long as no illegal copys were being produced.

There are further arguments about sale vs. licensing
(the court found that Adobe sells its software), EULA
licensing (the court had strong words around the area
of Shrinkwrap licenses and questions whether they are
valid at all)

[...]

 3. Copyright Infringement Conclusion

  "In short, the transfer of copies of Adobe software
  making up the distribution chain from Adobe to
  SoftMan are sales of the particular copies, but not
  of Adobe's intellectual rights in the computer
  program itself, which is protected by Adobe's
  copyright. SoftMan is an "owner" of the copy and is
  entitled to the use and enjoyment of the software,
  with the rights that are consistent with copyright
  law. The Court rejects Adobe's argument that the
  EULA gives to purchasers only a license to use the
  software. The Court finds that SoftMan has not
  assented to the EULA and therefore cannot be bound
  by its terms. Therefore, the Court finds that Adobe
  has not demonstrated a likelihood of success on the
  merits of its copyright infringement claim."

Nicely written and a very clear conclusion.

[...]

 c. Public Interest 

  "The Court finds that the provisions contained in
  Adobe's EULA purport to diminish the rights of
  customers to use the software in ways ordinarily
  enjoyed by customers under copyright law. Therefore,
  these restrictions appear to be inconsistent with
  the balance of rights set forth in intellectual
  property law.19 Commentators have noted that the
  arguments for enforcing this balance are
  particularly persuasive in the context of shrinkwrap
  licenses because the balance of rights in
  intellectual property law is already tilted heavily
  in favor of the intellectual property owner. "The
  only countervailing forces favoring users are those
  rights specifically granted to users by federal law.
  In this context more than any other, therefore, it
  is justifiable to fear that removing or eviscerating
  those user rights may bring the whole edifice
  crumbling down."20"

Heady stuff.  No new precident set here but I believe
it is now clear that the US courts are willing to
review the whole area of IPR / Copyright law and
search again for that original balance struck for the
public good.  Great stuff, hopefully we shall see the
sentiment carried through into judgements from higher
courts.

And finally

[...]

  "A system of "licensing" which grants software
  publishers this degree of unchecked power to control
  the market deserves to be the object of careful
  scrutiny"

-Gerry


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