Friday, October 25, 2002

Legal Scholars and Library Groups Seek Clarification From Court on Software Licenses By ANDREA L. FOSTER Washington Law professors and academic-library groups are asking a federal appeals court here to modify a recent 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. Bowers. 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 brief (requires 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 an article from The Chronicle, September 13.) Frederic M. Meeker, a Washington lawyer representing Mr. Bowers, declined to comment on the case. Easy-to-print version E-mail this article

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