you are said to have agreed with everything on that license. Now whether
such a license in general is enforceable is a hard question. The strongest
case in the United States supporting its enforcement is a decision by Judge
Frank Easterbrook in the Seventh Circuit Court of Appeals. But Easter-
brook is clear that the restrictions beyond copyright law depend upon there
being a contract. As he said, "Someone who found a copy of [a copyrighted
work] on the street would not be affected by the shrink-wrap license --
though the federal copyright laws of their own force would limit the finder's
ability to copy or transmit the application program."[11-16] Thus, to demonstrate
that the authors violated the law, you would have to demonstrate they had
purchased the product in a way that would have made them liable under
the contract.

All that was going to be very hard to prove. But just at the moment the
case was to come to trial, Mattel had a surprise. It had purchased the rights
to CPHack from the original authors, and now it was simply enforcing the
rights it was purchasing. No one, Mattel said, was free to distribute this
code, because this code was now Mattel's.

There was a squabble at this point about whether in fact the code was
Mattel's. The code had been distributed in a form that indicated it was gov-
erned by the GPL. The GPL made it impossible to sell the product in a way
that would revoke that license -- at least to those down the chain of distribu-
tion. The original sellers -- who received nothing except the promise that
this gaggle of American lawyers would go home -- were quick then to deny
that they had released the program under the GPL. But that denial rang hol-
low. The Mattel lawyers had apparently informed them that if Mattel had
been tricked, they would be guilty of fraud. And while that would have been
an idle threat (at least if the authors had simply agreed to transfer whatever
rights they had), it was apparently threat enough to get the authors to deny
that CPHack was in fact under the GPL.

Armed with this purchase, Mattel was able to convert the temporary in-
junction into something permanent. And the judge forbade others who had
apparently been restricted by the injunction from intervening to challenge
the injunction. As the case settled, and was affirmed by a court of appeals in
Boston, Mattel had the rights to CPHack; no one else could distribute it,
even if the purpose was simply to criticize the company, Mattel.

The first two centuries of copyright's history were two centuries of cen-
sorship.[11-17] Copyright was the censor's tool: the only things that could be
printed were those things printed by authorized presses; the only authorized
presses were those cooperating with the Crown.

[[186]]

p185 _ -chap- _ toc-1 _ p186w _ toc-2 _ +chap+ _ p187

v?