Contract v copyright (was Re: [oclug] cracked?)
lists at L8R.net
Sat Jan 10 10:19:45 EST 2004
On Sat, 10 Jan 2004 09:49:49 -0500
Howard Krakower <howardk at zed.net> wrote:
> 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.
I'm sorry, this is not the case. When you purchase something, you
are negotiating a contract. Unless the EULA is fully available to you,
and you are made aware of it an all its contents prior to purchase, you
are not bound by it. Otherwise, it is not part of the sale (which is a
contract, the most ancient form of).
Yes, negotiating a price for something, and then purchasing it is a
contract. Without knowledge of the specifics of the EULA, or even
that it exists, you are not bound by it.
The "you may return this product if you do not like these terms" is not
legitimate. You have already purchased the product, the contract is
complete, and you are not bound by those terms. The software must work,
none the less.
Furthermore, by clicking on "I Agree", you do NOT bind yourself to those
terms. You, as a wise consumer, realise that this "License" is quite
inappropriate. You are not bound by it, because you have already
negotiated for this product and purchased it. You click "I Agree" and
laugh, because it is not worth your time to take such a matter to court in
order to get things straightened out. After all, you will simply do as
you please within the bounds of copyright law, and if the foolish
publisher thinks that his license is binding after the fact, then he can
damn well take you to court! Obviously he will lose, with such a devious,
dishonest, and illegal tactic!
This is what enters into the minds of many Canadians, as the click on "I
Agree". Many also realise that this software is published out of
country, and imported into Canada, with legalese not meant for this
land. The rest simply assume that because something exists, it must be
legal (as you do above). Unfortunately, if that were the case, we wouldn't
need lawyers, courts, and the legal system, would we?
People would only do legal and legitimate things.
The problem is, until the last 5 years or so, software has not been
mainstream. Even worse, 99.9999% of the people in Canada installing
software simply take the status quo as "The way things are" with software.
They echo your words above, thinking that "these developers hire very
knowledgable legal counsel to ensure that anyone who does not accept their
licence cannot legally use their product.".
Unfortunately, this is not the case.
EULAs are actually quite generic. They are not re-written for every
country in the world, and proof of this is in the pudding. Simply use a
US, English, and then Canadian version of MS software, and the EULA
remains the same.
Do you honestly think that ever aspect of copyright law remains constant
throughout all those countries? Do you even think that all English
speaking countries have identical legislation allowing for an EULA? No!
Of course they don't!
However, what does MS have to lose, if an EULA is not binding locally?
Why, nothing! Their software is still protected by copyright law, after
all, isn't it? Therefore, if you click "I agree", and you aren't bound,
it simply doesn't matter. Of course, even better if you think their
multi-national, generic EULA applies to you as well, perhaps you'll
voluntarily follow those terms, without even realising you are not bound!
Software developers are indeed a smart lot. Even better, is that if
enough of the population takes such silly, immoral, illegal
after-the-contract-of-sale-is-completed tactics as legal, legislation
becomes easier to enact in those countries!
Such tactics simply can not lose. After all, they are only protected by
copyright law. EULAs, as shown above, are helpful even if not binding, by
creating the perception that they are!
> 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
I have looked long, and hard, and not found such an amendment. However, I
have heard that the new DMCA style legislation being prepared for
Parliament might have such a clause (what ever happened to that, anyhow?)
However, the "digital signatures are binding, clicking "I agree is
binding" issue _still_ does not effect the concept of a contract _prior_
to purchase. If our lawmakers change this one specific bit of
information, I would be very concerned. After all, the very concept of
haggling, deal brokering, negotiating a purchase, ALL OF IT, is based upon
the concept of negotiating a deal, and then an exchange of some value.
After that, the deal is DONE. Retroactively assigning restrictions to
something you have purchased, AFTER the fact, is completely and totally
against every aspect of contract law. Such restrictions affect the value
and the price of a product whilst you are negotiating, and MUST be made
available during the negotiation!
> 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
> BB> copyright holder could have 100 different licenses, all to be used
> BB> with different publishers. Licenses are part of any negotiation for
> BB> purchase or use, and are negotiated PRIOR TO SALE, with SIGNATURES
> BB> BY BOTH PARTIES IN WRITING. The copyright act even _stresses_ that a
> BB> written signature is _required_ by the copyright holder to even
> BB> _assign_ a license.
> BB> 2) None of the above indicates the consumer is bound by any
> BB> particular license, without the consumer's prior knowledge of the
> BB> license, or acceptance of it, prior to negotiating a purchase.
> BB> You can not hoodwink people into retroactively accepting a
> BB> restrictive license, a contract, and agreement, or ANY TERMS OR
> BB> CONDITIONS after the negotiations are completed!!! The only
> BB> exception to this rule would be a law stating otherwise, and
> BB> 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
> >> --
> >> ZedNet Technologies
> >> visit us at http://www.zed.net
> >> --
> >> OCLUG general discussion list
> >> OCLUG at lists.oclug.on.ca
> >> http://www.oclug.on.ca/mailman/listinfo/oclug
> ZedNet Technologies
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