Poorly written terms of service agreements #2

In the Internet-enabled era, computer users can update the drivers for their peripherals with very little trouble. Manufacturers commonly provide copies of drivers on their websites, free of charge. And why wouldn't they? Most manufacturers of peripherals are in a competitive market, and want to give their users no excuse for abandoning their products in favor of that of a competitor.

Case in point: I recently upgraded to Mac OS 10.4 at home. To coexist happily with 10.4, my Wacom Graphire 3 pen tablet required new driver software.

I went to Wacom's website and located my free driver upgrade. The site did not require that I represent that I was a current Wacom user in any way.

Before the upgrade would finish installing, a Terms of Service Agreement (ToS) with some interesting features popped up. Wacom's ToS forbids "unauthorized copying" and "unauthorized reproduction, distribution, disclosure, use or publication." Some of this might seem a bit silly for a free driver upgrade. However, according to the Ninth Circuit, a copyright holder has the right to stop publication of its copyrighted material and to enjoin others from publishing copies of that material, even if that copyright holder previously gave away over nine million copies of the copyrighted material for free.

So, score one for Wacom, for being up on the esoterica of copyright law, if Worldwide Church of God, 227 F.3d 1110 (9th Cir. 2000), allowing Worldwide to stop a splinter group from publishing the writings of Worldwide's founder when the splinter group ran out of copies, is what inspired that bit of contract language. Worldwide is an interesting companion to the Scientology cases [see the "Internet Cases" subsection], because no Scientology cases that I'm aware of deal with material that was once freely available.

The rest of the ToS, though, does not give me such warm fuzzies.

The ToS that appears when I am installing the updated driver doesn't seem to restrict the use of the driver itself.

The ToS talk about an "enclosed product includ[ing] computer programs embedded in firmware and accompanying diskette or CD-ROM . . . ." Even a generous reading of this ToS doesn't place the driver installation package within an "enclosed product"; this ToS must be the exact ToS that comes with the physical product packaging.

Here are the relevant portions of the ToS:

  1. Grant of License. The enclosed product includes computer programs embedded in firmware and accompanying diskette or CD-ROM (the "Software"). The Software is licensed, not sold, to you for use only with Wacom products upon the terms of this license, and Wacom reserves any rights not expressly granted to you. Wacom grants to you a non-exclusive right to use this copy of the Software in conjunction with a Wacom product at a single location.
  2. Ownership of Software. Although you may own the product in which the Software is originally recorded, Wacom retains ownership of the Software itself. . . . The Software is protected by copyright and other federal and state laws. You agree to use your reasonable best efforts to protect the Software from unauthorized reproduction, distribution, disclosure, use, or publication.
  3. Copy Restrictions. Unauthorized copying of the Software is expressly forbidden.

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