Sabrina Kilian wrote:
> I can download Windows XP without reading a license, that doesn't give 
> me permission (license) to use it.

Not because of the license, but because the downloading itself is illegal.

>>> Think of it as shareware
>>> with 0 day limit but not crippled, which may be what's confusing you.
>>
>> Except if the shareware didn't say "you have to pay for this" up 
>> front, you'd be justified in continuing to use it. (I am not a lawyer, 
>> and I'm talking about "legally justified" not morally justified, 
>> perhaps.)
>>
> 
> I think lawyers would disagree. It's a hazy area.

Certainly.

The basic point is that a license is unenforcable if you didn't agree to 
it. Copyright is enforcable even if you don't agree to it.

 > Let's say I put up
> some java based website that does something that people want to do. I go 
> to no trouble of hiding the java files, and maybe even leave the source 
> code out there for people to look at. Just because it is available does 
> not mean that someone else could take that source code and build a 
> duplicate site. I would still have copyright

Right.

> and they would be using an 
> unlicensed copy of the code.

Irrelevant. It's the copyright preventing them from making a copy, not a 
license issue at all. If you were to take them to court and say "they 
didn't agree to the license", the court would ask you what you're suing 
for, then, since there is no contract.

It's exactly the same situation as someone giving you a quote to paint 
your house, you deciding you don't want to spend that much, and them 
charging you anyway. Without agreement, there is no license.

Indeed, in the USA, even *with* agreement, if the license prevents you 
from doing something copyright law says you may do, the license is 
invalid. (See Prolock v CopyWrite)

> If, however, I said 'download the source code here to use it' that would 
> change a lot of things.

Yes. That would be giving them a license to *copy* it, not use it. You 
can of course condition the license to copy on particular uses, like the 
GPL does.

If you mail me a music CD out of the blue, and then say "you're not 
allowed to listen to this until you pay me for it", you're not likely to 
win your court case when I enjoy it anyway in all the ways that 
copyright law allows.

>>> the fact that the software functions without licensing does not make
>>> using it without obtaining one any less illegal.
>>
>> The fact that the license is presented after you already have a 
>> functioning version of the software is what makes the license 
>> meaningless, at least in the USA.
> 
> According to whom? Inside the box and click-thru while installing 
> licenses are still common in the USA. 

Yep. Neither is enforcable if (for example) the store won't take the 
software back if you disagree with the license. Of course, it hasn't 
really been through too many courts, but that's the general consensus - 
you actually have to have agreement. Simply (for example) putting a link 
on the home page that says "go here to read the terms of use" isn't 
enough to show the person agreed to the terms of use.

> I agree they are evil, but they are still being enforced. 

Because people are agreeing with the licenses. Note that if the 
shrink-wrap license is *inside* the shrink-wrap and you can't see it 
before you use the software, it's not generally enforcable. If the store 
won't take back the software because you disagree with the license, it's 
not enforcable. Otherwise, I'll just put a paper inside the sealed box 
that says "by opening this box, you owe me 3x the money," and that 
should be enforcable too.

This is all basic contract law. You can't bill someone for work they 
didn't agree to after you already do the work. You can't let someone 
pump gas, then tell them after its in their tank that the price actually 
went up while they were pumping it. You can't fix someone's car, then 
afterwards tell them they're obligated to drive you to work the next 
morning.

 > You have the working version of the software,
> and still have to agree to the license before using it.

It's not working before you install it and click through. That's the 
point. You agree with the license in order to get to the login screen. 
You can get up to the point where you read the license agreement as 
often as you want without the seller having any ability to legally stop 
you from doing that.

-- 
Darren New / San Diego, CA, USA (PST)
  Helpful housekeeping hints:
   Check your feather pillows for holes
    before putting them in the washing machine.

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