wasser@viking.DEC (John A. Wasser) (12/16/85)
Is a Shareware License Enforceable?
At lunch today some friends and I were discussing the legality of "Limited
License Freely Distributed" software (a.k.a. Shareware or Freeware). The
general consensus was that when a piece of software is legally given to a member
of the public (either on a disk or through a network), time limited clauses
such as "You may use this software for up to 30 days after receiving it but
must at that time either send a registration fee or delete all copies" have
no legal validity. The thought is that since the software was provided
free it has the same status as any unsolicited merchandise given to you
freely. It is yours and as long as any COPYING is restricted to the limits
imposed by the copyright owner (usually "Distribute to anyone as long as not
for commercial gain") you cannot be forced to give up use of it. You have
a legally obtained copy and the right to use it for your own purposes.
Remember: Copyright only covers copying. It does not give the copyright
holder any rights to compensation for a work which he has chosen to give
away. If the Encyclopedia Britanica people were to send you a copy of
their encyclopedia for a 30 day free trial, and you have not asked for
such a trial, you are not obligated to pay for the encyclopedia.
One possible legal point is a clause in such "licenses" that requires
that if you make a copy and give it to someone (as allowed by the
copyright owner) you must first make sure the recipient knows about
the license he is (supposedly) getting into. Can the copyright owner
legally require you to pass on this "contract/license" as part of the
restrictions of the copyright? Is the "contract/license" binding on
the recipient?
Does anyone out there know if such a license is enforceable? I don't want
to get into a discussion about WHETHER the license SHOULD or SHOULD NOT be
enforceable, only whether it IS under current laws.
-John A. Wasser
Work address:
ARPAnet: WASSER%VIKING.DEC@decwrl.ARPA
Usenet: {allegra,Shasta,decvax}!decwrl!dec-rhea!dec-viking!wasser
Easynet: VIKING::WASSER
Telephone: (617)486-2505
USPS: Digital Equipment Corp.
Mail stop: LJO2/E4
30 Porter Rd
Littleton, MA 01460friesen@psivax.UUCP (Stanley Friesen) (12/18/85)
In article <27@decwrl.UUCP> wasser@viking.DEC (John A. Wasser) writes: > > Is a Shareware License Enforceable? > >The consensus was that when a piece of software is legally given to a member >of the public (either on a disk or through a network), time limited clauses >such as "You may use this software for up to 30 days after receiving it but >must at that time either send a registration fee or delete all copies" have >no legal validity. The thought is that since the software was provided >free it has the same status as any unsolicited merchandise given to you >freely. > >Remember: Copyright only covers copying. It does not give the copyright >holder any rights to compensation for a work which he has chosen to give >away. If the Encyclopedia Britanica people were to send you a copy of >their encyclopedia for a 30 day free trial, and you have not asked for >such a trial, you are not obligated to pay for the encyclopedia. > My impression is that the enforcibility would depend on whether you had known of and agreed to the time constraint *before* recieving the software. To continue the Encyclopedia Britanica example: If they *advertised* a 30 free trial period and you *ordered* a set on that basis then you *would* be obligated to pay at the end of the period unless you returned the encyclopedia. In htis case the "30-day trial" really amounts to a 30 day money-back gaurentee. On the other hand, if they just sent you an encyclopedia out of the blue you could keep it no matter what, and with no obligation to pay. At least that is my impression of the current law. -- Sarima (Stanley Friesen) UUCP: {ttidca|ihnp4|sdcrdcf|quad1|nrcvax|bellcore|logico}!psivax!friesen ARPA: ttidca!psivax!friesen@rand-unix.arpa
jib@prism.UUCP (12/19/85)
The following are only my opinions, (based on my legal education to be sure, but only opinions nonetheless). As far as I know the issues have not been litigated, and no "right" is enforceable unless a court decides it is. > > Is a Shareware License Enforceable? > > At lunch today some friends and I were discussing the legality of "Limited > License Freely Distributed" software (a.k.a. Shareware or Freeware). The > general consensus was that when a piece of software is legally given to a member > of the public (either on a disk or through a network), time limited clauses > such as "You may use this software for up to 30 days after receiving it but > must at that time either send a registration fee or delete all copies" have > no legal validity. The thought is that since the software was provided > free it has the same status as any unsolicited merchandise given to you > freely. It is yours and as long as any COPYING is restricted to the limits > imposed by the copyright owner (usually "Distribute to anyone as long as not > for commercial gain") you cannot be forced to give up use of it. You have > a legally obtained copy and the right to use it for your own purposes. > The software was given to you "freely" but not without conditions -- i.e., by accepting the software, you agreed to the terms under which it was offered. > Remember: Copyright only covers copying. It does not give the copyright > holder any rights to compensation for a work which he has chosen to give > away. If the Encyclopedia Britanica people were to send you a copy of > their encyclopedia for a 30 day free trial, and you have not asked for > such a trial, you are not obligated to pay for the encyclopedia. The EB example is true, ONLY IF THE EB MAILED YOU A COPY AS AN UNSOLICITED MAILING-- in which case, under Postal Regulations, you are not obliged to return it. Note however, that you are still not allowed to make use of the unsolicited mailing -- you either can dispose of it, or pay for it. (While people may not follow the regulation, this IS the rule.) > One possible legal point is a clause in such "licenses" that requires > that if you make a copy and give it to someone (as allowed by the > copyright owner) you must first make sure the recipient knows about > the license he is (supposedly) getting into. Can the copyright owner > legally require you to pass on this "contract/license" as part of the > restrictions of the copyright? Is the "contract/license" binding on > the recipient? It has nothing to do with the copyright, it is a condition of receiving the "gift". The enforceablity of license agreements in general is shakey, but this is because software looks and is dealt with as a product for sale rather than a license for the use of an intangible. But with shareware this argument is particularly weak. In practice, of course, you can do what your concience allows, but legally, in my opinion at least, the shareware agreements are enforceable. --------------------------------------------------------------------------- Jim Block {cca, ihnp4!inmet, mit-eddie, wjh12, datacube} !mirror!prism!jib Mirror Systems, Inc. 2067 Massachusetts Ave. (617) 661-0777 Cambridge, MA 02140
sean@ukma.UUCP (Sean Casey) (12/20/85)
In article <910@psivax.UUCP> friesen@psivax.UUCP (Stanley Friesen) writes: > My impression is that the enforcibility would depend on >whether you had known of and agreed to the time constraint *before* >recieving the software. To continue the Encyclopedia Britanica example: >If they *advertised* a 30 free trial period and you *ordered* a set on >that basis then you *would* be obligated to pay at the end of the >period unless you returned the encyclopedia. In htis case the "30-day >trial" really amounts to a 30 day money-back gaurentee. On the other >hand, if they just sent you an encyclopedia out of the blue you could >keep it no matter what, and with no obligation to pay. At least that >is my impression of the current law. This is the current law, but it specifically applies to things you receive in the mail. The law is: If you didn't order it, and you get it in the mail, you get to keep it. Period. There was even a television commercial a while back by the USPS pointing this out so that people wouldn't be deceived by mail fraud. I think we need a better example that is more relevant to the freeware issue. Sean -- ------------------------------------------------------------------------------- Sean Casey UUCP: sean@ukma.UUCP or 915 Patterson Office Tower {cbosgd,anlams,hasmed}!ukma!sean University of Kentucky ARPA: ukma!sean@ANL-MCS.ARPA Lexington, Ky. 40506-0027 BITNET: sean@UKMA.BITNET
gordon@trsvax (12/24/85)
/* Written 12:39 pm Dec 16, 1985 by decwrl.UU!wasser in trsvax:net.legal */ Is a Shareware License Enforceable? ... /* End of text from trsvax:net.legal */ If you want to sell software, sell software. Don't call it shareware. "Shareware" is software that is distributed free and the author requests a donation, which is not mandatory. Calling something shareware when you intend to require a payment isn't accurate. If you spread that description around a lot, this is known as false advertising, and if someone thinks they're getting it free because of that, a judge might agree with them. Copyright your software. Do not call it "public domain". Put copyright notices in the code. It wouldn't be a bad idea to put code in so that if someone patches the object code to remove the copyright message, the software won't run. This won't stop pirates for very long, especially if you distribute source code, but it might stop a few, and it shows you are serious about protecting the copyright. Sell software, complete with a nasty, user-threatening license agreement. Spell out what customers are allowed to do with the software (for personal use only, any number of CPUs but only one at a time OR per-cpu OR something else you might think up). State a fixed price. Offer a site license to businesses at a significant discount per-cpu compared to the one-user per-cpu rate. But be nice to your customers. Offer them a 30-day money-back guaran- tee, but make them remove all copies of the program before they can get their money back. Also offer them credit: payment due in 30 days, interest and penalties start after 45 days, so they don't have to pay before they get a chance to look at the software. (Be sure you comply with the Truth in Lending require- ments, and usury laws. Also, don't try to duck sales and income taxes). You don't want to take someone to court and then have them get away with agreeing to destroy their copy of the software, so make it very explicit that after 30 days they have purchased the software and must pay for it. Include threatening clauses requiring them to pay the costs of collection. Disclaim any warranty after the 30-day period. Disclaim liability for everything ever done by anyone to anyone any time for any reason. You may not get away with this, but the fact you allow the user use of the software to determine if it's suitable may make your case a bit stronger when someone sues because it doesn't work properly with a Banana* LaserScribbler* and an Admiral* Missile Launcher in the same system. Offer your customers re-distribution licenses. A redistribution license costs, say, 90% of the software, and permits the customer to give a copy to someone else with the same terms that he got it: the right to use the software, the 30-day guarantee, the credit, and the right to buy redistribution licenses. Require that your customer pass on a copy of the license agreement. The administration of this is handled with applications for re- distribution licenses: the seller fills in his part, gives it to the buyer, who (after he's had his 30 day trial), sends it to the author with payment. The author sends the seller his 10%. The re-distribution license should specify a fixed price for sale to a new customer. Let registered users distribute updated versions of the software to other registered users who have earlier versions without charge. Say something in the license that prevents 3 or more people from giving each other 30-day money-back guarantee periods in rota- tion, without any one of them ever having the software for more than 30 days at one time. To avoid piracy, since the above scheme doesn't really let you keep track of who's got the program unless they cooperate or you find out somehow, like catch them trying to sell it, offer ser- vices worth something to registered users. Offer them low-cost, high-quality printed copies of the user manual. Offer telephone or mail support. Offer a newsletter. Offer distributions of the latest version for a nominal charge to cover the media, copying, and mailing. Usual disclaimer: I am not a lawyer, and if you intend actually following this suggestion, you should consult one. There are a lot of details that can trip you up, especially concerning consequential liability for bugs. Gordon Burditt ...!convex!ctvax!trsvax!sneaky!gordon * Banana, Admiral, and LaserScribbler are probably a trade mark of someone's. For that matter, every word in this article is probably a trademark. The opinions expressed in this article are those of the author alone. If anyone believes that an organization can have its own opinions, independent of the individual people that make it up, I have some copyrighted swamp land about 30 miles south of Galveston Island, Texas, you might be interested in buying ...
jib@prism.UUCP (12/24/85)
The law is not that you "get to keep it" -- it is that you DON'T have to
respond or send it back. This may sound like a minor distinction, but it
is not -- you are NOT entitled to make use of the unsolicited merchandise
without payment.
By the way -- shareware is not quite the same -- if you know of the
conditions attached to the receipt of the software, you are contractually
bound to them by downloading the software -- they are conditions of
receipt which you accept by downloading. If the software is posted (by
the author) without conditions, then you could probably consider it an
unconditional gift.
---------------------------------------------------------------------------
Jim Block {cca, ihnp4!inmet, mit-eddie, wjh12, datacube} !mirror!prism!jib
Mirror Systems, Inc. 2067 Massachusetts Ave.
(617) 661-0777 Cambridge, MA 02140mmar@sphinx.UChicago.UUCP (Mitchell Marks) (12/25/85)
[Naw, I don't really believe there's a line-eater.] really believe there's a line-eater. > From: wasser@viking.DEC (John A. Wasser) > Message-ID: <27@decwrl.UUCP> > One possible legal point is a clause in such "licenses" that requires > that if you make a copy and give it to someone (as allowed by the > copyright owner) you must first make sure the recipient knows about > the license he is (supposedly) getting into. Can the copyright owner > legally require you to pass on this "contract/license" as part of the > restrictions of the copyright? Is the "contract/license" binding on > the recipient? Do you know the statement in the front of Penguin books? (I mean real English Penguins, not books published in the U.S. since the Viking Penguin merger.) It goes like this: Except in the United States of America, this book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hired out, or otherwise circulated without the publisher's prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser. If you're a fan of recursion and self-reference, you should enjoy that. The last "including *this* condition" is particularly nice, though I'm not sure it manages to say exactly what it wants. The general intention, however, is clear: they want to forbid ANYbody who has the book at ANY time from rebinding it. (The main target must be libraries, who like to take the covers off paperbacks, laminate them in stiff plastic, and reglue them, producing an ersatz hardcover book.) But why "[e]xcept in the United States"? I've asked a few lawyers, and the clearest answer was that U.S. contract law does not allow (does not enforce) this sort of third-party condition. If this explanation is correct, it could also apply to software. BTW, the general principle seems good, though peculiar at first glance. For instance, it gives a basis for breaking the restrictive covenants that maintained segregated housing in some places. -- -- Mitch Marks @ UChicago ...ihnp4!gargoyle!sphinx!mmar
ark@alice.UucP (Andrew Koenig) (12/26/85)
> The law is not that you "get to keep it" -- it is that you DON'T have to > respond or send it back. This may sound like a minor distinction, but it > is not -- you are NOT entitled to make use of the unsolicited merchandise > without payment. Can you tell me your source for this? My understanding has always been that if someone sends you something you didn't order (unless it's something like a mistake in which you ordered something and they sent something different), then that thing is a gift and you can keep it, use it, and not pay for it.
u549515232ea@ucdavis.UUCP (0040) (12/29/85)
> > Is a Shareware License Enforceable? > > At lunch today some friends and I were discussing the legality of "Limited > License Freely Distributed" software (a.k.a. Shareware or Freeware). The > general consensus was that when a piece of software is legally given to a member > of the public (either on a disk or through a network), time limited clauses > such as "You may use this software for up to 30 days after receiving it but > must at that time either send a registration fee or delete all copies" have > no legal validity. The thought is that since the software was provided > free it has the same status as any unsolicited merchandise given to you > freely. It is yours and as long as any COPYING is restricted to the limits > imposed by the copyright owner (usually "Distribute to anyone as long as not > for commercial gain") you cannot be forced to give up use of it. You have > a legally obtained copy and the right to use it for your own purposes. > > Remember: Copyright only covers copying. It does not give the copyright > holder any rights to compensation for a work which he has chosen to give > away. If the Encyclopedia Britanica people were to send you a copy of > their encyclopedia for a 30 day free trial, and you have not asked for > such a trial, you are not obligated to pay for the encyclopedia. > > One possible legal point is a clause in such "licenses" that requires > that if you make a copy and give it to someone (as allowed by the > copyright owner) you must first make sure the recipient knows about > the license he is (supposedly) getting into. Can the copyright owner > legally require you to pass on this "contract/license" as part of the > restrictions of the copyright? Is the "contract/license" binding on > the recipient? > > Does anyone out there know if such a license is enforceable? I don't want > to get into a discussion about WHETHER the license SHOULD or SHOULD NOT be > enforceable, only whether it IS under current laws. > > -John A. Wasser > > Work address: > ARPAnet: WASSER%VIKING.DEC@decwrl.ARPA > Usenet: {allegra,Shasta,decvax}!decwrl!dec-rhea!dec-viking!wasser > Easynet: VIKING::WASSER > Telephone: (617)486-2505 > USPS: Digital Equipment Corp. > Mail stop: LJO2/E4 > 30 Porter Rd > Littleton, MA 01460 In terms of contractual legality there are 6 points that must be fulfilled for aconract to be legally enforceable: agreement, consideration, contractual capacity, legality, reality of assent, and form. By the acceptance of the shareware the party accepting it has entered into an implied-in-fact, informal contract with the distributor or representative of the offeree (the person offering the software). The terms of acceptance are stipulated in the contract and acceptance is implied by the usage and possession of the software itself. The person accepting the software need not say he accepts the software and need not sign anything. Also, saying that he did not see the permission (i.e. the terms of the contract and cost) for use is legally unacceptable and not valid as a defense. About the only way to avoid paying involves the contractual capacity of the offeree. The offeree would have to be a minor in order to rescind the contract. Briefly, acceptance has been shown by the use or possession of the software. Consideration (i.e. payment) has been shown and stipulated in the software license. Contractual capacity is assumed (this can be done similar to mail order houses. Since it is prohibitive to ascertain the contractual capacity. also, anyone who uses a computer can be assumed competent). The legality of the contract has been shown because this contract is not for some act that is illegal. Reality of assent has been fulfilled because the contract is implied-in-fact and acceptance is genuine when the offeree takes posession of the software. No form is required here so this point is irrelevant (i.e. the law does not say this type of contract must be written). David Dunmire - U.C. Davis Dept. of Ag. Economics
ems@amdahl.UUCP (ems) (12/30/85)
> In terms of contractual legality there are 6 points that must be > fulfilled for aconract to be legally enforceable: agreement, > consideration, contractual > capacity, legality, reality of assent, and form. ... > By the acceptance of the shareware the party accepting it > has entered into an implied-in-fact, informal contract with the > distributor or representative of the offeree (the person offering > the software). The terms of acceptance are stipulated in the This presumes that the party accepting the software is aware it is shareware. > contract and acceptance is implied by the usage and > possession of the software itself. The person accepting the software > need not say he accepts the software and need not sign anything. > Also, saying that he did not see the permission (i.e. the terms > of the contract and cost) for use is legally unacceptable and not > valid as a defense. ... > Reality of assent has been fulfilled because the > contract is implied-in-fact and acceptance is genuine when the offeree > takes posession of the software. ... Only if the party accepting is aware that the software is shareware. If, upon notification, the party ceases to use or posess the software and rufuses to enter into the contract, then the contract should be void. If, upon notice, the party continues to use or posess the software then an implied-in-fact contract exists. The meaning of 'reality of assent' is just that. I just give real assent. (While I may unknowingly enter into large numbers of contracts daily by such acts as buying soap, eating in a restaurant, etc. I have given my real assent by being presumed to understand those normal activities. If I did not understand the meaning of shareware, there was no reality of assent. Even for signed, written contracts; If one party can be shown to have not read or understood the contract, it can be voided. The basis of contract law is a meeting of the minds, where no such mutual understanding existed, there is no contract; regardless of form.) -- E. Michael Smith ...!{hplabs,ihnp4,amd,nsc}!amdahl!ems This is the obligatory disclaimer of everything.
sean@ukma.UUCP (Sean Casey) (12/31/85)
What if the software just appears on my doorstep (i.g. Usenet)? Isn't that
like being mailed something when you didn't ask for it and then being sent
the bill?
God I hope they don't pass the "shrink wrap" law. That could have a lot of
bad implications for people's freedom. I prefer to think that my signature
is required before I involve myself in an agreement.
Sean
--
-------------------------------------------------------------------------------
Sean Casey UUCP: sean@ukma.UUCP or
915 Patterson Office Tower {cbosgd,anlams,hasmed}!ukma!sean
University of Kentucky ARPA: ukma!sean@ANL-MCS.ARPA
Lexington, Ky. 40506-0027 BITNET: sean@UKMA.BITNETtim@ism780c.UUCP (Tim Smith) (01/04/86)
In article <4747@alice.UUCP> ark@alice.UucP (Andrew Koenig) writes: >> The law is not that you "get to keep it" -- it is that you DON'T have to >> respond or send it back. This may sound like a minor distinction, but it >> is not -- you are NOT entitled to make use of the unsolicited merchandise >> without payment. > >Can you tell me your source for this? My understanding has always >been that if someone sends you something you didn't order (unless >it's something like a mistake in which you ordered something and >they sent something different), then that thing is a gift and you >can keep it, use it, and not pay for it. Dear Abby agrees with Andrew. -- Tim Smith sdcrdcf!ism780c!tim || ima!ism780!tim || ihnp4!cithep!tim