Hi, Kelly, and everyone else,
This is just too important an issue to let your opinion go unchallenged.
> >That isn't the main problem issue. There are two: one is that
> >reverse engineering would become illegal.
>
> UCITA does NOT forbid reverse engineering. This is a common myth.
> What UCITA does is make enforceable covenants that may prohibit,
> amongst other things, reverse engineering. It's arguable that such
> covenants are _already_ enforceable.
Some really bright people, including some really bright attorneys disagree
with you. Let's start with an Open Source advocate, Richard Stallman:
> UCITA has another indirect consequence that would hamstring free software
> development in the long term -- it gives proprietary software developers the
>power to
> prohibit reverse engineering. This would make it easy for them to establish
>secret file
> formats and protocols, which there would be no lawful way for us to figure out.
>
There is an analysis prepared by the Principal Financial Group discussing
business impacts which applies:
> Section 209 of UCITA establishes the enforceability of shrinkwrap and clickwrap
>license
> "agreements". These contracts of adhesion, rarely read by anyone, have had a mixed
>history of
> enforceability. UCITA validates these unilateral "agreements" without imposing
>adequate
> restrictions on the types of provisions that the licensor may include in the
>license. Presumably,
> the unconscionability limitation set forth in Section 111 would apply to business
>licensees, even
> though there is no specific mention of unconscionability in Section 209 as there is
>in Section 210
> (the latter dealing with "mass market" licenses). However, as those in the legal
>community know,
> the circumstances in which courts find contract provisions to be unconscionable are
>extremely
> limited and rare. Many provisions that are overreaching will not be held
>unconscionable.
>
Therefore, if Microsoft's (or anyone else's) license says that you cannot
reverse engineer, UCITA will give that the force of law.
The FTC's analysis is also telling:
> Further, UCITA expands the scope and power of contracts, particularly
>contracts designed by
> software vendors and intellectual property owners. The effect of such a
>change is potentially to
> provide state contract law with primacy over federal intellectual
>property laws in those cases where
> the licensor seeks to acquire or restrict rights beyond what federal or
>state law permits. For
> example, if a state were to adopt UCITA, state law could permit licensors
>to include anticompetitive
> grantback terms in a license that reduce the licensee's incentive to
>engage in research and
> development, unless the licensee took on the uncertain task of
>challenging the term subject to
> UCITA Section 105.(7)
>
If you can't legally engage in R&D, you can't reverse engineer, can you?
> >So... you'd have to rip out your MS Office filters and the like from
> >things like KOffice and Star Office, in effect guaranteeing the MS
> >monopoly. For Adobe, that means .pdf, a proprietary format, could
> >only be offered by Adobe.
>
> This is completely incorrect and expresses a serious lack of
> understanding of what UCITA would actually do.
IMHO, the FTC lawyers have a better understanding than you, as a law
student, have. I can go on and on with quotes and studied interpretations
of those quotes that would argue that reverse engineering can and would be
banned.
Perhaps your interpretation is correct, but I am not willing to take that
risk.
Regards,
Caity
************
[EMAIL PROTECTED] http://www.linuxchix.org
