mcgrew's Journal: EULA forgot to breathe (6/16/2002)

(Apologies to NON-U.S. citizens; this is a U.S. rant. It may or may not apply to you and your countrymen's rights, depending on your country's laws and/or constitution. You might contemplate it, and see if you can affect change in your country for the betterment of yourself and your countrymen)

By reading this web post, you agree to hold its authors, heirs, assignees, friends, relatives, and total strangers harmless of any blame for anything whatever at any time.

By reading this you agree that the owner has the right to ransack your house looking for illegal copies of it, or for any other reason whatever. You also agree that the author can take anything from said premises for any reason, and for any length of time, and shall be held harmless from any damage or destruction of said goods.

You agree that you will give me more money every year whether "product" or "content" is delivered, or whether such "content" is helpful, beneficial, or even harmful.

You agree not to file suit against the author, his friends, relatives, heirs and assignees, or total strangers for any reason whatever, up to and including violent bloody murder.

By clicking on the link to this page ("opening the package") you have agreed to all the agreement's terms.

Sound stupid? No more stupid than Microsoft's, Adobe's, Id's, or anybody else's EULA.

End user license agreements are NOT supported by Unites States copyright law in any way, shape, or form. There is NO provision for them whatever. In fact, there is no constitutional provision for the concept of "intellectual property".

Unites States copyright law gives an author or artist a monopoly for "a limited time." It is a COMMERCIAL MONOPOLY. You may not make copies of a copyrighted work and sell them. If you do, the copyright holder can collect damages from you, which would include all your profits, plus court costs, plus "punitive" damages.

In short, if John Carmak catches you selling copies of Quake, he could make more money from you than he could have by selling Quake directly to the folks you sold your illegal copies to.

Under United States law, you may freely copy anything you want so long as you do not charge for it. That is why (duh!) there are photocopiers in libraries- in fact, why libraries exist at all. Making a copy of Unreal Tournament to have a LAN party is NOT illegal. The EULA in the box is not worth the paper you didn't sign in the first place.

So how did the EULA ever happen? It's all the computer's fault!

Before computers, there were no EULAs. Copyright license agreements were a pact by an author with a publisher, or with a publisher and another publisher. Mark Twain wrote a book, nobody owned the words he penned- but nobody but he could sell those words. Mr. Clemons could publish and sell those books himself, as he had a copyright for a limited time (under 20 years in Samuel's day), or he could sign a contract with a publisher allowing that publisher to print and sell Mark Twain books.

When Joe Averageguy bought a copy of Tom Sawyer, it was his. He could legally do anything he wanted with it. He could look at it, read it, tear the pages out and use it for toilet paper- it was HIS. He could stick it on a photocopier (if there had been such a device) or transcribe it. So long as he only gave his transcriptions away and did not take anything in return, he broke no law.

In the middle 20th century, shortly after computers were developed, there weren't very many of them. As it takes quite a few man hours to develop software (especially with the primitive tools of the time), it was incredibly expensive per copy to make a "break even point."

To maximize revinues (which were coming from only the largest and wealthiest companies in select industries, like the insurance industry), software companies didn't just print source out in a book or stamp it into 33 1/3 vinyl albums (although it would have been technically feasable) and SELL them like books and records. They couldn't, there would be no way to make a return on all the man hours they had invested.

So rather than sell anything, they wrote up a contract, a "license agreement" that in effect made the end user a publisher without rights to print. The contract said that I, Joe Programmer, would install this program on your computer, and you were not allowed to make copies of it. The contract was printed up on old fashioned analog paper and signed with an analog pen on a piece of analog paper. A REAL signature with a REAL pen on REAL paper. It was a REAL contract.

Please excuse this important digression-

I have the freedom of speech. You cannot make me shut up.

OK, yes you can. You can pay me to shut up. You can write up a contract stating that you will give me so many dollars, and in return I will agree to shut up. If I then speak, you can sue me in a court of law, and WIN. I will likely have to pay you whatever you had paid me, plus some.

Would my free speech rights be violated? In no way. My free speech rights would have been sold, by me, in a free marketplace. I have the right to give up my rights.

In the same way, the computer owner's constitutional fair use rights were not violated- he agreed, in writing, to give them up.

Fast forward thirty years. Computers were now small enough to sit on a desk and still be useful. Economy of scale had grown so it was no longer feasible to charge hundreds of thousands of dollars for a single installation of a piece of software, and neither was it feasible to get an agreement in writing from each and every user of a machine or its software.

So they just stuck the license agreement in the box.

Folks, an unsigned agreement is not an agreement. Clicking "I agree" is no more an agreement than speaking the words "I agree". A verbal agreement, as lawyers say, isn't worth the paper it's printed on.

Lets fight this monster. If everyone is in agreement that these things are legally binding without your signature, it might as well be fact, it WILL be fact, and big business will have the power to write anything into "law" they wish WITHOUT bribing politicians with campaign cash.

They are, in fact, doing their damndest to make this real.

In the 1970s the record companies (as they were called) tried to sue to outlaw cassette recorders on the grounds that they could make cassettes that could then be copied with the record companies' songs and the bootleg cassettes illegally sold.

The courts said no, these are perfectly legal. Unfortunately for the big multinational conglomerates, the American citizen has rights, too. The right to make a "talking letter" and send to Grandma, for instance.

The right to tape "They're Coming To Take Me Away, Ha Ha" off the radio. The right to give that tape away. The right to do anything with that tape recorder short of copying a copyrighted record and selling that tape.

By the early 1980s the VCR had arrived, and now it was the movie industry's turn to litigate. And lose. VCRs are perfectly legal, as is renting a copy of "Fantasia" and making a copy for yourself.

Copyright protects the author against commercial misuse, and no other kind of use.

The fact that the newer copies are digital makes no difference.

The entertainment industry is trying to extend the worthless software "license" (the unsigned "agreement" that you don't have to agree to to agree to) to VCR tapes, DVDs, and even record albums.

Don't lose sight of your constitutional RIGHT to make as many copies of Metallica's "Free Speech For The Dumb" as you want, in any format, and to give as many copies of that song away to as many people as you want to.

Just don't try to sell them. That is both illegal and immoral.

Don't try to profit otherwise, like Napster did. If Napster had not been a commercial entity, the trial would have gone very differently. Notice that nobody is suing the fellow who wrote Gnutella- he did it for free.

Copyright is about commerce, not property. There IS a difference. A haircut is commerce, too, but it also is not about property. Your barber does not own your haircut, and neither do you. It just IS, like water.

Words, pictures, ideas, under U.S. law are NOT property despite what Michael Eisner would like you to believe.

Your rights and freedoms are under attack. Your ignorance is your enemies' greatest strength. It behooves you to educate yourself about your constitutional fair use rights before you wind up giving them away by default.

You can play Unreal Tournament or fight for real. Your choice. You can do both, you realize!

Here is MY eula:

"By accepting my money, you agree that what I buy belongs to me, under law, and it is mine to do as I please with, including making as many copies as I wish and giving them away if I wish, as proscribed by US law. I will agree not to sell any copies of this work, also as defined by US law."

Sounds fair to me. 6/16/2002 Springfield Fragfest
Note: parts of this ten year old rant may be incorrect.