We all hate EULAs. We don’t read them, even when the little checkbox that indicates we’ve read and agreed to them won’t go away until we’ve scrolled all the way to the bottom of the 5,000 words of legalese. When some enterprising soul does read one, usually in anticipation of new version of Windows or Mac OS, he’s always shocked at what he finds, and blogs about it to the world. The world blogs back, and blogging deathmatches ensue until the terms of the agreement are lessened. Of course, this has always been a mostly meaningless exercise, since there is already a law in place that governs how we can use software we’ve purchased. 17 USC Section 117(a)(1) tells us that you are free to make a copy to RAM of any software you own (regardless of what the EULA says) provided:
(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner
Seems pretty cut and dry. Even though you don’t own the copyright, if you buy software, you can use it. The copying of it to RAM would seem to technically violate the copyright, but this law explicitly says that it doesn’t. Until yesterday.
In a summary judgement for Blizzard, the Ninth Circuit held in MDY v Blizzard that this section of law does not apply to anybody. Purchasing a copy of software does not make one the “owner” of that copy under section 117. The section of law that applies to this class of people (“licensees”) is section 106, which makes it illegal to make a copy of any work to which you do not hold the copyright. The use of software is only legal if you are given the right by the copyright owner, in this case through the EULA, and therefore if you violate the EULA, you are in fact infringing on the copyright. Unless I am mistaken, the only way to be the “owner” of a copy of software is to be the owner of the copyright itself, making Section 117 redundant. I can’t imagine the law was intended to be interpreted this way.
This ruling also sets a bad precedent for the status of other legally purchased digital property. If this judgement is correct, Fair Use does not exist. While it hasn’t been tested in court, it is generally assumed that one has the right to copy CDs for archival purposes and transfer to a different medium (Section 117(a)(2) seems to say this, as well), but all it would take would be some text printed on the inside of a CD case to explicitly make that use illegal. No contract needs to be signed; the owner of the copyright simply has to make reasonably sure that “licensees” read the agreement. Of course, this amounts to agreeing to a contract you haven’t seen, since no stores will allow to open software boxes or CD cases before purchase, and most won’t allow you to return opened software or CDs should you not agree to the terms. Since breaking the terms of this agreement now makes one a criminal, that is a bigger deal than ever before.