Ever wondered what those dire-sounding software license agreements mean? Check out Brady Johnson’s article on just what you aren’t agreeing to. In the more agreeable department, we look at two PowerBook books, including the essential PowerBook Companion, glance briefly at the latest in viruses, peek through a keyhole at the upcoming FoxPro for Macintosh, and reveal the shameful truth about the low-end model of the Quadra 610 (well, OK, it’s not that bad).
Recently, we’ve received several complaints about insensitive comments in TidBITS. Unfortunately, it seems that every time we stray from the facts of an article, or point out in a non-serious way what we feel is an odd situation, someone writes to complain. These letters disturb us because, in almost every case, it’s an issue with which we are completely cognizant, be it the plight of meat packers or the concern non-Caucasians have with faux-flesh tone beige gloves. We always respond to these complaints because we dislike being misconstrued, whether or not it’s our fault for ambiguous wording. For the record then, if you’re offended by something you read, remember that it’s probably not serious and think for a moment before you send email. If we wish to rag on something, it will be obvious.
Some might say that we should avoid touchy subjects, but we won’t self-censor TidBITS in that way. TidBITS is not a typical news offering, with every phrase pre-sanitized for your convenience. We’ve built a reputation for writing informally and will not stoop to antiseptic prose. There are plenty of places to find bone-dry writing, and we’ve always found that such writing makes excellent tinder. We like to think that Macintosh users have and prefer a bit more personality than that.
Fred Showker <[email protected]> writes:
Color It has been in my tool box for some time, and I can report from personal experience that it is a smooth operator. I have used it in many projects for which Photoshop was too cumbersome. My children’s LC II (4/80) system would not even launch Photoshop 2.0 until I downgraded to System 6.0.8, and even then it would only run on a skeleton set of plug-ins and small 16-bit color images. Color It, on the other hand, opens and manipulates larger files handsomely on the same machine.
Color It’s airbrush and paint brush tools work more fluidly and seem to run faster than Photoshop’s on non-muscle Macs, as do its virtual memory functions. Color It is also much easier to use in terms of palette setups like blends and gradations – they’re much more intuitive and responsive. Magic wand, multiple-selection tools, and selection feathering are all included for photo retouchers. Color It also requires little drive space. The full package, including tutorial files, occupies just over one megabyte.
Keep in mind folks, that I’m talking about the previous version of Color It – not the upgrade! I’m looking forward to tablet support, expanded scanner support and the other features adorning Color It 2.3. Even though it’s considered un-hip to chat about anything other than Photoshop, for "the rest of us" (those of us who don’t have muscle Macs) Color It will be a welcome addition.
[Also note that a reader confirmed that the special offer on Color It that we reported on in TidBITS #199 includes the manual on disk, not in printed form. -Adam]
Technical Support Coordinator, BAKA Computers
Apple shamefacedly admitted last week that its introductory materials and data sheets for the Quadra 610 incorrectly stated that all Quadra 610s have a floating point unit (FPU). In fact, Apple changed the configuration of the Quadra 610 8/160 at the last minute; it includes a 68LC040 processor instead of a full 68040, and therefore lacks an FPU.
Both other Quadra 610 configurations (the 8/230 and 8/230 CD) provide the FPU within the 68040 processor, as do all configurations of the Quadra 660AV. All configurations of Quadra 610 include built-in Ethernet.
Although Apple doesn’t offer an FPU upgrade for the Quadra 610, third parties have sold full 20 MHz 68040 chips for the purpose of upgrading the Centris 610. It should similarly be possible to obtain a 25 MHz Motorola 68040 chip to replace the 68LC040 in the Quadra 610, but users should understand that this isn’t an Apple-approved or Apple-endorsed approach [and if I remember correctly, it’s expensive too -Adam]. Users who require the FPU capability should purchase a Quadra 610 with a full 68040 or a higher-end Quadra.
Pythaeus writes that long after buying Fox Software, Microsoft may finally release FoxPro for Macintosh, probably at Macworld Expo in San Francisco for $495. Here then are some details about cross-platform development work with FoxPro, which is rumored to be the fastest Mac database when it ships.
FoxPro/Mac is cross-platform, so applications that you build can be somewhat easily transported to DOS and Windows, and perhaps next summer, to Unix too. Once you transport and adjust applications for each platform, the code for both platforms exists in the same file. In other words, you can have a Windows, a DOS, and a Mac client all using the same program and data files on your server.
Current FoxBASE+/Mac users will be far behind if they haven’t already started using FoxPro for Windows, since commands for dealing with screens, menus, and so on have all changed dramatically. Microsoft includes an application that attempts to update your code from FoxBASE+/Mac, and it’s fairly successful. However, you lose the benefits of FoxPro/Mac’s excellent screen and menu generation facilities.
FoxPro’s methods for handling platform differences are both useful and disturbing, but understandable considering that Microsoft is the developer. For example, pathnames can either be Mac style, "HD:Foxpro:My Program:Program.prg" or DOS style, "HD:\Foxpro\MyProgrm\Program.prg". However, all of FoxPro’s functions return only DOS-style pathnames. The trick here is to avoid backslashes in your Mac filenames.
For developers who must ship their programs the day that Microsoft releases FoxPro/Mac, consider moving your code to FoxPro for Windows today to simplify porting back to the Mac and to possibly increase market share. Be careful of font differences, and note that FoxPro/Mac supports basic Apple event scripting (using the doScript event to call FoxPro functions), but not DDE, Microsoft’s proprietary method of data sharing between applications in Windows.
The chill is returning to the air as autumn moves on (well, at least in the Northern Hemisphere), and it appears that some Macs have caught two new bugs, viruses actually. Mark Anbinder whipped up these brief descriptions.
CODE-1 — A virus called CODE-1 has been reported at several sites. Its only explicit action, other than spreading, is to change the name of the startup hard drive to "Trent Saburo" if the Macintosh is restarted on 31-Oct of any year. Because it changes several internal code pointers, this virus may lead to system crashes, unusual application behavior, and other problems. All current antiviral utilities should be updated to handle this virus.
MBDF-B — MBDF-B is a new variant of the MBDF-A virus, which was first discovered in February 1992. It appears to be a slightly-modified MBDF-A, changed and released by a person or persons unknown. Like the original, this virus does not intentionally cause damage, but may spread quickly and widely, and can cause problems. Some existing Mac antiviral utilities detect this virus, but all utilities should be updated to properly recognize and handle it.
Utility Updates — Macintosh antiviral developers have released the following antiviral utility versions to handle the CODE-1 and MBDF-B viruses:
- Central Point Anti-Virus 3.0a
- Disinfectant 3.3
- Rival CODE-1 vaccine
- SAM 3.5.9 and associated Virus Definitions file
- Virex 4.1
- Virus Detective 5.0.10
- Gatekeeper 1.2.9
You can find Disinfectant online in all the standard places, including <sumex-aim.stanford.edu> as:
For further information, contact the developer of the utility you use. Please obtain an update immediately and scan for infections. If you use both a scanning utility and a "suspicious activity monitor," be sure to update both utilities. If you do not use antiviral software, we highly recommend that you start.
We’re all used to purchasing updates to software packages since the programmers add useful new features and fix bugs, right? The more I learn about the publishing industry, the more I realize how closely it resembles the software industry. Consider the second edition of a book – the author covers the subject more completely, makes corrections, and eliminates facts that have passed the way of the Mac Plus and the carrier pigeon. The only difference is that because books are usually inexpensive, publishers seldom offer discounts to those who purchased the first edition.
The second edition of Rich Wolfson’s (now co-authored by Sharon Zardetto Aker) PowerBook Companion (Addison-Wesley, ISBN 0-201-62621-7) is now available, and in an unusual coincidence, there’s even a trick for buying it cheap. I first reviewed Rich’s book in TidBITS #152, giving it the highest of marks, if I remember correctly. I’ve read the second edition, and it satisfies the requirements of an upgrade, offering new features and bug fixes.
Whereas the first edition covered only the PowerBook 100, 140, and 170, the second edition covers everything up to the 180c, including the Duo 210 and 230 (but not the just released 250 and 270c). The sections on peripherals and software swelled to discuss the many products that have reached the market since the first edition, and in general the book feels fuller. The first edition filled the need of the new PowerBook market starved for solid information; the second edition comfortably covers the now-mature PowerBook world.
One of the high points of the book is its charts. It has charts outlining the features of every PowerBook model and a chart detailing the power states of different components when the PowerBook is awake, sleeping, or shut down (with a separate chart for the 100, which is often different). Perhaps the most noticeable addition to the book is a disk containing oodles of freeware and shareware PowerBook utilities to monitor your battery, fatten your cursors, toggle your AppleTalk, and so on. There’s nothing here you couldn’t find online, but for those without solid network access, it’s a major bonus.
The personal tips and quirks remain from the first edition as well. Rich and Sharon doctored several About This Macintosh dialogs used in screenshots to identify the PowerBook in question as an as-yet-nonexistent 190 running System 8.1. And then there are the X-rays of Rich and Sharon’s PowerBooks (to prove that putting them through the X-ray machine at the airport is OK), along with an X-ray of Sharon’s metal-reinforced spine. Cute, guys. They also recommend that if you don’t have a protective case for your battery (since a paper clip could theoretically short out a loose battery and cause a fire) you can call Apple for a case, or you can use a sock. It leaves me wondering if their editor didn’t at some time tell them to put a sock in it.
In any event, I’m pleased that Rich and Sharon didn’t clam up after the first edition, since the second edition improves on an already-useful first edition in numerous ways. If you own a PowerBook, sell PowerBooks, or support PowerBooks, you should own a copy of this book. The cover price is a standard $24.95, but for the month of November, you can purchase it from Mac’s Place for $10 (plus $3 shipping). That’s cheap, but if you can’t manage to order in November, I’m sure your friendly local bookstore either has it or can order it.
Mac’s Place — 800/897-0009 — [email protected]userve.com
PowerBook: The Digital Nomad’s Guide — As much as I swear by Rich and Sharon’s PowerBook Companion, I also thoroughly enjoyed reading PowerBook: The Digital Nomad’s Guide (Random House Electronic Publishing, ISBN 0-679-74588-2, $24, also available from APS), by Andy Gore and Mitch Ratcliffe, news editors from MacWEEK. Mitch and Andy combined for an extremely readable style that reflects the authors behind the words far more than do most books. The book comes with a disk containing various freeware and shareware applications along with the commercial programs AgentDA (demo), QuicKeys for Nomads, Spiral (demo), Dynodex, and Synchro.
My major quibble with the book is that Mitch and Andy have three terms for different types of PowerBook users – the Intentional Tourist, the Mobile Commuter, and the Road Warrior – each of which uses a PowerBook in different ways. This distinction is not a problem, but using the distinction as a way of organizing the book’s layout and calling out certain issues in sidebars confuses things. PowerBook: The Digital Nomad’s Guide has more information than the PowerBook Companion about using applications on PowerBooks and applications that PowerBook users would be likely to want to use. It also covers communicating via the Internet, which is always nice to see. Overall, it’s a good book and a more engaging read than most Macintosh books, due in large part to both the authors’ stories about using PowerBooks in airports around the world and the brief introduction by Douglas Adams. Perhaps even more interesting is that there is an electronic edition of the book that was published simultaneously. I haven’t seen it, but I wonder how it has done in comparison to the paper version.
[Yes, Brady is a lawyer, and doesn’t just play one on the nets. Note that the discussion below applies in the U.S. and may vary in your part of the world. -Adam]
A couple of months ago, Adam asked me to write an article about software licensing, and asked Internet folks to let me know about strange, weird, or merely incomprehensible software licenses they had seen. Most of the responses noted the inconsistent and sometimes bizarre restrictions on transferring software or duplicating it even for personal use. It is interesting that although these are arguably the most important features of any licensing arrangement, they are the least intelligibly explained by the most commonly seen licenses. In this article, I focus on answering the one question that I have distilled from all the reader input: Can they really do that? ("That" being whatever the clause in question addresses).
The bottom line is that while federal copyright and other protections certainly apply to mass marketed commercial software, there is no legal authority upholding many of the additional restrictions on transfer and copying often found in software licensing agreements. Indeed, it is distinctly unclear at present whether any license arrangement that does not openly and specifically form part of the initial purchase would be upheld in court. Interestingly, both Louisiana and Illinois have enacted statutes attempting to extend traditional contract law to apply to these so-called "shrink wrap licenses." Both laws were struck down by the courts almost immediately and at present, there are no statutes dealing with this issue.
To understand this issue it is important to understand some basic law in the areas of "intellectual property" and contract. Let’s take a look at the basic rules in these two areas.
Software Protection 101 — Software can be protected in five basic ways. Three of these take advantage of specific, long-standing methods of protecting the creations of one’s mind, aka intellectual property. These are patent, copyright, and trade secret protection. The general law in these areas is well established, although there remain many questions as to how the laws apply to software. The fourth method is copy protection. This approach was popular for a short time, but it rapidly became obvious that any bright grade school student could beat any copy protection scheme before study period ended. The rise of the hard drive also made copy protection impractical. Today, few broadly marketed commercial products use this approach, at least in the U.S.
The fifth approach to software protection is the "contract" or "license" approach, which tries to apply traditional legal notions of contract to software purchases. Mass-marketed products, such as Microsoft Word and Lotus 1-2-3, come with a "Licensing Agreement" threatening dire consequences to any who violate whatever terms may be included in the small print. These licenses are invariably printed in an obscure dialect known to linguists as "lawbabble" or "legalese." Some of these "agreements" contain provisions that are annoying, but quite enforceable. Many of these licenses contain provisions that range from the impractical and impossible to the just plain stupid. There is substantial debate in the legal community as to whether all of these provisions are enforceable.
Another approach to software protection uses market forces rather than law. The so-called "extralegal" approach sees marketers offering additional incentives such as free upgrades, technical support, rebates and the like to registered users while presumably leaving the pirates out in the cold. The problem with using this approach alone is that it is as easy for an unscrupulous end user to pirate copies of updates and upgrades as it is to obtain the original application. Technical support is freely available on a variety of commercial bulletin boards and from user groups – the thief need not rely on the publisher’s own technical support. The extralegal approach is commonly used in conjunction with the contract method.
Contracts 101 — A contract is nothing more than an agreement between two or more parties, in exchange for something of value, called "consideration." The agreement must consist of an offer that is communicated to another, and a knowing and voluntary acceptance. Consideration can be something tangible, such as money, or something intangible such as a percentage interest in a money market fund. A promise can even be considered consideration. So a valid contract is formed where a promise is exchanged for another promise. In fact, this is probably the most common type of contract.
A license is a type of contract where one person "rents" a certain right or item to another. The most common types of licenses are bus tickets (well, most buses don’t actually give tickets, but you get the idea) and theater tickets. The only thing you buy is the right to ride the bus, or to see the show. Your rights end when the bus reaches its destination or when the show is over.
If A License Is A Contract, When Did I Sign? — What the software companies are trying to pass into law by papering all of us with these "licenses" is the idea that when you buy software, you aren’t actually buying software at all – all you’re buying is the disk and certain limited rights to use the software magnetically encoded on it. Considering the effort, time, and expense that goes into good software coding it is no surprise that vendors want to guard their product from piracy. This is particularly easy to see with a product so easily duplicated as a floppy (by contrast, try making multiple copies of a paperback for your friends!). The very fact that it is so easy to copy software makes traditional protections methods like copyright inadequate to stop the problem.
So the software industry has increasingly turned to the idea of licensing the use of their product to individual users, while retaining ownership of the actual product. This approach is not new. In the olden days – a few years back – most software was sold in small quantities. Contracting with each purchaser made sense since the numbers were smaller. In fact, this approach is still used today with products that are sold to small group of buyers, such as customized database products designed for mainframes.
But problems arise in trying to apply the contract approach to the mass market. Let’s say you buy a software package. It comes in a flashy box with a lot of writing on the back about the neat stuff that the software will do. You fork over some cash for it and rush home to try it out. You open the box, and see the floppy disks in a paper sack with the words "Important Licensing Information" written on it. Totally ignoring this "important" information, you tear into the sack and install the software (how many of you do this? show of hands please?). Let’s also say that the "Important Licensing Information" started out something like: "This is a legal Agreement between the buyer and the VaporWare Company. If you do not agree with the provisions of this Agreement then you must immediately return your VaporWare product for a full refund."
Well? Are you stuck with a contract even though you didn’t read it? Is the entire legal staff of VaporWare trying to pull a fast one on you by sneaking this into the box so you don’t know about it when you purchase the product? Hmm. Let’s take another look at the contract rules we started out with. When you paid for the product, you knew nothing about this "agreement" inside. In fact, you couldn’t have learned about it without opening the box, which would mean paying for it. (Catch 22?) When you got home and opened the box, you found this new "agreement" in which the good people at VaporWare tell you that you are now party to a contract you knew nothing about when you bought the software.
Under traditional contract analysis, this type of agreement would not be enforceable since it was unknown at the time of purchase and thus, could not have been negotiated or agreed to. In other words (lawyers always have other words), the offer to buy the product did not include the terms of this license, and you did not accept the offer and pay your hard-earned money with the understanding that this license would apply. Simply opening the package does not mean that you have entered into a second contract because not only have you not negotiated anything, but no new "value" has been exchanged. That is, VaporWare has given you nothing extra in exchange for your supposed agreement to the second contract. Ironically, this analysis is even stronger if you didn’t read the agreement, since you certainly can’t be forced to agree to something you know nothing about. There is no legal duty to read everything in a package.
Even if you read every word of the license agreement, and mentally assent to it before opening the package, the question is not resolved. With respect to consumer sales most courts follow a line of cases holding that one-sided contracts created in conditions of clearly unequal bargaining power are not recognized to the extent that they impose unreasonable or "unconscionable" conditions on the consumer. There are numerous additional difficulties presented by the current approach to these license agreements under traditional contract law, as well. Fortunately for you, dear reader, Adam won’t let me go into all the gory details (it would only be a few dozen pages!)
Well now, wait a minute. Does this mean that you can ignore all that licensing stuff and make all the copies you want, hand them out to your friends, or even open up shop and start marketing copies of VaporWorks – the leading VaporWare product? Nope. Federal copyright law still applies, and prevents you from legally "publishing" (e.g., copying and distributing) any copies of the software without authorization from the copyright owner. In fact, copyright law makes it a criminal offense to do this, punishable by fines and prison time.
At least one software publisher has decided against using the licensing approach in one of its products. Purchasers of Prince of Persia, a Broderbund product, may notice that the package contains no license. Instead, the manual contains a brief statement that the software is protected by federal copyright law and that "copying the software for any reason other than to make a backup is a violation of law. Individuals who make unauthorized copies of software may be subject to civil and criminal penalties." Despite all of the fancy wording and restrictive language of other publishers’ licenses, under the current state of the law, I believe that Broderbund’s simple, two-line statement most likely accurately reflects all of the legal protections actually available.
The Bottom Line — Although a couple of cases have addressed shrink wrap license issues, none has decided the issues of greatest concern to us: whether the restrictions on archiving, personal backups, use on more than one hard drive, etc. are valid or just so much smoke. Although several states are actively considering shrink wrap license legislation, only two have passed laws on the subject and in both cases, they were promptly struck down by the courts. Neither of those cases addressed these issues either – the statutes were stricken on constitutional and other grounds not related to their substantive provisions.
Though existing contract law does not support the restrictions contained in many licenses, it may be tempting fate to wantonly disregard them. After all, who wants to become the defendant in the first test case? It is one thing to say, "they can’t win – they’re full of hogwash" and quite another to be confronted with the prospect of paying legal fees and costs to assert your defenses.
One thing is clear – duplicating commercial software for distribution is a violation of existing law. Ultimately, distribution of any unauthorized software that deprives the rightful owner income, profits, or any other benefits is probably a violation of the federal copyright laws (and hence, a crime) and may also constitute certain civil torts, such as interference with business or contractual relations. In some states, punitive damages are available for this conduct. It is not necessary to sell the product to run afoul of these laws. ANY distribution will do – including gift, sale, rental, etc.
The best course is, as always, common sense. We may quibble about whether we can be prevented from making two backups instead of only one, or whether it is all right to have VaporWorks on both the office and home Macs at the same time, but everyone knows that it is wrong to distribute someone else’s software without paying for it. That is known as piracy and in addition to being a criminal act, it is also as immoral as any shoplift or theft.