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Now that my Australian friends aren’t talking to me anymore (I can’t help it, the Simpsons are funny!) I’ll turn my attention back to the world of licenses (I’m a party guy)

I read on the New York Times’ Freakonomics Blog a pretty interesting and clever article about making anti-EULA clauses via email. The EULA, of course, is End User License Agreement most famously used by Microsoft in their “if you break this shrinkwrap, you accept the terms…” maneuvers. This article posits that maybe the customer can send their own EULA right back to the company whose software or service presented them with a EULA to begin with.

Something like:

READ CAREFULLY. By reading this email, you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies (”BOGUS AGREEMENTS”) that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.

I like it. This appeals to some mischievous side I have and to my non-legal brain has about as much merit as most presentations of EULAs. Still, I do think it misses the point a bit.

There was one passage in this article that caught my attention which leads me to why they are missing the point:

In thinking about this issue, it’s useful to separate the question of whether the seller’s or the buyer’s terms are reasonable. There are certainly plenty examples of obnoxious EULAs that have prohibited users from criticizing the seller’s product. But anti-EULAs could also be oppressive — for example, voiding even the reasonable restrictions of the Free Software Foundation’s GNU General Public License.

I wonder if our friends at Freakonomics have actually looked into what has happened to those who have broken the conditions of the GPL? If my memory serves me correctly, only the most recent case has someone actually been taken to court for doing so. Mostly people are sent letters asking them to correct their mistake. Am I wrong in this? I really don’t think so. If anything, the FSF probably could have been more aggressive in this regard.

But let’s not forget that the GPL and a EULA are very much the same thing: copy-right: the right to copy. All this is is a method that defines the rights a creator is granting for someone to have a copy. If you really don’t agree with the rights you are being granted – by all means don’t use it. You can make a fuss about it. You can tell your friends, or even tell the company why you aren’t using it. Yes, the shrinkwrap acceptance is backhanded but just because you don’t like that practice, the license the company has chosen isn’t somehow magically voided. If you want to use their software, you accept the terms. It doesn’t get much simpler.

The Freakonomics guys suggest that we can get around these pesky rights decisions through online payment systems offering anti-EULA protections when paying through their service (of course, that comes after accepting the EULA for their services). Is the idea to use the muscle of Paypal or Google Payments to come down on the evil EULA-doer? This cheapens the law…. or at least moves it into a market-driven corporate realm where the bigger the market-cap, the more correct they are. “I paid you through Google whose market cap is $211B, therefore your copyright is void.” That, to me, is scarier than a EULA.

The system that really needs to be in place is one of education. Lets inform companies that overly-protective rights are not consumer-friendly and are simply bad business. What better way to start that education than clicking on “I do not agree”?

I mentioned yesterday that I want to hear someone give a more focused talk on the issues of patents and IP in Universities. I am sure there are many such talks, but I want to hear one that is critical of IP in Universities.

A while ago I had a job at UNC which exposed me to the issue quite forcefully. Everything I saw and will relay derives from the Bayh-Dole Act of 1980. To summarize it, the Bayh-Dole Act stated that Universities could retain patents for research even if the funding came from Federal and State sources.

Let me summarize this way: The government can give money to a University in order to do research on something – say HIV medicines. If the University comes up with something they get to hold patent rights and are even allowed to build a for-profit venture around it. The taxpayer who funded the research gets nothing. If they have HIV and need the results from the research they must either pay or have their health insurance pay for it. Up until the Bayh-Dole Act all Federally funded research resulted in the findings being under Public Domain.

So why exactly did this happen? Because politicians have equated patents and copyright with innovation and ignored the fact that 99.999% of what we know comes from shared and collaborative knowledge… the “Commons”. What we know and how we improve upon that knowledge is innovation.

The commons is exactly what education should be about. At my time at UNC what I saw was not educators who wanted to educate, share, and be a part of the greater common. Rather, I saw people who saw an opportunity to create a company on their research and make millions and millions of dollars. Or so they thought. What no one is telling them is that most ventures don’t make money, they end up losing it. Further, to start and run a company requires a great deal of time, far more time than the average professor has. Still, what I cringed at most often was the fact that I couldn’t find anyone who actually wanted to teach! I am sure they are there, but again, I was working with folks who were doing their best to cash in on Bayh-Dole as well as working at a cash-strapped state University that is trying its best to become more of a research institution than a liberal arts haven.

In the end I came away with a gut feeling that Bayh-Dole was not in the best interest of the American people. Our Universities should be participating in the greater commons and pushing our society forward, especially when the money is coming from the taxpayer! Instead they have become businesses intent on finding the next great money-maker.

I went to go hear Bob Young talk today at UNC (mp3 already available!). I can’t say how many times I’ve heard Bob talk over the years but I wanted to go say hello since I haven’t seen him in quite a while.

I love hearing Bob talk – its always so relaxed and informal – and hilarious. Some things never change. So while I didn’t learn much new about Bob or his accomplishments, it was great fun to get taken on the nostalgia train back to the pre-IPO days of Red Hat when Bob took us all for an amazingly fun ride.

Bob did spend a bit of time talking about copyrights and patents (and the inherent evils of our politicians not understanding the benefits of public domain and the commons) and it made me wish to hear someone give a very focused talk on such things especially in relation to universities and the revocation of the law that made all university research public domain material. Perhaps I will expound on that soon.

Bob also gave ample praise to Paul Jones and ibiblio – I couldn’t agree more with the praise.

A while back Lawrence Lessig wrote on his blog that Microsoft had released a plug-in for Word that allowed the user to select a Creative Commons license to mark your document with. I was a bit incredulous when first seeing this post but today I was doing some thinking about the Creative Commons for a project at work when I remembered it. On my desk at work I have a basically unused Windows machine which has Word on it… gotta grab that CC plug-in…

Here it is, in all its glory. Its kinda neat actually and its good to see Microsoft take that incredibly small step towards our hippie-commie-left…. I mean “good side”.