Relay-Version: version B 2.10 5/3/83; site utzoo.UUCP
Posting-Version: version B 2.10.2 9/18/84; site brl-tgr.ARPA
Path: utzoo!linus!philabs!cmcl2!seismo!brl-tgr!tgr!RStallworthy%pco@CISL-SERVICE-MULTICS.ARPA
From: RStallworthy%pco@CISL-SERVICE-MULTICS.ARPA
Newsgroups: net.micro
Subject: Re: Software License Bill - California
Message-ID: <10938@brl-tgr.ARPA>
Date: Wed, 22-May-85 20:34:29 EDT
Article-I.D.: brl-tgr.10938
Posted: Wed May 22 20:34:29 1985
Date-Received: Fri, 24-May-85 21:23:13 EDT
Sender: news@brl-tgr.ARPA
Lines: 58

[]

Someone has entered the text of the bill in this forum.  Although a previous
comment indicated the bill "legislates CRIMINAL penalties", I see no reference
to such penalties in the text entered.  Further, since the bill indicates that
it is an addition to the civil code, I would not expect there to be criminal
penalties connected with the bill.  Of course, that does not mean that I like
the bill.

The shrink wrap "license agreement" referred to in the bill complete with the
acceptance and restrictive clauses mentioned, are present in today's software
products without such legislation, and as such are attempting to be contracts,
except that there is no opportunity to negotiate such a contract, which tends
to invalidate them.  This legislation would legalize (parts of) such a
contract while one of the parties remains effectively unreachable to negotiate
the contract.  If a contract is what the publisher wants, they could
theoretically do this today, by having the contract signed by the purchaser in
the store before delivery is taken, and in the case of mail order, sending out
contracts for signature in advance of the sale (could be included in
advertising even), and not supplying the product until contracts would return.

Of course, none that I know of do this today, I presume because it is
inconvenient, difficult to enforce (that the retail vendor will get a signed,
unmodified, contract), that the retailer might choose to stock other products,
or otherwise diminishing the market for the software.  All of these relate to
there not being two parties to the contract.

By the way, I have received software by mail order where the shrink wrap had
already been removed.

The copyright laws incorporate a clause or doctrine of fair use.  I see no
such provision in the California law.  It has been pointed out that the
doctrine of fair use is what permits an act which is technically making a copy
of the document from the magnetic (diskette) media which is the original, into
RAM (random access memory) inside the computer, because the product cannot be
used for its intended purpose without this act of copying.  In contrast, the
California law makes no mention of fair use, and permits, as one of its
clauses in the license agreement, "the prohibition of any copying".

I think my biggest complaint with the clauses seem to be that they can be
unfair to the legitimate user of the software, and at the same time have very
little effect on the spread of pirate copies of the software, which are
already a violation of the copyright laws.

Prohibitions on modification prevent you from legally making the software work
on your machine, if you know how, and on reverse engineering, prevent you from
legally finding out how.  Prohibitions on transfer, assignment seem inherintly
unfair (say you sell your machine and buy a new one -- you can't legally sell
your software with it and you can't legally use it on the new machine either),
and the prohibition on rental, means that you cannot legally rent a machine
either, (unless you purchase the software for that one time use).

When looking at the law for creative uses, I note that it applies only to
"computer software".  One wonders how many things may aquire a piece of
software as an inseperable part, merely to prevent their being legally
transferrable or modifiable.

RStallworthy%pco at CISL