A Fun Scenario
December 29, 2010
First, read the legal commentary and follow his links as well.
Now consider how spyware is generally installed. A user is enticed into downloading a program, and along with this program comes a spyware program. It’s marginally legal – the necessary text is in the EULA – but people generally don’t know they are installing it, and don’t want it.
Now, consider the Ninth Circuit’s decision in MDY v. Blizzard. Circumventing a “technological measure” that protects a copyrighted work violates the DMCA. That means that a spyware distributor could argue that using rootkit-like techniques to protect their software from being “tampered with” is a “technological measure” to protect their copyright. If the rootkit-as-DMCA-technological-measure argument is successful … presto, you have the perfect storm: spyware that leaves you legally liable for copyright violations if you remove it or disable it.
And the best part: how would the spyware owners know who you are in order to sue you? Because their software goes through all your files and watches your internet traffic, all on the up-and-up because you agreed to the EULA.
Do you own your computer, or don’t you? The line is becoming increasingly blurry in the commercial software world.
