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

On 02/23/2006 01:37 AM, fons adriaensen wrote: 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. I wasn't trying to bolster that point; I was trying to indicate that existing laws might already make the whole licence agreement moot, since you don't have to accept it to use the product as it is intended to be used. I wasn't suggesting that one should presume no obligations; however, a licence *cannot* confer obligations onto you. In a cattle market, perhaps, but I know of no circumstances where a contract can exist between parties when there is no "meeting of minds". This can only exist where both parties are fully aware of the terms being integrated into an agreement, which simply *cannot* be the case when a licence is not available to one of the parties until after the contract is enacted, which is the typical EULA scenario. "Quite clear" for buying software!? Where are you shopping? To give a counter-example that's germane to audio, certain famous audio sample libraries are sold in a shrink-wrapped box that has the following comedy legal sticker on the outside: "By opening this product you accept the enclosed license agreement" The enclosed licence agreement includes words to the effect that you have no right to re-sell the product. The problem for the vendor is that such a distribution constraint falls away at the time of first sale in both the EU and the USA, so such a restriction on the buyer is simply unenforceable. Moreover, I'm unaware of a court in the civilized world that would accept that *any* part of the associated licence agreement was enforceable, precisely because you must first accept it before you can read it. -- Frank Wales [frank(a)limov.com]