Dwindling Rights Digest
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From: Peter Langston <psl>
Date: Mon, 11 May 98 03:01:50 -0700
Subject: Dwindling Rights Digest
It's Your Problem
(c)Copyright 1998 James Gleick
I seem to remember that when I subscribed to, oh, The New Yorker, I sent
in some money and eventually the magazine started arriving in my mailbox.
Not so simple in the digital era. The other day I used my computer to
subscribe to Slate, an on-line magazine owned by Microsoft, and after I gave
up my name, E-mail address, postal address, credit-card number, and choice
of gift (I declined the free umbrella), the screen presented me with the
first few lines of a 2,000-word contract. Below this was a button marked "I
Agree." There was also a button marked "Cancel." I looked in vain for a
button marked "Let's Negotiate--My Lawyer Will Be in Touch with Your
I realize now that before you read any further we should agree on some
First of all, by reading Fast Forward you confirm your acceptance of, and
agree to be bound by, and promise never to call your lawyer to make light
remarks about, this Agreement.
Further, you're not buying a car or a toaster here. This department "makes
no express or implied representations or warranties to you regarding the
usability, condition, or operation thereof. We do not warrant that access
or use will be uninterrupted or error-free or that we will meet any
particular criteria of performance or quality". No matter how bad the
product is, it's your problem, not ours.
And after all this, if you think you've found a loophole and actually wish
to sue, start by calling your travel agent, because you consent to the
exclusive jurisdiction and venue of courts in King County, Wash. Oh, no,
"Yes, it's absurd," says Michael Kinsley, Slate's editor. But no more
absurd, he adds, than agreements at other sites. (Sure enough, The New York
Times has a long contract for its own on-line subscribers.) Internet
magazines are more complicated, interactive, and bug-prone than their print
ancestors and thus require, in a litigious world, more complicated legal
armor. You aren't really expected to understand it. "The entire software
industry, for that matter, depends on its customers not really reading these
things before clicking 'I accept,'" Kinsley says.
The software industry also relies on a clever legal twist: the notion that
consumers are entering into ongoing licensing agreements with the
manufacturers. You may think, as you walk out of a store, package under your
arm, that you have bought that software. The industry claims that you have
merely licensed certain limited rights to use it. It says so right there in
the agreement you will find under the shrinkwrap and toss away unread.
As a licensee, you commit yourself to a set of continuing duties. In the
case of Slate, for example, you agree to supervise any usage by minors and
to notify Microsoft "promptly"--even though you've already paid--if you
change your billing address, lose your credit card or "become aware of a
potential breach of security." Kinsley says he persuaded the lawyers to drop
a clause that would have required all his readers to maintain their computer
equipment in working order.
Are all these shrinkwrap and "clickwrap" agreements really enforceable?
After all, the manufacturers know perfectly well that customers have neither
the time nor the expertise to read them, and often the agreements are hidden
in boxes until well after the customers have paid up. No one knows for sure.
In real life, manufacturers almost never try to enforce the sillier terms,
and most of the damages people suffer >from defective software tend to be
in the nature of lost time--hours spent cursing the computer or waiting on
hold for technical support--and it's hard to sue over that.
Steve Tapia, a Microsoft corporate attorney, says it just wouldn't be fair
to hold software to the same standards as, say, a car. That's lucky for him,
because car makers have found it very expensive to sell cars with
defects--especially defects they knew about. They can't just disclaim any
obligation to guarantee their products. Software is different, Tapia says,
"because personal computer software may be used for a myriad of different
purposes on an infinite amount of hardware combinations."
In the early days of personal computers, users were mostly technical types
willing to wrestle with flawed software. They forgave some of the bugs, in
versions 1.0, anyway. Now that computers are a mass-market product, they
reach more naive customers who might actually expect their software to work.
That must be why dozens of companies feel compelled to make users agree that
they're on their own if they use the products "in hazardous environments
requiring fail-safe performance, such as in the operation of nuclear
facilities, aircraft navigation or aircraft communication systems, air
traffic control, direct life support machines, or weapons systems, in which
failure of the software could lead to death, personal injury, or severe
physical or environmental damage. "
Some legal departments have been getting more creative lately. Customers
who download Network Associates' antivirus software "agree"--click--to
clauses designed to give the company control of press coverage: "The
customer shall not disclose the results of any benchmark test to any third
party without Network Associates' prior written approval"; and "the customer
will not publish reviews of the product without prior consent."
Meanwhile, the agreement that comes with Microsoft Agent, software that
lets people create cute interactive animated figures, holds that you may
not use the characters "to disparage Microsoft, its products or services."
Will the next version of Microsoft's operating system have a clause like
that? I'll have to find a typewriter?
Perhaps some of these contract terms are striding defiantly past the limits
of existing law--but the law is likely to change shortly, in all 50 states.
A major revision is under way in the foundation of American commercial law,
the Uniform Commercial Code. The drafters, a committee of lawyers
established for the purpose, have created a new statute, Article 2B,
specifically to cover software and other information products. To the horror
of some consumer groups, the current draft <http://www.law.uh.edu/ucc2b/>
--expected to go to the state legislatures in January--ratifies the most
aggressive provisions of today's software licenses.
It would set into law the idea that software customers aren't buying
"goods" but merely licensing certain rights. It makes the licenses binding
even when customers have not read them, when the customers casually clicked
an on-line button, and when the customers could not have seen the agreements
until after buying the products.
The draft legitimizes confidentiality and nondisclosure clauses like
Network Associates', forbidding users to publish reviews of a product. And
it would explicitly allow manufacturers to disclaim warranties; it even
suggests language: "this [information] [computer program] is being provided
with all faults, and the entire risk as to satisfactory quality,
performance, accuracy, and effort is with the user."
"It's the drafting committee's view that bugs are inevitable in software
and that makes software different," says Cem Kaner
<http://www.badsoftware.com/uccindex.htm>, a lawyer and software consultant
opposing these provisions. He argues that Article 2B in its present form
will be a disaster not only for consumers but also for the more honorable
software companies; it will reward companies that try to grab market share
by rushing to market with buggy software.
"If there are no refund rights, no lawsuit rights, no legal disincentives,
then companies that ship prematurely enjoy an unfair advantage," Kaner says.
"In the process of protecting the worst companies from the consequences of
their worst products, we pressure better companies to do a worse job."
From: RISKS DIGEST 19.73
From: "Simson L. Garfinkel" <firstname.lastname@example.org>
Subject: Defeat New Copyright Legislation
[This is Simson's article in *The Boston Globe*, 7 May 1998. PGN]
Two bills that are up for a vote in the House of Representatives could
seriously jeopardize the right of Americans to read in the next century.
The backers of these bills say that the legislation is necessary to protect
the interests of creative individuals and publishers in the digital age.
But the legislation goes further by allow publishers to repeal the "fair
use" provisions of today's copyright law and creating a whole new category
of intellectual property.
The first bill, strongly backed by the Clinton Administration, is the "WIPO
Copyright Treaties Implementation Act," (H. R. 2281). This bill is designed
to implement sections of the World Intellectual Property Organization treaty
that was adopted back in December 1996. The bill creates a new kind of crime
in US law, the crime of "circumvention." It's a kind of crime that one would
expect in George Orwell's 1984, rather than in the America of the next
H.R. 2281 is being supported by big publishing interests including Time
Warner, Viacom, the Motion Picture Association of America, and Microsoft.
These organizations are terrified by the way computers and digital networks
make it easy to copy books, songs, videos and computer programs. For years
these groups have tried to stop illegal copying with copy-protection
systems. H.R. 2281 would make it a crime to subvert these systems for any
The problem with this legislation, says Adam Eisgrau, Legislative Counsel
of the American Library Association's Washington Office, is that many
publishers are likely to use copy-protection systems to restrict activities
that are otherwise lawful.
For example, many web sites on the Internet today as you to register with
your name and e-mail address before you can view the information that they
contain. A substantial number of people bristle at this notion, and they
have figured out ways to circumvent the registration process. Under the
legislation, these people could be sued and awarded $200 to $2,500 in
statutory damages for each web page that they viewed.
And its not just consumer groups that are upset about the legislation. As
it currently exists, the legislation would make it a felony for engineers
to open up competing products and see how they work--- "something that is
essential for achieving interoperability in the industry," says Lowell
Sachs, the government affairs representative of Sun Microsystems. "So far,
the House has failed to focus upon the very real threat that its actions
could pose to competition and innovation in the United State."
The criminal provisions of H.R. 2281 apply even if the offender is legally
entitled to the information that is under copyright management control. For
example, the Supreme Court has ruled that individuals have a right to record
movies off the air and view them at a later time. Nevertheless, the film
industry doesn't want us to make our own tapes---they want us to buy
pre-recorded tapes. In the future, the film industry might create a new
copyright protection system that prevents home taping off the Internet
unless a person pays an additional fee. Under the proposed legislation, a
person who circumvented this new copy-protection system and made their own
legal home copy would nevertheless be guilty of circumvention, and
potentially subject to a fine of $500,000 and 5 years imprisonment for the
The author of the bill "are very clever," says Adam Eisgrau. "They don't
repeal the legal basis of fair use," which would create a huge political
outcry. Instead, the legislation "creates a new law which makes fair use
impossible to exercise, unless the appropriate price is paid." And that's
not Fair Use at all.
The second bill that should give lawmakers pause is H.R. 2652, the
"Collections of Information Antipiracy Act." This law, if passed, would give
legal protection to the contents of databases over and above what is
provided by today's copyright law.
The database law finds its genesis in a 1991 Supreme Court decision, Feist
Publications, Inc. v. Rural Telephone Service Co., in which the Court ruled
that the factual information in a telephone white pages---a large database
of names, addresses and phone numbers---cannot be copyrighted. This decision
is one of the key factors responsible for the proliferation of "white pages"
services on the Internet like Switchboard.COM.
H.R. 2652 would basically overturn the Feist decision, making it a crime to
extract date from a "collection of information" and use it in a way that
harms the real or potential economic interest of the collection's owner.
One of the fundamental problems with this bill, says the EFF, is that
there's no limit to the kind of information that can receive protection once
it is put into a databank. In particular, government information and
information that's in that's already in the public domain could be dropped
into a computerized databank and then receive new, copyright-like
protections. And the Act doesn't have any exemptions for "fair use."
So how could all of this impact on our right to read? Just ask Richard
Stallman, founder of the Free Software Foundation. In his story "The Right
To Read," Stallman argues convincingly that new restrictions on information
will ultimately force people to pay for every book and article that they
read, whether they are at home, at work, or at school.
Stallman's story is a science fiction parable in which one college student
risks imprisonment by lending his computer to his girlfriend and telling
her his password---in effect, giving her access to books that he has
licensed for himself. "Dan knew she came from a middle-class family and
could hardly afford the tuition, let alone her reading fees. Reading his
books might be the only way she could graduate," Stallman writes. You can
find the entire story at http://www.gnu.org/philosophy/right-to-read.html
Indeed, if you want find out more about these issues, there's no better
place to turn than the Web. A group opposed to the legislation called the
Digital Future Coalition has put together a website at http://www.dfc.org/
explaining the problems. Meanwhile, a group of publishers have banded
together and created their own competing group, the Creative Incentive
Coalition. You can find its website at http://www.cic.org/. Finally, you
can download the full text of these bills from the Library of Congress's
Thomas system at http://thomas.loc.gov/.
But hurry, while you still have a right to read.
© 1998 Peter Langston