The great thing about law school (when taught properly) is that it fosters discussion. Yesterday in my Advanced Copyright’s class we were discussing Reverse Engineering. As a result of the discussion, I finally figured out how to articulate my problem with End User License Agreements (EULAs.) As some of you know, it was my own encounter with reverse engineering and EULAs which sparked my interest in law school in the first place.

The problem with EULAs, other than that everyone agrees to them without reading them, is that they often preempt Federal Copyright Law (in my opinion.)

The constitution states “Congress shall have Power . . . To Promote the Progress of Science and useful Arts, by securing for limited Times, to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries.”

When Congress codified copyright law with the Copyright Act of 1909, they granted copyright protection beginning at the moment of publication. The key, in my opinion, is that limited time monopolies are granted in exchange for publication. Therefore the exclusive rights federal copyright protection guarantees are a quid pro quo for sharing the work with the public. Furthermore, the list of exclusive rights is not exhaustive but rather specific and limited. EULAs violate these principles when they expressly withhold fair use rights or other rights not exclusively granted to the copyright holder by the Copyright Act. Put simply they are not their rights to give!

For example Apple’s Itunes EULA states “you may not copy, decompile, reverse engineer, disassemble, modify, or create derivative works of the Apple Software or any part thereof.” (A similar clause can be found in almost every software EULA.) However most courts have held that reverse engineering is a fair use as a matter of law. See Sega Enterprises, Ltd. v. Accolade, Inc., 977 F.2d 1510, 1529 (9th Cir. 1993). Therefore, Apple is expressly limiting a fair use in their EULA and thereby taking away a right the courts have held limits a copyright holders exclusive rights.

While parties are generally free to contract to whatever they wish, the Supreme Court has invalidated contracts it held to be contrary to federal law. Lear, Inc. v. Adkins 395 U.S. 653 (1969). To that end I believe provisions in EULAs similar to Apple’s which limit rights not exclusively granted to copyright holders should not be enforced as a matter of federal law preemption.

For more info see:
I. Trotter Hardy, Contracts, Copyright and Preemption in a Digital World, 1 RICH. J.L. & TECH. 2 (1995

Daniel Laster, “The Secret Is Out: Patent Law Preempts Mass Market License Terms Barring Reverse Engineering for Interoperability Purposes” (February 17, 2006). bepress Legal Series. Working Paper 975.

P.S. A big thank you to Ron Coleman for linking to my blog. This post is a hurried attempt to get more content up in hopes that the increased traffic sparks more discussion.