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Darren New wrote:
> somebody wrote:
>> "Invisible" <voi### [at] dev null> wrote in message
>> news:486267b2$1@news.povray.org...
>>
>>> So, the software is freely downloadable from their website, without any
>>> kind of restrictions, does not require any form of access code to
>>> activate, and when obtained legally comes with nothing to certify it's
>>> legality. But to use it you must "obtain a license".
>>>
>>> Is it just me, or does that seem weird to you?
>>
>> Not weird. Downloading and using are different.
>
> I think what's weird is that you don't need to agree to the license
> before you download it.
>
> What's illegal about using the software without a license?
>
I can download Windows XP without reading a license, that doesn't give
me permission (license) to use it.
>> 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. 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 and they would be using an
unlicensed copy of the code.
If, however, I said 'download the source code here to use it' that would
change a lot of things.
>> 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. I agree they are evil, but they
are still being enforced. You have the working version of the software,
and still have to agree to the license before using it.
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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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>> 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". ;-)
>> If I decide to claim we're licenced to put the software on 13 PCs, can
>> I prove my claim? Can the makers disprove my claim?
>
> 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?
If you claim that owning a physical CD is the "license", then
downloading the software from their website is essentially illegal - so
why are they offering this service?
--
http://blog.orphi.me.uk/
http://www.zazzle.com/MathematicalOrchid*
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>> If I decide to claim we're licenced to put the software on 13 PCs, can I
>> prove my claim? Can the makers disprove my claim?
>
> Yes, because there's a purchase history.
Not if I download another copy from their website there isn't.
--
http://blog.orphi.me.uk/
http://www.zazzle.com/MathematicalOrchid*
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Invisible schrieb:
> Is it just me, or does that seem weird to you?
This isn't half as weird as the following part of a software license:
<snip>
You agree you are not actively participating in the animal testing
industry, either owning or running a laboratory, supplying testing
equipment to laboratories, or funding animal testing. This includes
university and college medical and science departments, as well as
private organisations and government.
</snip>
Found here:
http://www.exttld.com/index.php?content=terms
My two eurocents,
Bonsai
--
<--------------------------->
___ __ __ _ ___ ___ _
| _ ) \ \( ) _) _ )( )
| _ \() |\ \ |\ \/ _ \| |
|___/__/_)\__)___)/ \_)_)
www.b0n541.net
<--------------------------->
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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.
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Darren New wrote:
> Sabrina Kilian wrote:
> > 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.
>
I don't know where the license Invisible copied was located. If it was
on the CD during the installer, then it's binding because you agree to
it before the program is actually running. If it's a slip of paper, AND
the CD installs without you clicking anything suggesting that you agree
to the license, then contract law would hold trump.
Myself, I would probably email the software creator and ask them
something along the lines of 'WTF is up with this license?' and continue
to use the software I paid for. But, companies are strange critters with
their own team of lawyers, and it's probably safer if it's being used on
the job to turn over the license to them and let them handle things.
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On Wed, 25 Jun 2008 17:19:19 -0700, Darren New wrote:
> Not because of the license, but because the downloading itself is
> illegal.
Depends on where you download it from. If you download it from MSDN,
it's perfectly legal.
Jim
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On Thu, 26 Jun 2008 09:13:48 +0100, Invisible wrote:
>>> If I decide to claim we're licenced to put the software on 13 PCs, can
>>> I prove my claim? Can the makers disprove my claim?
>>
>> Yes, because there's a purchase history.
>
> Not if I download another copy from their website there isn't.
If you download another copy from their website and they don't track that
sort of thing, I'd be surprised. But if they didn't track it, then shame
on them.
Jim
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Jim Henderson wrote:
> Depends on where you download it from. If you download it from MSDN,
> it's perfectly legal.
If you can download it from MSDN, you've already agreed to the license
when you signed up for MSDN.
It really is pretty simple. :-)
--
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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