June 12, 2003
On contracts
As it seems to have generated a bit of discourse, I'll write something about it. Some, especially Nick, have suggested that copyright is essentially a licensing contract between me and the record labels. I think this is a crock. When the RIAA went after those college students, it didn't charge them with breach of contract, but copyright violation. There's a difference, and they know it.
In fact, if it were simply a matter of contract, then filesharing could be completely okay. How? Consider this. Everyone knows about the "click-wrap" EULAs that we all ignore on a regular basis (Come on, have you ever actually read one of the blasted things? Be honest.), and in them it says "by clicking 'Accept,' you agree to..." Let's say I buy a copy of WinXP. Let's say that I then proceed to make a few dozen copies of this and sell them for a buck or two a piece, but do so without ever installing the software or clicking "Accept." Or maybe I simply cracked out the EULA from the install program so that I never had to hit F8. I either case, I have never "agreed" to the terms of their "contract." Is MSFT going to be any less pissed off at me? Of course not. Why? Becase copyright has nothing to do with contract.
So I think I've made the point that the copyright holders don't really care about contractual issues here. But more to the point, I don't think that the idea of the "implied contract" is something we want to endorse. If we do, then all of a sudden you could find yourself having acquired all sorts of contractual obligations simply by going about your daily business. To push the example, say a TV program contains embedded in the credits a clause saying, "By watching this program you agree to pay the creators $5 a piece." You just watched the program, and if we allow implied contracts, you owe $5. That's barking nonsense.
I guess at the base of it all is the idea that I really don't like the idea of "licensing" things that you've essentially purchased outright. Say I have a piece of software that doesn't work like, oh, I don't know, WinXP? Say I'm a decent programmer, which I'm not, but just let it be for a minute. If I want to diddle with Windows to make it work right, I'm not allowed, because MSFT has said that I can't, because the software I'm running is really theirs, not mine. They've deigned to let me use it for a few, specific, and limited purposes. The fact that I've shelled out (*cough*) $500 for the software is irrelevant: I can only do with it what MSFT says I can do with it.
This is a flaming load of dingo's kidneys. I bought the damn thing, just like I would buy a bunch of bananas, and MSFT should't be allowed to tell me I can't reverse engineer anymore than the banana farmer should be allowed to tell me I can't ferment my bananas (thought he might be right about that one, it's hard to say). Same goes for music. If I've got the music in my control, who's to say I can't copy it? The record label? Who gives them the right to say what I can or can't do with my own things? Their legal department? Actually, yes. And that's what pisses me off.
I think you get the drift, and I think that's enough for now.
