Invisible wrote:
>>> In another part of the license, it says "by downloading this software 
>>> you agree to the terms of this license" - but you cannot *see* those 
>>> terms until after you download it. ;-)
>>
>> In the USA, that's going to generally be unenforcable. You have to 
>> know what you're agreeing to before you agree to it. Basic contract law.
> 
> So it should say "by *using* this software you agree". ;-)

Basically, yes. But it has to be provable (to some degree of "provable") 
that you actually saw and understood the license. They can't let you 
download the package, have the license on a different page of their 
website, and then say "you agreed because you used it."

>> By putting it on more machines than you have CDs, you're making 
>> additional copies, which can be restricted against your will by 
>> copyright law. But if you only have three, and you didn't agree to a 
>> license at all, and you put it on three machines, you're golden. At 
>> least, in the USA.
> 
> OK. And the fact that I can download an unlimited number of copies from 
> their website with no record at all changes... what, exactly?

Changes compared to what? Technically, since you're the one requesting 
the download, you're the one making the copy. Computers don't make 
copies, people do.

> If you claim that owning a physical CD is the "license", 

I don't. Again, you're confusing two entirely different pieces of law. 
Owning a physical CD means someone else made the copy for you. Having a 
license isn't even covered by laws in the same government as making copies.

> downloading the software from their website is essentially illegal 

If they say "it's OK to download the software" without adding "as long 
as you agree to the license", then they're giving you permission to make 
a copy of their software by downloading it. (This is called a "license" 
in copyright terms, but I'm trying not to confuse things further - 
that's a different license than the one you agree to when you"use" the 
software.) If they don't condition the download on you accepting their 
usage license, then they can't impose that usage license later unless 
you re-agree to it.

It's really a pretty simple thing that's getting made complicated. 
Copyright law says you're not allowed to make a copy[1] without 
permission of the copyright holder. Contract law says there are six 
things[2] that have to be true about a contract before it is enforcable, 
one of which is that both parties must understand what it means and 
agree to be bound by it. One of the things copyright law *explicitly* 
allows is for you to make a copy if that's the normal way of using a 
product. You can't say "you can buy a copy of this audio CD, but you're 
not allowed to copy the bits into the RAM of the CD player." Once you 
have a copy of a program on a CD, and the normal way to use it is to 
copy it into the memory of the computer, that's technically not "making 
   a copy" any more than reading a book is "copying it into your brain".

But if you haven't agreed to the license, you're not bound by the 
license, even if copyright law says you're allowed to make a copy or to 
do whatever you want with the copy you bought. If they let you make a 
copy without agreeing to the license, they can't bind you to the license 
without further getting your explicit agreement to it. Hence the whole 
"before Windows lets you install this, click thru the "i agree to the 
license" dance. You already have the disk, so you're not making an 
illegal copy by installing it, so they have to get you to agree to the 
license *after* you install it and *before* it does anything you want it 
for.

[1] ... for some legal definitions of copy.

[2] the others being things like both parties have to get something out 
of it (so it's not a contract if I buy something for $0), both parties 
have to be old enough to be allowed to agree to contracts, that certain 
contracts have to be in writing, etc.

I'm still not a lawyer. Everything I say here may be completely 
inapplicable to your situation or your entire country.

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

Post a reply to this message