Ed Foster on Kafka-esque EULAs

Settling With Secret Terms

“You can contact any of these manufacturers and request copies of the EULA prior to purchase,” wrote one reader. “Even if you don’t have a computer, you can phone, or write to obtain a copy of a EULA. Not being able to read it before purchase was her (the plaintiff’s) own fault, for not thinking logically.”

Actually, the reader is wrong about that, particularly concerning Microsoft’s practices and philosophy before this lawsuit was filed. Back when UCITA was being drafted, Microsoft representatives and their cohorts from the Business Software Alliance were particularly adamant that software publishers should not be required to present license terms before purchase, even in online transactions where it’s simple to do. And, it so happens, in 2002 I went through the exercise of calling Microsoft — as a prospective customer, not a journalist — to ask that they send me the EULA for one of its products that was not to be found on their website. They ultimately refused to email, mail, or fax it to me, saying it was their policy that customers could only see the EULA after purchasing the product.

At the same time back in 2002, I also checked the websites of other major software publishers to see how many of them made their EULAs available. With a single exception, none put their license agreements in a place where a visitor to their website would be likely to find it.

A New DRM Peril

Hackers Tune In to Windows Media Player

Hackers are using the newest DRM technology in Microsoft’s Windows Media Player to install spyware, adware, dialers and computer viruses on unsuspecting PC users.

Security researchers have detected the appearance of two new Trojans, Trj/WmvDownloader.A and Trj/WmvDownloader.B, in video files circulating on P2P (peer-to-peer) networks.

According to Panda Software, both Trojans take advantage of the new Windows anti-piracy technology to trick users into downloading spyware and adware applications.

“When a user tries to play a protected Windows media file, this technology demands a valid license. If the license is not stored on the computer, the application will look for it on the Internet, so that the user can acquire it directly or buy it,” Panda Software explained.

An unsuspecting user attempting to download the DRM (digital rights management) license will instead be redirected to a Web site that loads a large quantity of adware, spyware, modem dialers and other viruses, the company said in an advisory.

Ben Edelman’s report; Slashdot – Crackers Tune In to Windows Media Player

Contracts, Attribution and Ownership

A Byzantine tale of the writing credit for The Avaitor, the recent screen biog of Howard Hughes: John Logan’s Solo Show:

Mr. Logan’s handlers at the Creative Artists Agency also enhanced his status before he began writing “The Aviator” by building into his deal an unusual provision guaranteeing him sole screenplay credit, Charles Evans Jr., one of the film’s producers, said in an interview. The guarantee blocked the producers, who included the normally hands-on filmmaker Michael Mann, and even Mr. Scorsese from hiring writers to revise Mr. Logan’s work or from professing any part in the screenplay’s authorship, whatever they may have contributed.

Asked whether he had such protection, Mr. Logan smiled. “I don’t know,” he said.

Mr. Evans, who is one of the film’s four credited producers and spent 12 years on the project, said, “Of course, he knew.” […]

[…] [N]either the Higham nor Broeske-Brown books appears in the “Aviator” credits, and Mr. Logan emphasizes his originality, saying he used the public record or multiple sources for everything, including the clouds.

“The sources that I drew from were vast,” he said when asked if he had relied on those optioned books.

[…] Mr. Evans – who had handed seven years’ worth of research and connections to Mr. Logan and then spent a year and $200,000 suing Mr. Mann for joining the writer at another studio without him – is barred from talking about his dispute under a settlement that ended his court case.

But he isn’t shy about expressing his view of Hollywood’s credits scramble. “Morality has nothing to do with what finally shows up on the screen,” he said.

Mr. Logan points to “The Aviator,” along with his “RKO 281” script, as his proudest film achievements. They “are really the two best things I’ve written for movies,” he said.

“I think they’re completely mine.”

The Tortuous Paths Of A Music Industry Lawsuit

Judge Orders Release of Rosa Parks’s Mental Health Records in Fight Over Song

The judge, George C. Steeh of Federal District Court, ordered the release of some of Ms. Parks’s records in response to a request by The Detroit Free Press in connection with a legal fight between Ms. Parks’s representatives and record companies and music distributors. Ms. Parks, 91, suffers from dementia, her doctor has said in court documents.

[…] A lawyer for The Free Press argued that the documents, which had been submitted to the court under a protective order, might show whether Ms. Parks had approved the suits filed on her behalf against members of the music industry in connection with a song that used her name in its title.

Family members have questioned whether Ms. Parks’s caretakers and a lawyer who filed a suit on her behalf in 1999 against OutKast, a hip-hop group, and BMG, the record company, acted with her approval.

[…] “There’s been a lot that has come up in recent weeks about whether the lawsuit even reflects her will,” Mr. Fink said. “Her nieces have been quoted in newspaper stories saying that Auntie Rosa would not have wanted this lawsuit.”

Reshaping the Rules of Journalism

Free Speech, or Secrets From Apple?

Against the backdrop of the Macworld Exposition in San Francisco this week, a series of legal actions filed by Apple Computer over the last month highlights the difficulties of defining who is a journalist in the age of the Web log.

As part of a lawsuit filed by Apple in Santa Clara County Superior Court on Dec. 13, the company obtained a court order allowing it to issue subpoenas to AppleInsider.com, PowerPage.org and Thinksecret.com. The three Web sites published or linked to information on what they said was a future Apple audio device that was code-named “Asteroid.” The subpoenas are aimed at getting the operators of those sites to disclose the sources of the information that was reportedly leaked.

An attorney representing AppleInsider and PowerPage asserted that bloggers ought to be extended the same protections as mainstream journalists, who have traditionally been given some latitude by the courts in protecting the identities of confidential sources.

Music Biz Freakshow Followup

While this earlier NYTimes article (Who Wants To Be A Simpson) was distressing, this followup is something even more distasteful — and yet they keep selling records: Ashlee Simpson’s career comes courtesy of Daddy dearest [pdf]

If an innate tenet of parenthood is to protect one’s offspring, why does Joe Simpson insist on repeatedly tossing his youngest child to the wolves?

That’s Joe Simpson, father of the alarmingly untalented Ashlee Simpson. Ever since her lip-synching debacle last year on ”Saturday Night Live,” the pop star wannabe has been a perpetual punch line, and the disparaging words grew even more ferocious after her screechy, off-key performance at the recent Orange Bowl halftime show. By the end of her song, ”La La,” a spectacular chorus of boos rained from what sounded like a good portion of the 70,000 people in attendance.

Before the camera quickly cut away, Ashlee looked so stunned it was as if someone had backhanded her across the face. Now, Ashlee will begin her first headlining tour next month, and it’ll be tough not to feel some sympathy for her since it’s her greedy father who, in his capacity as her manager, keeps offering her up for public ridicule.

[…] Joe Simpson’s smug vision was validated when Ashlee’s album entered Billboard’s 200 album chart at No. 1; it has since sold more than 2.5 million copies. (According to Nielsen Soundscan, which tracks record sales, ”Autobiography” was 2004’s ninth best-selling album.) Of course, album sales are one thing, singing ability quite another. […]

[…] Behind all this is Joe Simpson, a former Baptist minister who gave up his calling to pimp out his daughters as pop stars. […]

[…] Then again what should anyone expect from a father who isn’t beyond promoting — and commenting in unnerving detail — about his daughter Jessica’s sexiness. In a GQ interview last month, Joe said, ”Jessica never tries to be sexy. She just is sexy. If you put her in a T-shirt or you put her in a bustier, she’s sexy in both. She’s got double D’s! You can’t cover those suckers up!”

Is your flesh crawling yet? And that’s not the first time he’s mentioned Jessica’s ample cleavage in terms way too familiar for comfort.

IBM Makes A Patent Move

Continuing their support for open source development: IBM to Give Away 500 Patents [pdf]

U.S. patent leader IBM said late on Monday it plans to donate 500 patents for free use by software developers, marking a major shift of intellectual property strategy for the world’s top computer maker and a challenge to the high-tech industry.

[…] The IBM move is meant to encourage other patent holders to donate their own intellectual property in order to form what the company refers to as a “patent commons,” a modern twist on shared public lands set aside under traditional laws.

“We think the way it’s going to evolve is that other companies will want to pledge,” Stallings said. “I think they will come together and decide how to manage the commons,” he said, stressing that IBM was hoping to jump-start but not control any resulting organization to manage this process.

CNet News – IBM offers 500 patents for open-source use; Slashdot – IBM Opens Their Patent Portfolio to Open Source; Washington Post – IBM to Help Open-Source Developers [pdf]; NYTimes – I.B.M. to Give Free Access to 500 Patents