The View from 2005: Boy, have times changed! Since this was written, the so-called content holders have essentially hijacked the intellectual propery system and paid off Congress to redefine it in their image (the Digital Millenium Copyright Act). They treat everyone as thieves (we aren’t), and have tried to convince us that they are long-suffering victims of abuse (they aren’t). Meanwhile, they still refuse to accept or honer the notion of fair use, and by extension of that, continue to violate copyright law themselves. As for shrink-wrap licenses, they’re gone, replaced by “click-through” licenses that deny you the right to use the software unless you involunarily “agree” to multiple pages of legalese essentially committing your first seven children to them in return for ANY infraction, no matter how trivial. As for my suggestion that you write your Congressman, just remember that she/he/it is almost definitely on the take . . . Enough said. It’s an ugly, corrupt business. We should be ashamed!

Copyright is a deal between you and the Feds where, in return for your generosity in publicly sharing your creative work, the Feds will give you a limited monopoly on the commercial use of that work. The copyright laws were written before computers came into broad use, and as a result the current situation is a combination of chaos, vigilante techno-law and fractal infopiracy. I got dragged into this a couple of years back by the Feds for a study of Home Taping, and ended up learning far more than I ever wanted to know. Since then I’ve been amazed and astounded by the range and depth of bullpucky, general larceny and just plain silliness involved in software copyright protection.

Software is copyrightable, just like other intellectual property (books, music, paintings, photos, etc.). Basically, copyright gives the holder of same the exclusive right to copy, display, distribute, perform, and create derivative works of the copyrighted item. Such rights are subject to a bunch of limitations, which put a time limit on your copyright, let people study and cite your work, give at least some rights to the people who buy your work, make provisions for archiving, non-commercial broadcast, compulsory licensing (if your work is a recording), etc. There is even a truly obtuse and dated paragraph about computers which says basically that the same rules apply to “automatic systems capable of storing, processing, retrieving or transferring information.” Sheesh!!!

Meanwhile, the software folks have a big problem: it’s a cinch to copy and distribute their work. They would naturally prefer that you didn’t copy it, and that everyone PAY them, handsomely, for copies. This isn’t entirely unreasonable and the law generally supports it. However, just because it may violate publishers’ legal rights doesn’t stop lots of people from making copies anyway, for the simple reason that it’s often cheaper ‘n easier than buying. This naturally makes the publishers paranoid, mean, and otherwise truly weird, and so they have Taken The Law Into Their Own Hands.

This comes in two basic guises: (1) the Shrink-Wrap License, and (2) Copy Protection. Uh-oh!

The Shrink-Wrap License is that nasty little thicket of legalese printed on the floppy disk envelope that starts out, “Warning! By Opening This Envelope You Agree To: . . .” Now, when I read something like this, it usually makes me equally paranoid, mean and otherwise truly weird, and so I start hyperventilating, take Prozac, write “Not Agreed” on the envelope, date ‘n sign it, open the envelope anyway and then calm down and get on with my life. The Feds take a dubious view of these licenses, noting, “The legality of such contracts has been tested in only one State, Louisiana . . .”

Meanwhile, if the advertising didn’t specifically advertise a “license” for sale or you bought the software from a third party, the software publisher may be in violation of truth-in-advertising, mail fraud and bait ‘n switch laws, and it is probably breaching an executed sales contract as well. Whatever. I suspect the publishers don’t really intend to enforce this “license,” but only hope to intimidate and hype you into believing that you have obligations and they have rights that are significantly greater than your real obligations and their real rights under law. Blëuuuuuaahhhhhh! (That’s Grotonese for “barf.”)

Copy Protection is a little more serious. The publisher sabotages the software to prevent it from being copied, or to limit the number of copies or require a key disc for use. Sounds pretty reasonable, they wrote it, right? Problem is, along with treating the honorable paying customer like contemptible slime, it violates copyright law! Excuse me? Yup, tis true. There’s no provision for expiration of copyright, fair use, archiving, ephemeral recordings, etc. Problem is, you have rights too! And it just isn’t fair that you should have rights too!!!