[net.micro.mac] Facist Licensing Agreement

tdn@spice.cs.cmu.edu (Thomas Newton) (06/15/86)

I found the following "Agreement", relating to the electronic distribution of
the System, Finder, Font/DA Mover, and other related programs, in a file that
was in in one of the GENIE downloading areas.  It seems to prohibit:

    (1) Giving a downloaded copy of the System, Finder, etc. to anyone
        unless you get them to agree to the facist agreement, and then
        immediately destroy all your remaining copies.  (Say you found
        that you have the "Deadly System", you replace it with a newer
        version, and then you find that a friend who does not have any
        accounts on GENIE, Compuserve, and the like had the old system.
        If you obey the "license", either one of you will be stuck with
        the old system, or the system will have to be downloaded twice
        (which could obviously run into $$$).
    (2) Using a System disk on different Macs.  ("No, I can't use *that*
        System disk on the Mac at school because I've used it at home; I
        need to download another one"..as the $$$ goes through the roof).
    (3) Using a downloaded System, Font/DA Mover, etc. on any network of
        Macs (there goes the ability to use the Macs at CMU, even if one
        was willing to pay to download the System twice...the ones in the
        library and the ones in the MUG clubroom are on Appletalk -- the
        latter even run programs over it using Volumes).
    (4) Disassembling any part of the System, Finder, etc.
    (5) Any sort of distribution over USENET (USENET isn't "authorized").

Now I find all five of these things that are prohibited by the "Agreement"
with regards to downloaded software perfectly reasonable things to do (yes,
even number four, though most users will never want to disassemble anything).
We're talking about system software here -- the sort of stuff that every Mac
user gets with the machine -- not MacTerminal or MacDraw.

Of course, these five items aren't the only ones in the "Agreement".  It seems
to contain just about every restriction I have ever seen elsewhere, and then a
bit (check out the paragraphs about government use and about exports).  I have
included its text below, since it seems to be activated by downloading a file
whose description refers to it and not by simply reading it.

===========================================================================
    APPLE.LIC
===========================================================================
YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING THIS
SOFTWARE.  ANY DOWNLOADING, REPRODUCTION, COPYING OR OTHER USE OF THE SOFTWARE
WILL CONSTITUTE ACCEPTANCE OF THESE TERMS AND CONDITIONS.  IF YOU DO NOT AGREE
WITH THEM, YOU SHOULD DISCONTINUE THIS TRANSMISSION.

                         SINGLE-COMPUTER END USER
                        SOFTWARE LICENSE AGREEMENT


APPLE COMPUTER, INC. ("Apple") provides this software and licenses its use.
You assume responsibility for the selection of the software to achieve your
intended results, and for the installation and use of, and results obtained
from, the software.


                                 LICENSE
                                 _______

Pursuant to this license you may:

1.  Use the software only on a single Apple computer.  You must obtain a
supplementary license from Apple before using the software in connection with
systems and multiple central processing units, computer networks or emulations
on mainframe or minicomputers.

2.  Download the software only on media that is compatible with Apple
manufactured computers.

3.  Copy the software into any machine readable form for backup purposes in
support of your use of the software on the single Apple computer.

4.  Transfer the software and license to another party with a copy of this
Agreement provided the other party reads and agrees to accept the terms and
conditions of this Agreement.  If you transfer the software, you must at the
same time either transfer all copies, whether in printed or machine-readable
form, to the same party or destroy any copies not transferred.  Apple grants a
license to such other party under this Agreement and the other party will
accept such license by its initial use of the software.  If you transfer
possession of any copy of the software, in whole or in part, to another party,
your license is automatically terminated.

This software is protected by United States copyright law.  You must reproduce
the Apple copyright notice on any copy of the software.



THIS SOFTWARE MAY BE ELECTRONICALLY DISTRIBUTED ONLY BY AUTHORIZED ELECTRONIC
DISTRIBUTORS.  IT MAY BE DOWNLOADED ONLY FOR PERSONAL OR NON-COMMERCIAL USES
ON APPLE COMPUTERS AND MAY NOT BE REDISTRIBUTED OR USED FOR COMMERCIAL
PURPOSES WITHOUT AN EXPRESS SOFTWARE DISTRIBUTION LICENSE FROM APPLE.These
licenses are available from Apple's Software Licensing Department.

YOU MAY NOT MODIFY, REVERSE COMPILE, DISASSEMBLE, NETWORK, RENT, LEASE, LOAN
OR DISTRIBUTE THE SOFTWARE, OR ANY COPY, IN WHOLE OR IN PART.  YOU UNDERSTAND
THAT UNAUTHORIZED REPRODUCTION OF COPIES OF THE SOFTWARE OR UNAUTHORIZED
TRANSFER OF ANY COPY OF THE SOFTWARE MAY SUBJECT YOU TO A LAWSUIT FOR DAMAGES,
INJUNCTIVE RELIEF, AND ATTORNEY'S FEES.


                   Apple reserves all rights not expressly granted to you.

                         Export law assurances
                         _____________________

You agree and certify that neither the software and documentation nor any
direct product thereof  (1) is intended to be used for nuclear proliferation
or any other purpose prohibited by the United States Export Administration Act
of 1979, as amended (the "Act")  and the regulations promulgated thereunder,
and (2) is being or will be downloaded, shipped, transferred or reexported,
directly or indirectly, into any country prohibited by the Act and the
regulations promulgated thereunder.


                         Government End Users
                         ____________________

If you are acquiring the software on behalf of any unit or agency of the
United States government, you agree that:  (a) the software is "Commercial
Computer Software" as that term is defined in Paragraph 27.401 of the DoD
Supplement to the Federal Acquisition Regulations (the "Supplement") or is
within the equivalent classification of any other federal agencies'
regulations; (b) the software was developed at private expense, and no part of
it was developed with government funds; (c) the government's use of the
software is subject to "Restricted Rights" as that term is defined in clause
52.227-7013 (b)(3)(ii)  of the Supplement or in the equivalent clause of any
other federal agencies' regulations; (d)  the software is a "trade secret" of
Apple for all purposes of the Freedom of Information Act;  and (e)  each copy
of the software will contain the following Restricted Rights Legend:

                        "Restricted Rights Legend"
Use, duplication or disclosure is subject to restrictions as set forth in
subdivision (b)(3)(ii) of the Rights in Technical Data and Computer Software
clause at FAR 52.227-7013.  Manufacturer:  Apple Computer, Inc. 20525 Mariani
Avenue, Cupertino, California 95014.

You agree to indemnify Apple for any liability, loss, costs and expense
(including court costs and reasonable attorneys' fees) arising out of any
breach of the provisions of this Agreement relating to use by the government.


                                   Term
                                   ____

The license is effective until terminated.  You may terminate it at any time
by destroying the software together with all copies.  The license will also
terminate upon conditions set forth elsewhere in this Agreement or if you fail
to comply with any of the terms or conditions of this Agreement.  You agree
upon such termination to destroy all copies of the software.


                          Disclaimer of Warranty
                          ______________________

The software is provided "as is" without warranty of any kind, either express
or implied, with respect to its merchantability or its fitness for any
particular purpose.  The entire risk as to the quality and performance of the
software is with you.  Should the software prove defective, you (and not Apple
or an Apple authorized representative) assume the entire cost of all necessary
servicing, repair, or correction.

Apple does not warrant that the functions contained in the software will meet
your requirements or that the operation of the software will be uninterrupted
or error free or that defects in the software will be corrected.

Some states do not allow the exclusion of implied warranties, so the above
exclusion may not apply to you.  This warranty gives you specific legal rights
and you may also have other rights which vary from state to state.


                          Limitation of Remedies
                          ______________________

In no event will Apple be liable to you for any lost profits, lost savings or
other incidental, special or consequential damages arising out of the use of
or inability to use any software even if Apple or an authorized Apple
representative has been advised of the possibility of such damages, or for any
claim by any other party.

Some states do not allow the limitation or exclusion of liability for
incidental or consequential damages so the above limitation or exclusion may
not apply to you.

Apple's liability to you for actual damages for any cause whatsoever, and
regardless of the form of the action, will be limited to the greater of $500
or the money paid for the software that caused the damages or that is the
subject matter of, or is directly related to, the cause of action.


                                General
                                _______

This Agreement, if any attempt to network, rent, lease, or sublicense the
software, or, except as expressly provided in this Agreement, to transfer any
of the rights, duties, or obligations under this Agreement, becomes void.

The Agreement will be construed under the laws of the state of California,
except for that body of laws dealing with conflict of laws.  If any provision
of this Agreement shall be held by a court of competent jurisdiction to be
contrary to law, that provision will be enforced to the maximum  extent
permissible, and the remaining provisions of this Agreement shall remain in
full force and effect.
===========================================================================
    END APPLE.LIC
===========================================================================

                                        -- Thomas Newton

chuq@sun.uucp (Chuq Von Rospach) (06/17/86)

> I found the following "Agreement", relating to the electronic distribution of
> the System, Finder, Font/DA Mover, and other related programs, in a file that
> was in in one of the GENIE downloading areas.  It seems to prohibit:
> 
>     [...]

> Now I find all five of these things that are prohibited by the "Agreement"
> with regards to downloaded software perfectly reasonable things to do (yes,
> even number four, though most users will never want to disassemble anything).
> We're talking about system software here -- the sort of stuff that every Mac
> user gets with the machine -- not MacTerminal or MacDraw.

Look at it from Apple's point of view.  They are trying to get that software
out to their user base.  At the same time, it is proprietary software, and
they want to make absolutely sure that they retain the rights to it -- there
is a lot of time and money invested in that stuff, and it wouldn't do to put
it out in such a way that someone like Amiga could just snarf it and
'borrow' the routines or get it placed into the Public Domain.

So you have a tradeoff.  You need to keep legal happy that the software is
only going to be used as it is designed to be used on machines that were
bought to use it, but you also want to make sure the people who need it
can get to it. I thought that the agreement was reasonable, personally. Some
of the items are overkill, but when lawyers get involved that is to be 
expected. 

> Of course, these five items aren't the only ones in the "Agreement".  It seems
> to contain just about every restriction I have ever seen elsewhere, and then a
> bit (check out the paragraphs about government use and about exports).  I have
> included its text below, since it seems to be activated by downloading a file
> whose description refers to it and not by simply reading it.

I don't know how GENIE does it, but every associated file on CompuServe says
that you are NOT to download it until you've read the license, and that
downloading it means you agree with the license.  You know what you are
getting into, so I don't see a problem with that.

The Government and Export sections are humourous, but don't blame Apple.
You wonder why hammers run $400? Take a close look at GSA or Pentagon
procurement sometime.  Apple was just following those regulations.

There is a simple answer, of course.  You don't like the license, don't
download the software. Wait until your dealer gets it and gives you an
upgrade copy. And wait, and wait, and ...

Personally, I think this is a BIG step forward.  maybe someone should look
at getting USENET or INFO-MAC licensed for redistribution.  I would, but
I simply don't have time right now.

chuq

-- 
:From the lofty realms of Castle Plaid:          Chuq Von Rospach 
chuq%plaid@sun.COM	FidoNet: 125/84		 CompuServe: 73317,635
{decwrl,decvax,hplabs,ihnp4,pyramid,seismo,ucbvax}!sun!plaid!chuq

Dessert is probably the most important stage of the meal, since it will be
the last thing your guests remember before they pass out all over the table.
					-- The Anarchist Cookbook

jimb@amdcad.UUCP (Jim Budler) (06/17/86)

> 
> I found the following "Agreement", relating to the electronic distribution of
> the System, Finder, Font/DA Mover, and other related programs, in a file that
> was in in one of the GENIE downloading areas.  It seems to prohibit:
> 
You seem upset with the fact that Apple wishes to limit public distribution
of software which will be construed in the public eye as 'APPLE' software
to people whom Apple can reasonably guarantee will distribute a clean 'as
delivered by Apple' copy of the software.
Scenario:

	Joe Blow SuperHacker modifies a system 3.2 and gives it to all
his friends. It's still labelled System 3.2 copyright  Apple! Joe thought
his mod's were neat. His friends thought the mod's were neat. Somewhere in
the circle expanding around Joe, this modified System 3.2 has an adverse
interaction with SuperDuper Toy Company's financial database program
and they lose three days of on-time deliveries, which gets at least one
large multi-$ Christmas order cancelled.

	SuperDuper Toy Company sues Apple (all these consequential
damages clauses have variable applicability, you know), and Apple asks
SuperDuper, "Where'd you get this System Disk?". 

SuperDuper answers, "My friend."

Apple, pulling out license distribution agreement, and user manual
says, "Only software obtained from legally licensed distribution
points is legitimate software."

Case dismissed. Apple wins this one.

Scenario 2:

	Apple distributes the software without a restrictive license
agreement.

	Erata Computer Co. gets a copy of it, reverse engineers it,
uses a substantial portion of it in their Erata MacBuster Computer.

	Apple sues. Erata lawyers say, "You distributed the software
with no restrictions on its use or further distribution. We obtained it
through this distribution by you, Apple. Therefore we have a right to
use it any way we wish."

	Apple loses this one, including a lot of valuble 
intellectual knowledge which they spent a lot of bucks developing.



P.S. You spelled Fascist wrong.
-- 
 Jim Budler
 Advanced Micro Devices, Inc.
 (408) 749-5806
 Usenet: {ucbvax,decwrl,ihnp4,allegra,intelca}!amdcad!jimb
 Compuserve:	72415,1200

ephraim@wang.UUCP (pri=8 Ephraim Vishniac x76659 ms1459) (06/17/86)

> I found the following "Agreement", relating to the electronic distribution of
> the System, Finder, Font/DA Mover, and other related programs, in a file that
> was in in one of the GENIE downloading areas.  It seems to prohibit:
> 
>	[just about everything, including many common, inoffensive,
>	 even unavoidable practices]

Correct me if I'm wrong, lawyers, but here's what I remember from a course
in Management Concepts (the Honorable Dr. Wm. McKeeman presiding).  If a
contract specifies penalties for its violation, but the injured party fails
to pursue a remedy (whatever the contract specifies) at the first legal
opportunity, then the that party loses any rights to compensation under
that clause (including further penalties for further violations).
In other words, you shouldn't write unenforceable contracts,
because failure to enforce them could cost you your rights.  

Does this apply to software licenses?  I don't really know.  But I have
to laugh when I read this and other Apple licenses that cannot possibly
be enforced.  On my copy of *Pinball Construction Set*, for example, there
is a license that prohibits me from using the Apple System Software on the
diskette except in combination with *Deluxe Music Construction Set.*  That's
obvious not what they *meant* to say, but that's not a legally acceptable
defense.  Legally, it seems the only thing I can do is to replace the
System and Finder on my PCS disk with the *absolutely identical* software
that I received, without license or other restriction, from my local
Apple dealer!  [Curiously, PCS does not seem to have a license of its own.
It's copy-protected up the wazoo, but it doesn't say anywhere not to copy it.]

In a related vein, I suspect Apple will further undermine any rights they
might have sought to protect by this bizarre license (the electronic
distribution one, I mean) by privately telling developers not to worry
too much about things like the "no disassembly" clause.

Finally, I have a worse problem than the poster's Mac-at-home/Mac-at-school
problem: I have two Macs at home (and one in the office)!  Will I download
the System and Finder twice (thrice), and permanently mark every diskette
with the serial number of the machine in which I can use it?  Any bets?

Ephraim Vishniac
decvax!wanginst!wang!ephraim

ephraim@wang.UUCP (pri=8 Ephraim Vishniac x76659 ms1459) (06/18/86)

> You seem upset with the fact that Apple wishes to limit public distribution
> of software which will be construed in the public eye as 'APPLE' software
> to people whom Apple can reasonably guarantee will distribute a clean 'as
> delivered by Apple' copy of the software.
> Scenario 1:
> [Apple's bizarre license limits their liability and saves them from
>  an expensive lawsuit.]

> Scenario 2:
> Apple distributes the software without a restrictive license agreement.
> [Lack of Apple's bizarre license leads to gross copyright infringement.]
> 
>  Jim Budler

I think you're off-base here, Jim.  Taking the second scenario first, Apple
is protected by copyright laws.  The "no disassembly" clause of the license
is unrealistic, because users disassemble parts of the system every day in
the normal course of debugging.  Normally, they make no record of the
disassembled code, nor do they directly re-use it, but this still looks
like a violation of the license.  Could you debug without *ever* disassembling
or otherwise examining Apple system code?

As to the first scenario, the "no modifications" clause of the
Apple license is overly restrictive, even unenforceable, because it doesn't
say what constitutes a modification.  Adding a font?  A desk accessory?
Modifying a font?  Adding an INIT?  Editing the Finder's LAYO resource?
Tweaking an ICON or PICT?
Apple already has a licensing system for commercial distribution of the
Apple system software.  The restriction that the software to be distributed
has to come straight from Apple belongs in the commercial distribution
license, not assaulting every casual user who wants the latest system
off CompuServe.

Ephraim Vishniac
decvax!wanginst!wang!ephraim

rb@ccird1.UUCP (06/24/86)

In article <12021@amdcad.UUCP> jimb@amdcad.UUCP (Jim Budler) writes:
>> 
>> I found the following "Agreement", relating to the electronic distribution of
>> the System, Finder, Font/DA Mover, and other related programs, in a file that
>> was in in one of the GENIE downloading areas.  It seems to prohibit:
>> 
>You seem upset with the fact that Apple wishes to limit public distribution
>of software which will be construed in the public eye as 'APPLE' software
>to people whom Apple can reasonably guarantee will distribute a clean 'as
>delivered by Apple' copy of the software.
>Scenario:
>
>Apple, pulling out license distribution agreement, and user manual
>says, "Only software obtained from legally licensed distribution
>points is legitimate software."
>
>Scenario 2:
>	Apple distributes the software without a restrictive license
>agreement.
>
>	Erata Computer Co. gets a copy of it, reverse engineers it,
>uses a substantial portion of it in their Erata MacBuster Computer.

	Like Atari/MacCartridge? :-).
>
>	Apple sues. Erata lawyers say, "You distributed the software
>with no restrictions on its use or further distribution. We obtained it
>through this distribution by you, Apple. Therefore we have a right to
>use it any way we wish."
>
>	Apple loses this one, including a lot of valuble 
>intellectual knowledge which they spent a lot of bucks developing.
>

Scenario 3:
	Apple doesn't distribute via BBS, but sells upgrades through
	dealers.  Distribution costs are too high, so price is high,
	say $35-100/copy.  1 million Mac users scream "foul", more
	bad will.

It is nice to see someone use a BBS for distributing software.  OK,
so it costs a little bit extra, isn't $6 better than $60?  If you
don't have compuserve or whatever, you can still get it from a friend
who does, he just has to pay for two downloads, and probably pass the
cost on to you.  Perhaps where many copies are needed, a call to Apple
would yield an agreement, including a modest but reasonable fee, to
allow "authorised" reproduction for the specified number of copies.

I read the agreement, which is not much different than some of the "shrink
wrap" agreements on most software.  Apple had a good idea, using these
commercial BBS's as a distribution/sales network makes a lot of sense.

I hate "percieved value" prices, and "because you opened this, I own anything
you might write" agreements as much as anyone.  I also hate copy-protection,
"cute messages" and some of the other nonsense this industry tries to pull
off.  I hope people honor Apple's terms, maybe we'll see more of this
kind of distribution.

Instead of Flames, I'm giving a big Cheer to Apple.  Ya done good.
(I haven't been this charitable to Apple since the Mac came out :-).

Maybe these "commercial boards" can work out some royalty agreements.
It would certainly increase my usage if I found more worth the $6/hr
connect time, even at 300 baud.  Anyone for "Turbo" via BBS?

csanders@amdcad.UUCP (Craig S. Anderson) (06/27/86)

In article <521@ccird1.UUCP> rb@ccird1.UUCP (Rex Ballard) writes:
>It is nice to see someone use a BBS for distributing software.  OK,
>so it costs a little bit extra, isn't $6 better than $60?  If you
>don't have compuserve or whatever, you can still get it from a friend
>who does, he just has to pay for two downloads, and probably pass the
>cost on to you.  Perhaps where many copies are needed, a call to Apple
>would yield an agreement, including a modest but reasonable fee, to
>allow "authorised" reproduction for the specified number of copies.

I am not a lawyer, but I think Apple could have put a statement like
"Anybody you distribute this software to also agrees to abide
by this contract/agreement" instead of having the idiotic situation of having
to download the same software twice to give to a friend.  I am
also kind of mad that Apple sold me a Mac+ with the "deadly"
System 3.0/Finder 5.1 software months after they knew of the problem
(i.e. late May).  However, I am still glad they chose to
use Compuserve to distribute the new OS instead of having to wait
8 weeks for some dealer to get it.

Craig Anderson
{your favourite backbone}!amdcad!csanders