CHE: Scholars, Libraries Groups Seek Clarification on Software Licenses

Seth Johnson seth.johnson at
Sat Oct 26 23:41:59 UTC 2002

(Forwarded from TransHumanTech list; originally from the
Chronicle of Higher Education)

-------- Original Message --------
Date: Sat, 26 Oct 2002 17:58:59 -0500 (CDT)
From: Premise Checker <checker at>
Reply-To: transhumantech at

Legal Scholars and Library Groups Seek Clarification From
Court on Software Licenses

News bulletin from the Chronicle of Higher Education,


Law professors and academic-library groups are asking a
federal appeals court here to modify a recent [2]ruling to
make it clear that established copyright provisions, like
fair use, sometimes trump software-licensing agreements that
would otherwise narrow consumers' rights.

The case in question, Harold L. Bowers v. Baystate
Technologies Inc., involves the shrink-wrap license on a
piece of software Mr. Bowers created to improve
computer-aided-design software. Mr. Bowers, of Memphis, said
Baystate had purchased a copy of his software and then
"reverse-engineered" the product -- figuring out how it
worked and then creating a similar product for sale under
Baystate's name.

Mr. Bowers told the court that Baystate had violated the
terms of his software's shrink-wrap license, which prohibits
purchasers from reverse-engineering the software. Such
licenses are typically found inside the box containing the
software, and are printed on the envelope containing the
CD-ROM or disk. The U.S. Court of Appeals for the Federal
Circuit agreed in August that Baystate, based in
Marlborough, Mass., had breached its contract with Mr.

Baystate had argued that the Copyright Act pre-empted the
shrink-wrap license's ban on reverse engineering, as well as
other restrictions in the license. Such restrictions prevent
fair use of copyrighted material, the company said.

The scholars who are seeking clarification from the court
don't necessarily agree with Baystate that the Copyright Act
overrules Mr. Bowers's shrink-wrap license. Rather, they
say, they are concerned that the court's decision is a
"blanket rule" that shrink-wrap licenses "are never
pre-empted." Because the terms of the licenses are written
by the sellers and vary widely from product to product, the
scholars are worried that the licenses do not necessarily
recognize longstanding assumptions of copyright law, such as
fair use.

Computer-science researchers are also concerned about the
provision in Mr. Bowers's license banning
reverse-engineering, which the researchers say is an
important technique in their discipline.

"What we want is for the court to acknowledge the importance
of reverse-engineering, and to change its opinion so that it
doesn't hold that shrink-wrap licenses can automatically ban
reverse-engineering," says Mark A. Lemley, a law professor
at the University of California at Berkeley. He says
reverse-engineering promotes scientific progress.Mr. Lemley
wrote the brief that was submitted to the appeals court last
month on behalf of, among others, the Association of
Research Libraries, the American Library Association, the
Electronic Frontier Foundation, the U.S. Association for
Computing Machinery, and 33 professors of
intellectual-property law.

The [3]brief (requires [4]Adobe Acrobat Reader, available
free) states that the court's ruling has repercussions that
go beyond reverse-engineering. It could mean that by using a
shrink-wrap license at the behest of a publisher, consumers
waive all their privileges under the Copyright Act, the
brief reads.

"A scholar could lose his fair-use privilege to quote a
novel ... A library could lose its ability under the
first-sale doctrine to lend books."

The argument is reminiscent of that made by academic-library
groups that oppose the Uniform Computer Information
Transactions Act, or Ucita, a model law intended to make
software-licensing agreements uniformly enforceable in all
50 states. (See [5]an article from The Chronicle, September

Frederic M. Meeker, a Washington lawyer representing Mr.
Bowers, declined to comment on the case.


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