Copyright Control

Copyright law is "interesting" to say the least — and incredibly contentious. For some, it is an evil that stifles progress. For others, it is all that stands between them and bankruptcy. As with anything, the nature of copyright is not black and white — there are not just shades of gray, but a whole rainbow of copyright colors.

One item to clarify before going forward: copyrights should not be confused with patents, which are even more contentious, especially in the software world. Copyright, at least in the United States, is automatic — copyright attaches to content as soon as it is created. (The option exists to register ones copyright, but doing so provides protections in addition to those imparted automatically.) Copyright protects creations — written material, works of art, musical compositions, etc. — from being used or claimed by others, much the way trespassing laws protect ones home from being used or claimed by others and a whole host of laws protect ones children from the same.

Patents also involve creations — inventions, advancements, and technologies. Like copyright, they prevent unauthorized use, in their case of an invention, but do so for a limited time. Unlike copyright, they are not automatically attached at creation, and indeed, may not be granted at all. Patents are something of a reward for openness — an ironic twist considering their use, we admit — the patent holder can only be granted exclusive use of their creation by patent after they reveal the details of their invention to the public at large. (The etymological root of patent is patere, meaning "to be open.")

Copyrights are categorized primarily by where one stands. If one wishes to make use of copyrighted material and is prevented from doing so, they are evil and hamper progress. For those whose work is protected from unchecked use by any at all, copyrights are more likely to be considered a blessing that protects ones livelihood and fosters progress by allowing them to continue to create. (It is, after all, hard to paint the Mona Lisa if one is too poor to buy paint.) As in all things, moderation is key. Using copyright laws to prevent others from printing copies of ones book for their own profit is one thing — preventing fans from writing stories about the characters for no profit but their own enjoyment is entirely another.

One of the better points of copyright law — at least in our opinion — is one that has recently been high-profile in the courts. The provision in question is the first sale doctrine, which provides a sort of middle-ground between copyright holders and their customers. Cutting out the hundred years of court decisions and Congressional enactments, the doctrine is that, once you sell a copy of your work, you lose control of that copy. That isn't to say that buying a copy of a copyrighted work confers the right to start selling photocopies of it, but it does confer the right to give away or sell that copy.

The doctrine has been under fire, at least as it relates to software, from a company called Autodesk, which sells a software product known as AutoCAD. Software makers have long asserted — with mixed results — that they don't sell copies of their software, they license them. One eBay seller, Timothy Vernor, ran afoul of this dubious designation while selling a copy of AutoCAD on the auction site. The software was a properly purchased copy, not pirated or otherwise illegal in itself, but as large companies are wont to do, Autodesk issued a DMCA take down notice, which eBay executed not just by canceling the auction, but suspending Vernor's account, which just happened to be a large part of how he pays his bills.

The Digital Millennium Copyright Act is, without question, one of the most frequently abused laws on the books. If the Computer Fraud and Abuse Act is the catch-all for internet crime, the DMCA is ten times over for copyright law. If you want something off the internet, the quickest way to be rid of it is to issue a DMCA notice, regardless of whether there is any basis for it or not, and that's exactly what companies like Autodesk do. There is recourse, however: Anyone who knowingly misrepresents that an infringement has occurred, or falsely represents that a take down was the result of a mistake, is liable for damages for their conduct.

Many believe that a take down notice is final — that once it is issued, the content in question must be removed by the ISP, and it is barred from restoring it. This is not the case, however. The affected party has the right to file a counter-notice denying that the material is an infringement, and if they do so, the ISP must restore it — the DMCA requires that the ISP wait ten days after receipt of the counter-notice, but not longer than fourteen days. If it fails to do so, then it is liable for damages from its failure, just as it would be if it had failed to remove the content initially. Unfortunately, the ISP is not required to disclose that this remedy exists. The only counter-counter-notice available to the original accuser is to file a lawsuit against the infringer.

It Vernor's case, he moved first, and sued Autodesk for damages, on the grounds that a) the first sale doctrine protected his sale, and b) his income was seriously damaged by the suspension of his eBay account. Autodesk, as most software makers do, insisted that the doctrine could not apply, because they didn't sell Vernor a copy, they licensed it to him. The Court, however, didn't buy it, with the United States District Court for the Western District of Washington ruling last week that Autodesk does indeed sell its softwarePDF, and it is thus subject to the first sale doctrine.

The Court appears to have struggled with conflicting precedents regarding the nature of software distribution, but eventually held that it is indeed a sale and not a license. It does not appear to have struggled with Vernor's allegations of abuse of copyright. The Court's order stated quite clearly that he failed to offer sufficient "argument or authority," and that in any case, the ruling that Autodesk could not prevent the sale rendered the matter moot. What was most clear, however, was that Autodesk lost.

iTWire's David Heath predicts three results of the decision:

Firstly, the lawyers who write software agreements will suddenly find they have more work than they can cope with – making sure that this can't happen from now on.

Secondly, it will definitely be appealed, but considering that this final judgement [sic] differs very little from the interim judgement [sic] from May 2008, this is unlikely to succeed.

Finally it will give strength to those who support the argument (first proposed by Borland in the mid 1980s) that the software be treated, for copyright / licensing purposes "just like a book."

We suspect the lawyers are already writing — if they didn't start the day the suit was filed. Appeals are almost as commonplace as DMCA notices, so that will be along before Vernor has his eBay account returned. As for the final, it would appear, at least from the bench, that it has already happened.


Justin Ryan is a Contributing Editor for Linux Journal.


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What is copyright control in relation to music

Steve P's picture

I see this term so many times in cd booklets;with regards to individual songs.Is it that the music is known to be owned by a publisher?

Software Licenses are Next to Go

Anonymous's picture

The problem for lawyers that write software licenses, so called EULAs, is that these licenses can not be legally binding. First, these licenses hardly meet the common law definition of a contract. There is no verifiable way for both parties to signify that they agree with the license. Second, even if "click to accept" is universally held to be a verifiable acknowledgement for both parties (which it has not been), the EULA agreements are unconscionable contracts. US Superior Courts in California and Pennsylvania have already struck down EULAs of Adobe and Second Life, respectively, as unconscionable and therefore null and void.

It is high time the software industry does start selling software "like a book." The whole point of EULAs is to restrict the use of the costumer legally without the customer being fully aware, which is the whole reason why unconscionable contract laws exist in just about every state.

Like it or not, software licenses will stick around in the USA

Chris Bumgarner's picture

Click-Wrap EULAs are often enforced by Courts in the USA. See, for example, Feldman v. Google (E.D. Penn. March 28, 2007) and DeJohn v. The TV Corp., 245 F. Supp. 2d 913 (N.D. Ill. 2003). These cases, and others, have determined that clicking an "I Accept" button or link is sufficient evidence of assent to the terms.

The Second Life case you refer to did not "strike down" the entire EULA. The Court simply refused to enforce an arbitration clause because it did not comply with the special rules for arbitration clauses. Bragg v. Linden Research, Inc. (E.D.Penn. May 30, 2007). The arbitration clause was the only part of the EULA that was determined to be unconscionable. The same court that decided the Second Life Case also decided the Feldman case mentioned above. The Court did not find the terms of service to be unconscionable.

I am not aware of any case against Adobe that "struck down" a EULA. If you are referring to Softman Prods. Co. v. Adobe Sys., Inc., 171 F. Supp. 2d 1075 (C.D. Cal. 2001), you are incorrect. The Softman Court found that Softman Products never installed the Adobe software, and thus could not have clicked on an "I agree" button. This means that Softman had not assented to the terms. The decision does not make any finding of unconscionability. If you are referring to a different case against Adobe out of California, please let me know what that case is.

The only instances I have seen where a court has refused to enforce a EULA happened in different circumstances. For example, when the terms are not listed on the download page, or when there is no "I accept" button. These cases do not stand for the broad proposition that all EULAs are unenforceable.

I don't like proprietary EULAs at all. But as long as the big software companies hold political weight, they will be enforced.

No news is good news

Chris Bumgarner's picture

First: "Judgment" is American English while "Judgement" is British English. We US lawyers stick with the AE.

Second: No, Jeff, this case will not help get the RIAA off your back. The RIAA's campain is against illegal copying. There was no allegation of illegal copying against Vernor.

Finally: So far, most commenters have misread this case and its holding. Read pages 8-9 of the decision "There is also no question that most software is transferred to consumers via licenses that restrict and expand their right to use it . . . The question before the court is whether the Autodesk License is a license that transfers ownership of the software copies included in AutoCAD packages."

In other words, the analysis is fact-specific. This case does not stand for the broad proposition that all software is sold. It only stands for the proposition that Autodesk sold (transferred ownership) its AutoCAD software in this instance. If the terms of the license and the circumstances of the transaction were different, the result could have been different.

I would also disagree with David Heath's predictions. This decision is not going to cause lawyers to become suddenly busy. In fact, this case is hardly all that interesting. We are dealing with precedent that dates back to 1977, which lawyers have been familiar with and have already attempted to deal with. This case hardly sets any precedent itself--it was decided by a trial court, whose decision is not really binding on anyone outside the participants.

I also disagree with Heath's assessment of the likelihood of success on appeal. The fact that the court twice analyzed the issues has no bearing on the success of an appeal. If the case is appealed, the Circuit Court will review the decision "de novo", or anew, without any deference to the trial Court's summary judgment.

Sorry to disappoint, I'm just tell you what the law is, and not how it should be.



Vance's picture

Judgement is a perfectly acceptable variant. Merriam-Webster considers it the equal of judgment, though slightly less commonly used.

We the people are giving these rewards...

Anonymous's picture

Gifts from the state - Copyrights are given for progress in the realm of man, and I for one count everything I do as a contribution, for example, as a creation I want each purchase to be covered by copyright. It's performance art and I want to control unauthorized redistributions. Also, any substantially identical licenses should be considered as sold and subject to the principle of final sale.(not unrelated to the doctrine of 'first sale')

Patents are gifts for progress in the natural realm, which is why they must be requested, and rewarding the first to find is right and the first to file is wrong - there was a day they had to be demonstrated, but our government is far too supine for that level of honesty.

I'm just sayin' it is our system... systems: silent in the breaking - unavoidable in the fixing.

nice article, thx Justin

Terrific piece

Jeff Siegel's picture

One of the best discussions of this topic I've seen, and I've been following copyright law as a writer for more than 20 years. My question: Can this ruling, that the software was sold and not licensed, now be applied to music to get the RIAA off our back?