Re: Microsoft finally acknowledges the security drumbeats

From: D. J. Bernstein (djb@cr.yp.to)
Date: 02/13/02 

From: djb@cr.yp.to (D. J. Bernstein)
Date: 13 Feb 2002 20:16:54 GMT

Marty Fouts <usenet-user@usa.net> wrote:
> And, for the Nth time, when the courts have ruled on EULAs, they have
> ruled that they are enforcable contract causes, except when they have
> ruled against a specific clause of a specific EULA.

False.

Consider, for example, _Vault v. Quaid_, 655 F.Supp. 750 (E.D.La. 1987),
affirmed, 847 F.2d 255 (5th Cir. 1988). The district court held that the
Louisiana Software License Enforcement Act was preempted by copyright
law. The Fifth Circuit agreed in dicta and held that (``at least'') one
particular provision of the Louisiana Software License Enforcement Act
was preempted by copyright law.

The question is not whether the purchaser is trying to exercise freedoms
established by Congress. The question is not whether the license is
trying to take away those freedoms. The question is whether _the state
law_ is trying to take away those freedoms:

   Congress in 1790 enacted the first federal patent and copyright law,
   1 Stat. 109, and ever since that time has fixed the conditions upon
   which patents and copyrights shall be granted, see 17 U.S.C. 1-216;
   35 U.S.C. 1-293. These laws, like other laws of the United States
   enacted pursuant to constitutional authority, are the supreme law of
   the land. See Sperry v. Florida, 373 U.S. 379 (1963). When state law
   touches upon the area of these federal statutes, it is "familiar
   doctrine" that the federal policy "may not be set at naught, or its
   benefits denied" by the state law. Sola Elec. Co. v. Jefferson Elec.
   Co., 317 U.S. 173, 176 (1942).

_Sears v. Stiffel_, 376 U.S. 225 at 229 (1964). The same principle was
subsequently adopted by Congress:

   On and after January 1, 1978, all legal or equitable rights that are
   equivalent to any of the exclusive rights within the general scope of
   copyright as specified by section 106 in works of authorship that are
   fixed in a tangible medium of expression and come within the subject
   matter of copyright as specified by sections 102 and 103, whether
   created before or after that date and whether published or
   unpublished, are governed exclusively by this title. Thereafter, no
   person is entitled to any such right or equivalent right in any such
   work under the common law or statutes of any State.

17 USC Sec. 301(a). A state law that gives authors the right to sell
their works without allowing resale, fair use, computer execution, etc.
is obviously preempted. The states can't dodge this by redefining the
sale as a ``license.''

> Courts have ruled that EULAs are enforcable parts of contracts.

Judge Easterbrook has said that several times, yes, but you're wrong
when you claim that everyone agrees with him, and you're wrong when you
claim that state law (whether the Louisiana Software License Enforcement
Act or the similar UCITA) can resolve the issue.

---D. J. Bernstein, Associate Professor, Department of Mathematics,
Statistics, and Computer Science, University of Illinois at Chicago

Relevant Pages

  • Re: Microsoft finally acknowledges the security drumbeats
    ... particular provision of the Louisiana Software License Enforcement Act ... was preempted by copyright law. ... > Courts have ruled that EULAs are enforcable parts of contracts. ...
    (comp.security.misc)
  • Re: sf not worth stealing?
    ... that, if something approximating contract law were not in place, most ... Surely you mean "copyright law" as any sort of license agreement is ... effect as shrink-wrap EULAs do for software. ...
    (rec.arts.sf.written)
  • Re: Oem cd clarification requested
    ... > agreements to a court of law before releasing the agreements to the parties ... If that were actually the case, the courts ... of US patent laws and Microsoft's OS EULAs to their citizens, ...
    (microsoft.public.windowsxp.general)
  • Re: Activate Windows XP Pro on Entirely New System
    ... EULAs, of which WinXP's is an example, _are_ enforceable, unless it ... can be demonstrated that their terms violate some other specific law, ... contracts accompanying the sale of products, ...
    (microsoft.public.windowsxp.general)
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