Who would have guessed I have so many constitutional scholars amongst my readers? My recent weblog item where a software company owner suggested copy protection is unconstitutional brought a massive response from readers arguing many different sides of the issue.
Many readers passionately agreed with the software company owner that DRM (digital rights management) is being used unfairly on software products. "As an IT consultant, CIO, and a former writer of custom applications, all I can say is that I absolutely agree," wrote one reader. "Copy protection on sold software should be illegal. And so should violating the copyright. These elaborate copy protection schemes reflect a particular kind of corporate paranoia and cowardice that are anathema to people who believe in the principles on which this country was founded. Until software buyers start refusing to buy protected software, it will only get worse."
But even many of those who agreed in spirit with the software company owner pointed out that the Bill of Rights only restricts government action. "The argument about constitutionality is compelling, but completely without credence," wrote a reader who is attorney. "The first, fourth and fifth amendments enumerate rights which the constitution implied were 'reserved' by the states, creating federal rights protecting individuals from GOVERNMENT intrusion. I have an absolute right to search my employees' desk, my employees' locker or, for that matter, my children's rooms if I elect to do so, but neither my home state or the Federal government may do so without a warrant. One can contract away any right, whether constitutional or otherwise --- and the software companies' contracts grant 'licenses' to use their product. I don't like it; I'm not happy about it; but if I choose to do so I can vote with my wallet, or use open source."
Another reader went further, arguing that copy protection is not only constitutional but justified. "I find completely unconvincing the argument that product activation primarily punishes legitimate users," the reader wrote. "I know very few people who don't cheat on software licenses to some degree when they can. My own house was never fully legal with respect to Windows licenses until Windows XP's product activation feature made it hard to cheat. I wish we were all better people, and that product activation weren't needed, but from what I've seen, product activation, disruptive though it is, is a necessary mechanism for software vendors to limit piracy. But, it's a blunt instrument, and one that costs the vendors a great deal in the process of making us legal. What is really wanted is a reliable software metering technology that would permit meaningful pay-by-usage licensing."
The more popular opinion was in favor of the software owner's basic message. "As with most computer users, over the years I've nodded at the licensing and activation hoops I've been asked to jump through and gone ahead and jumped," wrote one reader. "However, in this age where many of our rights are being curtailed -- or even yanked right out from under our feet -- your reader's comments about several of the Bill of Rights being trod upon by copy protection schemes has struck a chord. I find myself agreeing with him and think that this may be the time to take action."
Certainly not all readers bought the idea that sneakwrap licenses are binding contracts that can deprive you of any and all rights. "In law class, we were taught there are several basic requirements for a valid contract," wrote one reader. "These include (1) a value given in exchange for (2) a value received, (3) a "meeting of the minds" on the terms of transfer and entitlement, (4) a specific description of the things to be transferred, and (5) a timely, INFORMED consent on the part of both parties to the contractual terms. What the heck has happened to part (3) and (5) of basic contract law? Have all the basic legal protections existing in thousands of legal precedents simply been forgotten in the software companies' mindless legal prose? Has the "Twinkie defense" syndrome come to contract law? Can any of these things be deemed to have happened by the mere act of opening a package without ever even having seen the contract? When did deliberate deception in a contract become the de facto standard for an acceptable contract?"
A few readers advanced the idea that, by making DRM inviolable under the DMCA, the government is complicit. "The obvious response to copy protection being unconstitutional is that the fourth amendment applies to the government, not private companies," one reader wrote. "However things aren't so simple when it comes to this issue. Under the DMCA the government agrees to assist companies with whatever copy protection schemes they come up with. As you've written about many times, this allows companies to create rules on what can and can't be done with their copyrighted works, and the government will enforce this as if it were law. Since companies are effectively writing their own laws based on power granted from congress, that power is limited by the Constitution."
And there's another way to look at this issue of constitutional protections. "Perhaps the constitution should protect American citizens against each other and corporations, as well as the government," read one posted comment. "Who should the average U.S. citizen be protected against: the U.S. government or U.S. corporations, or both? Just a thought from an outsider, an interested South African. Have a look at South Africa's constitution and bill of rights, which bind all legal persons, natural (i.e. people) and juristic (i.e. corporate), to the same set of standards to protect individual persons."
So let's hear your thoughts on this discussion. But let me not make the mistake I made last time by suggesting you e-mail me. Please post your comments on the GripeLog version of this story, so everyone can see what you have to say. After all, I don't want to deprive anyone of their constitutional rights just because I'm a slow reader.
Read and post comments about this story here.
11:39:28 AM 
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