Subject: RE: Interesting Microsoft license clause re open source
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Thu, 28 Jun 2001 16:17:31 -0700

 Thu, 28 Jun 2001 16:17:31 -0700
> On Wednesday 27 June 2001 08:27 pm, Lawrence E. Rosen wrote:
> > First, you will almost certainly be held to the reasonable 
> > terms of a shrink-wrap agreement accompanying any of the common, 
> > widely-available, commercial software packages.  Nobody on
license-discuss 
> > can claim to be ignorant of software licenses and pretend to be a 
> > babe-in-the-woods when it comes to accepting software under such
licenses.  
> 
> On Thursday 28 June 2001 09:01 pm, David Johnson wrote:
> This is an interesting statement. Are you implying that the general 
> acceptance of a state of affairs is sufficient to make it law? I
always 
> thought that law was supposed to be a bit more objective than that.

Not quite.  What I meant was that courts are unlikely to upset the
entire foundation upon which the distribution of almost every item of
commercial software is based.  Not that it is impossible, but courts are
usually quite accepting of what has become commercially commonplace.
And they are likely to be unaccepting of an argument that you didn't
know what the common commercial expectations are.   

> What happens if I read the MS EULA and disagree with it? How can I be 
> prevented from making archival copies and reverse engineering it?

The standard argument MS will make is that if you have actually read the
agreement and disagree with it, don't use their software.  Certainly
that's what I would say if someone said they read the GPL before using a
piece of free software and "disagree with it."  On the other hand, if
you can identify a clear reason why a license term is unenforceable,
then you are free to take the risk of defending a breach of contract or
infringement lawsuit.  

I don't remember reading that the MS EULA prohibits making archival
copies.  (I haven't re-read the agreement to verify that.)  But 17 USC
117 expressly authorizes the making of a copy for achival purposes
under certain conditions; the making of such a copy is not an
infringement.  

> > Second, the fact that you haven't "negotiated" the terms of such
> > licenses probably only means that *unreasonable terms* of 
> > such licenses are unenforceable. 
> 
> Wouldn't clauses that take away users rights that have 
> already been granted 
> by copyright law be considered unreasonable?

I don't know what "users rights" have been "granted by copyright law."
The right to reverse engineer isn't one of them.  (There are state laws
that authorize reverse engineering, but the effectiveness of such laws
in the era of the Digital Millenium Copyright Act is up for question.)
Rights are typically granted by licenses.  So, as a general matter, the
answer to your question is "No."  The determination of whether a clause
is "reasonable" or "unreasonable" is not easy or obvious -- and
certainly can't be discussed in the abstract.

/Larry Rosen
650-216-1597
lrosen@rosenlaw.com
www.rosenlaw.com