What is Legal?

Many of my students and colleagues are confused over what they can and cannot do with software, DVD's, mp3's, etc. The legal issues involved are complex and what constitutes "fair use" is often not clear. At my university, we of course always abide by the license agreements which are usually better spelled out for organizations. However, it is harder, I believe, for the individual user to know "right from wrong." The following is excerpted from the August 25, 2009 issue of WinXP News #393...

There are lots of "tips" out there that tell you how to get around copy protection technologies on digital music and software. Just recently another popular Windows newsletter printed "an easy way to stretch the Windows 7 thirty day free trial period to 120 days." I was forwarded a question from a reader about this article, asking "Is this legal?" Few weeks go by that I don't get inquiries from readers, friends and family members who are confused about what they can and can't legally do in regard to the music they've purchased (either electronically or as a CD), the TV programs they've recorded with their DVR software, the DVD movies they've bought or downloaded through Unbox and similar services, etc.

Disclaimer: I am not a lawyer. As a former police officer and criminal justice instructor who taught Penal Code at the college level, I do perhaps know a bit more than the average person about criminal law. Nothing in this article is intended as nor should be construed as legal advice. All of the information is readily available on the web from various sources and I am merely aggregating it here and sharing some of my personal opinions, as a citizen, a writer and an IT professional who deals with intellectual property issues in my own life.

Many of us, regardless of our religious persuasions, still believe in the old admonition "thou shalt not steal." But theft used to be a much more clear-cut concept than it is today. In the law, traditional theft statutes that were written in a pre-computer era reflect that. My state's Penal Code defines theft as "unlawful appropriation of property with the intent to deprive the owner of the property." Going further into the statute, appropriation of property is considered unlawful if it is taken without the owner's effective consent.

The sharing of someone else's movies or songs or software clearly doesn't fit the elements of this offense, on a couple of levels. First, in most cases when a person downloads an illegal copy of a movie, song or program, the owner is not deprived of its use because the "thief" takes a copy. The original owner still retains the original or copy that he/she had. In addition, those who put copies of digital files they paid for on the 'Net to share are effectively giving their consent by doing so. Ah, but they didn't actually pay to purchase the song itself, but only to license it (a form of rental since you're paying to use the property but the former owner retains ownership). If you rent a lawnmower, is it illegal for you to let someone else use it to mow your lawn instead of doing it yourself? That's where we get into contract law.

Generally, when you rent a physical thing, you sign a contract called a rental agreement. The contract terms specify any limitations on how you can use it while it's in your custody and under your control. When you "buy" a song, movie or software program, there is usually also a contract, called a license agreement or EULA. The terms of the contract state that you "sign" it by clicking a checkbox or simply by using the product. One big difference is that with a physical rental agreement, you almost always get to read it before you pay your money. With digital license agreements, that's often not the case.

Let's say you rent that lawnmower, sign the contract saying no one but you can use it, and then you go home and get the kid next door to mow the lawn for you. Are you guilty of a crime? Probably not. Traditionally, breach of a contract between two parties was treated as a civil matter, not a criminal one. There's a big difference (or used to be) between civil and criminal law, the biggest being that the penalty for losing a civil case is usually a judgment, ordering you to pay compensation to the other party. You don't (didn't) go to jail for breaching a contract.

The odd thing about intellectual property law is that matters that were always civil in the past have been made criminal. Now you can indeed go to prison for a copyright violation, which up until the 1990s was a civil matter that was settled in a civil lawsuit, not prosecuted in criminal court. We've all seen the FBI warning at the beginning of every movie we watch: "The unauthorized reproduction or distribution of this copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by up to five years in federal prison and a fine of $250,000." Guess who the groups were behind this initiative? That would be the MPAA (Motion Picture Association of America), RIAA (Recording Industry Association of America) and ESA (Entertainment Software Association):

So if you rip a song from the CD you just bought and send a copy to your best friend, will the police be knocking at your door? Probably not. These are federal laws, and the local police generally don't enforce those (although they can and do call in the federal authorities if they run across a major violation). Remember the old saying, "Don't make a federal case out of it?" Well, they did.

And just exactly why did they do that, aside from the lobbying efforts of the organizations mentioned above? Well, a lot of the pressure actually comes from the "international community." The Digital Millennium Copyright Act , the federal law enacted under President Clinton in 1998, criminalizes not just copyright infringement, but use of any technology to circumvent copy protection technology even if you don't infringe on the copyright. That means if your CD is copy protected, you can't use any software to get around that protection even to make a backup copy for yourself. The DMCA didn't just appear out of thin air. It was passed to implement two treaties signed in 1996 by President Clinton that were put forth by the World Intellectual Property Organization.

"Intellectual property" is the catch-all term applied to intangible creative assets such as music, art, literature, and so forth. Copyright is the set of legal rights that the creator holds in that property (and which the creator can sell or give away). In some cases, the creator gives away copyright before creating the property, as in the case where an employee signs a contract granting the employer ownership of all of the intellectual property (and even ideas for same) that the employee creates in the course of his/her employment.

Some states have intellectual property laws of their own. Because the "theft" of electronic property so often doesn't fit the existing theft statutes, they create new offenses to cover the unlawful taking of electronic property. For example, my state has offenses called "Theft of or tampering with multi-channel video or information services" and "theft of telecommunication service" that make it a crime to access cable TV, Internet services, telephone services and similar services without the authorization of the provider.

But remember that the criminal and civil systems in the U.S. are completely separate. Even if you aren't prosecuted in criminal court, you can still be sued in civil court. The RIAA has made copyright infringement lawsuits famous, and many people have settled out of court, paying the organization thousands of dollars, to avoid the expenses (both monetary and emotional) of going through a trial.

So, back to the original questions: Is it legal to extend the evaluation period for a piece of software? The answer is in the EULA. That's the contract that governs what you have the right to do with the software. Does it specify that you may use the software for only the limited period of time or is it the same standard EULA that comes with the full purchased version? Does it prohibit reinstalling the software when the trial period is over to start another trial period? Does extending the trial period involve circumventing copyright protection (and thus constitute a violation of the DMCA)? These are the questions you need to ask yourself before you follow the instructions in one of those "handy tips." Since Windows 7 hasn't yet been released, its final EULA isn't available yet. Microsoft is careful to say that license terms are subject to change with each upcoming release.