[linux-audio-user] Licences are *not* contracts (Was: Re: Free Software vs. Open Source)

[Jan Depner]

On Tue, 2006-02-28 at 22:30 +0000, Frank Wales wrote:
> On 02/23/2006 01:37 AM, fons adriaensen wrote:
> > On Wed, Feb 22, 2006 at 08:17:38PM +0000, Frank Wales wrote:
> >> No, it isn't; licences are *not* contracts, and never have been.
> > 
> > I never said that a license *is* a contract. But when you buy
> > a license, and thereby agree to its terms, that act creates
> > a contract between you and the entity that grants the license.
> 
> I believe you are confusing some distinct issue here. To make my
> understanding of these issues clearer to you, here is a story:
> 
> Joe buys a piece of software in a shop, takes it home and attempts to
> install it.  The following dialogue appears on his computer:
> 
>    "This software is licensed, not sold.  You may only install or
>     use this software if you always wear a red hat.  You may not
>     lend, resell or give away this software.  Clicking on the
>     'I agree' button below indicates that you have accepted
>     these terms.  Unless you click 'I Agree', you may
>     not install or use the software."
> 
> Joe clicks 'I agree' and proceeds to use the software for
> its intended purpose.  Now answer these questions:
> 
>   0) Did Joe accept the conditions presented to him?
>   1) Has Joe entered into a contract of licensing with the
>      software vendor?
>   2) Is Joe required to wear a red hat while using
>      the software?
>   3) If Joe does not wear a red hat, is he breaking the law
>      by using the software?
>   4) Once he no longer wishes to use it, can Joe sell his
>      copy of the software to his sister Jo?
> 
> I believe the answers to these questions, at least in the
> USA and the EU, would be:
> 
>   0) Maybe, maybe not.
>   1) No
>   2) No
>   3) No
>   4) Yes
> 
> I base these answers on both legal advice on matters relating
> to the acquisition, development and supply of software over
> many years, and on my understanding of things like 17 USC 117
> and the EU Copyright Directive 91/250/EEC.
> 
> As I said before, I am not a lawyer, and this is not legal advice,
> but here is my attempt at explaining the above answers.
> 
> If I purchase a piece of software, say in a computer shop,
> then take it home and get presented with an end-user licence
> agreement during installation of that software, the terms
> of that licence agreement have no effect on the pre-existing
> contract of sale.  Vendors simply do not have the right to
> arbitrarily modify contracts of sale after the fact.
> 
> Moreover, from my perspective, I've purchased a *copy* of
> the software, not entered into some kind of sub-licensing
> or rental agreement with the vendor.  This is just the same
> kind of sale that happens if I buy a book or a DVD.  Since
> everyone involved, up to the point of purchase, acted like
> it was a sale, it is, no matter what a piece of paper
> inside the box claims about it not being a sale.
> 
> The contract of sale happens when the vendor, or their representative,
> takes my money and gives me the copy of the software, not at some
> random later time when the vendor deigns to present me with a bunch
> of conditions.
> 
> I am unaware of any other forms of contract between a purchaser
> of software and a vendor that might suddenly pop into existence
> when a licence is presented to a user, nor does the
> earlier act of purchasing connote assent to the subsequent
> alteration of the contract of sale by such a licence.
> 
> All the relevant legal advice I've had over the years indicates
> that the purchaser can take or leave the terms of the licence, and
> use the software they've already paid for anyway.
> 
> For any licence to have an impact on the contract of sale,
> the purchaser must have been fully cognizant of its terms
> before payment.  That software vendors generally don't make this
> possible tells you something about how confident they are in the
> reasonableness and enforceability of those terms.
> 
> Even if licences were to be presented to purchasers before
> the sale, presenting them on a take-it-or-leave-it basis wouldn't help
> the vendors' position; they would probably be considered as so-called
> "contracts of adhesion", and as such would be much harder for the
> vendors to enforce anyway, even with the buyer's signature.
> 
> In general (and certainly in the EU and the USA, I believe),
> consumers have the right to install, use, back-up, study and reverse
> engineer for the purposes of interoperability any software that they
> legally acquire a copy of, unless they specifically, and *before*
> agreeing to its purchase, negotiate away those rights.  Clicking 'I agree'
> constitutes neither legal assent, nor a negotiation of any kind.
> 

    All of the above was sounding really good up to the last paragraph.
That was sounding good too until you hit "reverse engineer for the
purposes of interoperability".  Even then it would be OK if you include
the caveat that the software (or other "intellectual property") must not
be protected by any form of encryption to protect intellectual property.
If it is, then you are in violation of the Digital Millennium Copyright
Act in the US if you reverse engineer or otherwise try to break the
protection.  You're probably OK in the EU but I'm not positive.

    Other than that one little point, I give you an A+ on this term
paper ;-)

-- 
Jan 'Evil Twin' Depner
The Fuzzy Dice
http://myweb.cableone.net/eviltwin69/fuzzy.html


"As we enjoy great advantages from the invention of others, we should be 
glad of an opportunity to serve others by any invention of ours, and 
this we should do freely and generously."

Benjamin Franklin, on declining patents offered by the governor of 
Pennsylvania for his "Pennsylvania Fireplace", c. 1744