Contract v copyright (was Re: [oclug] cracked?)

[Howard Krakower]

Perhaps you haven't had the "opportunity" to install copywrited
software -- there is, as part of the install, a requirement to read
and accept the EULA. If you don't accept the EULA, the install
terminates. Consider the fact that these developers hire very
knowledgable legal counsel to ensure that anyone who does not accept
their licence cannot legally use their product. In theory (but
probably not in practice), if you purchased software as a consumer
without the disclosure of the EULA (because it is in the sealed
package and part of the install) and then, on reading the EULA found
that you did not want to accept it, you would legally be entitled to
return the product and receive a refund.

While I used to analyse licences for tax purposes (before the days of
software, ie., in the 1960's), I don't pretend to have any knowledge
of copywrite law. However, while you state that signatures by both
parties are required prior to the sale or assignment according the
Copywrite law, you may be missing some small adenda or regulation
that starts out with "for the purposes of section . . . " in lieu of
both parties signing, an act of acceptance by the end user shall be
considered as "signing". Such "clarifications" in law are quite
commonplace which is why we have "regulations"; law (the Act) can only
be amended by parrliament, but regulation can be made by Order in
Council.

Howard.

Saturday, January 10, 2004, 9:09:48 AM, Brad Barnett wrote:

BB> On Fri, 9 Jan 2004 22:42:23 -0500
BB> Howard Krakower <howardk at zed.net> wrote:

>> A "licence" is the right to use an asset within a definite geographic
>> boundary for a specified period of time in exchange for the payment of
>> a fee or royalty. The geographic boundary is determined by the
>> licensor (could be Canada, or worldwide, depending on the nature of
>> the licence). The period of time could be limited, as in the case of
>> the right to exhibit a film, or unlimited in the case of software
>> (because it becomes obsolete). Licences are considered as class 14
>> assets (Schedule B of the Income Tax Regulations) and are written off
>> over the life of the asset. If you read the EULA associated with
>> comercial s/w, you'll see that this all fits in. The restriction are
>> not pretty, though.
>> 

BB> You are missing the point entirely.

BB> 1)  Nothing, I repeat _nothing_ in copyright law states that these
BB> licenses are binding without the acceptance of _both_ parties.  It
BB> merely states that such a license can be assigned.  Firstly, a copyright
BB> holder could have 100 different licenses, all to be used with different
BB> publishers.  Licenses are part of any negotiation for purchase or use, and
BB> are negotiated PRIOR TO SALE, with SIGNATURES BY BOTH PARTIES IN WRITING.
BB> The copyright act even _stresses_ that a written signature is _required_
BB> by the copyright holder to even _assign_ a license.

BB> 2)  None of the above indicates the consumer is bound by any particular
BB> license, without the consumer's prior knowledge of the license, or
BB> acceptance of it, prior to negotiating a purchase.

BB> You can not hoodwink people into retroactively accepting a restrictive
BB> license, a contract, and agreement, or ANY TERMS OR CONDITIONS after the
BB> negotiations are completed!!!  The only exception to this rule would be
BB> a law stating otherwise, and copyright law DOES NOT STATE THAT.

BB> Good grief.  


>> Howard.
>> 
>> Friday, January 9, 2004, 3:16:51 PM, Charlie Brady wrote:
>> 
>> 
>> CB> On Fri, 9 Jan 2004, Brad Barnett wrote:
>> 
>> >> No, you are not bound by any license, unless you specifically agree
>> >to it> by _signing_ for it _prior_ to purchase.
>> 
>> CB> That'd make it a contract, not a license.  
>> 
>> CB> A license is a (conditional)  waiver of a restriction (which permits
>> CB> you to do what you would otherwise be prevented from doing). A
>> CB> license is unilateral (but might have a condition applied, such as
>> CB> you paying for your fishing license).
>> 
>> CB> ---
>> CB> Charlie
>> 
>> 
>> 
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>> ZedNet Technologies
>> visit us at http://www.zed.net
>> 
>> -- 
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>> OCLUG at lists.oclug.on.ca
>> http://www.oclug.on.ca/mailman/listinfo/oclug


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