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Leading items and editorials

Interesting court cases is the theme of the week. Some LWN readers have been heard to grumble that we spend too much time on licensing and legal issues. Perhaps that is true, but these issues are crucial: free software is very much at the mercy of the legal environment in which it operates. The law can either help free software's success, or it can make free software illegal and impractical.

Thus, the outcomes of the three cases described below are important. Even if they are limited in scope, they point toward where we could be going in the future. Non-U.S. readers may feel uninterested in purely U.S. results, but the fact remains that conclusions reached here - both good and bad - have a tendency to leak out toward the rest of the world. So read on...

Source code is speech, or so concludes a California state appeals court in the Bunner DVD case. Bunner is "the other DVD case," distinct from the (higher-profile) New York case. The defendant, Andrew Bunner, had been taken to task for posting the DeCSS code on his web site, and ordered by a lower court to take it down. In his appeal, he claimed that the injunction violated his free speech rights. In its ruling (available in PDF format), the court agreed:

Like the CSS decryption software, DeCSS is a writing composed of computer source code which describes an alternative method of decrypting CSS-encrypted DVDs. Regardless of who authored the program, DeCSS is a written expression of the author's ideas and information about decryption of DVDs without CSS. If the source code were "compiled" to create object code, we would agree that the resulting composition of zeroes and ones would not convey ideas.... That the source code is capable of such compilation, however, does not destroy the expressive nature of the source code itself. Thus we conclude that the trial court's preliminary injunction barring Bunner from disclosing DeCSS can fairly be characterized as a prohibition of "pure" speech.

So, code is speech. That is an interesting conclusion, but it does not automatically lead to the conclusion that Mr. Bunner is entitled to publish that speech. American constitutional law is firm in its protection of speech, but there are still many exceptions. To what extent will the designation of code as speech address the various legal problems that free software has encountered recently?

The precedent set by this case, unfortunately, does not help as much as one would like. The Bunner case differs from the New York case in an important aspect: the complaint in Bunner is based entirely on trade secret law. Copyright (and the DMCA) are not part of the argument. That distinction is a key part of the court's reasoning:

Thus, the availability of injunctive relief against copyright infringement is supported by justifications that are inapplicable to trade secrets. Both the First Amendment and the Copyright Act are rooted in the United States Constitution, but the UTSA [trade secret law] lacks any constitutional basis. The prohibition on disclosure of a trade secret is of infinite duration while the copyright protection is strictly limited in time, and there is no "fair use" exception as there is for copyrighted material. These significant distinctions between copyright and trade secret protections explain why courts have concluded that the First Amendment is not a barrier to injunctive relief in copyright infringement cases.

In other words, a first amendment ("free speech") argument beats trade secret law (at least sometimes), but copyright law has a different stature. So, for example, "code is speech" defenses are not automatically assured of success against DMCA prosecutions, since the DMCA is a copyright law.

Finally, the decision in this case applies only to "prior restraint" of speech - the blocking of such speech before it can be proved that damage has been done. With code seen as speech, denial of prior restraint was an easy conclusion for the court to reach ("Indeed, the Supreme Court has never upheld a prior restraint, even faced with the competing interest of national security or the Sixth Amendment right to a fair trial."). The door remains open, however, to injunctions or damages against Bunner down the road, if the DVDCCA can prove that law has been violated and harm has been sustained. So this case is not yet over.

License agreements and first sale doctrine. Below the radar of much of the free software community, another interesting case was coming to a conclusion in U.S. District Court in California. In this case, our old buddy Adobe Software was pushing for an injunction against SoftMan Systems. Softman, it seems, has been buying Adobe software collections, splitting them into their component parts, and selling those parts independently. Adobe's claim is that this reselling activity violates the end-user license agreement (EULA) covering the program, and is thus a copyright violation.

The court disagreed (this ruling, too, is available in PDF format). Essentially, the court has said that the EULA does not apply to SoftMan, for a couple of interesting reasons. One is that SoftMan never agreed to the EULA, and is thus not bound by its terms:

In the instant case, the Court finds that there is only assent on the part of the consumer, if at all, when the consumer loads the Adobe program and begins the installation process. It is undisputed that SoftMan has never attempted to load the software that it sells. Consequently, the Court finds that SoftMan is not subject to the Adobe EULA.

The ruling also casts doubt on whether agreeing to a click-through license can truly be binding to the consumer.

The other aspect of the court's ruling is that the software was sold - not licensed - to SoftMan:

The Court understands fully why licensing has many advantages for software publishers. However, this preference does not alter the Court's analysis that the substance of the transaction at issue here is a sale and not a license.

Since this transaction is a sale, the first sale doctrine applies:

In short, the terms of the Adobe EULA at issue prohibit licensees from transferring or assigning any individual Adobe product that was originally distributed as part of a Collection unless it is transferred with all the software in the original Collection. This license provision conflicts with the first sale doctrine in copyright law, which gives the owner of a particular copy of a copyrighted work the right to dispose of that copy without the permission of the copyright owner.

These conclusions are interesting, in that they have the potential to tilt the interpretation copyright law a little toward the rights of users of copyrighted material. For example:

  • Both DVD cases depend, partly, on the claim that a commercial DVD package was "improperly" reverse engineered. It is the software's EULA, however, that prohibits that reverse engineering. If the code is reverse engineered without installing it and agreeing to the EULA (by, say, disassembling it on a Linux system), the EULA does not apply. The Bunner case, in particular, could be affected by this ruling.

  • Reselling that unwanted Windows installation on your new computer should be legal.

  • Electronic books, too, are subject to first sale; it should be possible to resell them.
The ruling gives an out to software companies that wish to continue to "license" rather than sell a copy of their software. The transaction is considered a sale when it involves a single payment and use of the software for an unlimited time. Thus, the "rent-a-program" schemes being proposed by many are untouched.

This affirmation of the first sale doctrine is a welcome strengthening of the rights of consumers of copyrighted material. Here is an interesting scenario, though: suppose an unethical vendor obtains a copy of a program licensed under the GPL, makes a change, and resells the product under a proprietary license? Consider, for example, a Linux distribution where the C library has been replaced with a proprietary, value-added package. The vendor could argue that the tweaked copy can be resold under the first sale doctrine. Massive distribution could be made possible by "purchasing" a new copy of the GPL code for each copy sold. We may never see a vendor attempting this approach, but the possibility exists.

The settlement. Tempting though it may be to ignore it, the settlement between that proprietary software company and the U.S. government is worthy of a mention. For the most part, the settlement looks like it will change little for the free software community. Microsoft will continue to exist as a single company, and will have relatively few constraints on what it can do. Business as usual.

The settlement does make it harder for Microsoft to prevent vendors from selling dual-boot systems. Dual-boot boxes may thus become available from some vendors, which may encourage a few people to try out Linux. For the most part, however, dual-boot systems are of limited utility,and their wider availability will not change a whole lot.

In theory, the settlement requires Microsoft to (eventually) document its protocols. However, as the Samba team has pointed out, it's far from clear that such documentation will be forthcoming. The settlement gives Microsoft a great deal of latitude in what it will, and will not, release.

Then, there is the more ominous view of this settlement. Consider, for example, this Dan Gillmor column:

Is it possible that Microsoft and the government have made some secret arrangements that will be couched under 'anti-terrorism' rhetoric when or if they emerge into the public light? The government's new surveillance powers would be far easier to carry out if Microsoft became a government ally in this area.

Also expressing concern is Dave Winer:

Microsoft had a lot of power to offer to the government. The government has been granted new electronic surveillance power by Congress. Now how do they implement it? Microsoft can help. In my mind I'm not so naive to believe this was an arms-length deal, I'm certain there are aspects to the partnership between Microsoft and the US government that we can't see.

It would be easy to achieve an excessive amount of paranoia here, but, at the same time, these concerns are worth considering. Whether or not anything is really happening here, a network dominated by closed source software is vulnerable to government manipulation and surveillance.

Meanwhile, several U.S. states may refuse to join the settlement; if they remain outside, the case will remain alive. The European Union is still pondering what it may do. This story is far from over. No matter how it comes out, though, one presumes that free software will continue to progress and see wider use. No legal settlement is required for that to happen.

Inside this LWN.net weekly edition:

  • Security: OpenSSH 3.0; another kernel vulnerability.
  • Kernel: Toward 2.5; authoritative hooks denied; thrashing /proc.
  • Distributions: Linux Counter - The distribution of Distributions; Red Hat on Top; Debian runs a close second.
  • Development: Sweetcode site, new Alsa releases, ivtools-1.0, Gnumeric 0.75, and lots of XML stuff.
  • Commerce: Sharp announces Linux PDA; IBM open sources Eclipse; MontaVista goes digging for oil.
  • History: Stop terrorism. Use free software; Microsoft ruled a monopoly; More software patents.
  • Letters: The risks of documenting security fixes; reporting bugs.
...plus the usual array of reports, updates, and announcements.

This Week's LWN was brought to you by:

November 8, 2001


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