Do You Own the Software You Buy?
Tecmo recently announced that it has sued some of its customers over posting modifications to its games on the internet. Perhaps the most parental paranoia inspiring fact is that they have modified the game DOA volleyball, which features incredibly buoyant, unrealistically gorgeous, women playing volleyball. Some industrious individuals who are interested in sexy pixels have figured out how to modify the textures that comprise these digital vixen's bikinis in order to render them non-existant. That's right, nude volleyball. Most of us probably don't think that kids seeing nudity is all that bad, especially when completely out of context as far as sex goes. I don't think that is all that bad either, especially when they can freely see people cutting other people's heads off with lightsabers on Sunday night prime-time TV.
The larger issue is, however that these people have modified software. Most X-Box users can't enjoy these modifications unless they have modified their X-Boxes to do so. These kits are available all over the internet, and have made the X-Box a great cheap linux workstation. The thing about software though that most people don't get is that even though you go to the store, pay money, get a box, and take it home, you don't own that software. The company that made it still owns it, even though you have installed it onto your computer. What you have purchased is the right to use the software in accordance to the terms and conditions that the company has stipulated. Usually by installing the software you have agreed to these conditions whether you have read them or not.
Most of the conditions in the software contract have to do with modifications and re-distribution of the software. It is these clauses that have inspired Tecmo to sue these people. There is a minor difference with this case that the Judge in the case wisely caught on to. The software, distributed on a DVD-ROM is not modifyable, meaning that no one can permanently modify the code on the disc. The modifications are made by putting the software on the X-Box's hard drive and calling it through the X-Box hardware modification, therefore the party in question did not violate their software agreement as far as modification goes, also, they are not distributing any of the company's propriatary code. The Judge also seemed to think that the disc, belonged to the purchaser. I find that to be extremely interesting.
If the disc belongs to the purchaser, but the code contained within the disc does not, it seems that there could be a potentially ambiguous understanding of the EULA, or end-user licensing agreement. Technically, no matter what happens I can not modify that company's code, however once it is off the disc and onto my computer, if I have never installed it and therefore not agreed to the EULA, I should be able to do whatever I want to it right? Wrong, courts up until this recent case have almost always sided on the side of the software company. The reason is obvious, how could anyone stop the reverse engineering of software if a company could install and steal that code. The truly interesting thing is that most software development companies engage in reverse engineering all the time and get away with it, just take a look at Microsoft's MSN search. It seems just like Google, doesn't it?
I think the larger issue here is what it means to buy something. No one ever has had the understanding that when they pay rent every month for their apartment, they are buying it. If someone were to freely allow the tennants to believe that they were buying the apartment by paying every month, the tennant's lawyers would have a field day, citing fraud. The competing apartment's lawyers would also go into frenzy, citing an unfair advantage due to fraud. The landlord of the fraudlent apartment building would be forced to pay damages to the tennants who thought they were buying property. The same should go for software. Most people think they are buying the software, that they own it. That is another reason why piracy is so difficult to stop. If I think that I own a piece of software, then there is nothing wrong with my copying it off the original disc and onto my own disc to give to my friend.
Bill Gates has even said that software patents are useless. There are too many ways to write code. The only way to protect software is to either make it impossible to copy off the disc, which is owned by the buyer and therefore unacceptable, or to make the software unusable once copied off the disc. Tecmo should have known better. You can't sue someone for modifying their own property. The buyers own the X-Box. There is no EULA saying that the X-Box is still property of Microsoft, therefore there is no case. It doesn't make sense to try to litigate to keep your software from falling into the wrong hands, either just admit that when someone buys software it is theirs to do what the want with, and bring litigation only if they start selling your intellectual property. People think its theirs anyway, and unless you can sue millions of people, you won't win. The RIAA is learning that the hard way, all of the money spent litigating and people are still downloading music illegally. They haven't stopped anything, they have just made it harder to track.