sbm@purdue.UUCP (Steven B. Munson) (12/20/85)
In article <27@decwrl.UUCP>, wasser@viking.DEC (John A. Wasser) writes: > > 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. ... > ... 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 understanding of unsolicited merchandise is that I have the right to mark it "refused" and return it unopened without paying any postage, not that I can keep it forever without paying for it. If you get an Encyclopedia Britannica on a 30 day free trial and don't return it within 30 days, you will get a bill and be expected to pay for it. Have you ever received anything on a 30 day free trial and kept it for free? I don't know that I like shareware much, and I don't intend this as an argument that the "shareware statement" is not legally binding. In the case of shareware, returning it makes little sense, and it is impossible to tell whether or not it has been "opened". However, what you have said about free trials is clearly false. Steve Munson sbm@Purdue.EDU sbm@Purdue.CSNET
chuq@sun.uucp (Chuq Von Rospach) (12/22/85)
>> ... 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. [emphasis mine] > My understanding of unsolicited merchandise is that I have the right >to mark it "refused" and return it unopened without paying any postage, not >that I can keep it forever without paying for it. Steve, you missed a major clause here. The Postal Code is quite clear: If you receive a package THAT YOU DID NOT ORDER, you are welcome to keep the merchandise with no financial obligation. This, of course, has nothing to do with a 30 day free trial, because a 30 day free trial assumes that you've contracted with the company to purchase a product and the company has agreed to cancel that contract at your wish in the first 30 days. If you don't open it and mark it refused, you aren't liable for any cost or any postage. If you do open it, you are usually required to fund return postage, and the return agreement is whatever is in the contract involved. > > Is a Shareware License Enforceable? Neither of these cases has anything to do with Shareware, either. A shareware license restriction MIGHT be enforceable under copyright law. If I copyright the work I can control how that work is used. A good argument would be made, however, that the form of distribution puts it into the public domain because the author has relinquished control of the distribution. My personal opinion is that shareware is in the public domain, and that any requirement to pay is a moral one, not a legal one. In other words, you get the software and the author gets what you think its worth. The author, regardless of the words on the software, has relinquished control of the distribution and has published it as though it were public domain software. On the face of it, then, it IS public domain. This is complicated in a number of areas though: o What do you do is a shareware author 'worms' the software so that it becomes worthless if you don't register is? (Does anyone know of a case of this, by the way?) o What is the legality of taking a 'shareware' and reselling it (with or without credit) for personal gain? o There is the whole problem of removing credit from a piece of work, too. I don't think Shareware has a leg to stand on, legally. I think the power of shareware is the moral argument. "I put a lot of work into this. If you like it, help me defer the cost of that work" goes a long way. We won't know for sure until there is some tort in a court, and I doubt that shareware is going to be sued over any time soon... chuq [editorial postscript on worms: Worms, and any destructive copy protection scheme, is something for which the author should be shot on site. This goes, not only for Shareware software, but for all software from the Apple MacPascal 100 click monstrosity on down. If you find something with a worm in it, I suggest the following: o throw out the software (return it for refund LOUDLY if you paid for it) o yell to as many people as possible about it. o throw out the programmer, his machine, and toss a couple of bricks after him. ] -- :From catacombs of Castle Tarot: Chuq Von Rospach sun!chuq@decwrl.DEC.COM {hplabs,ihnp4,nsc,pyramid}!sun!chuq Power ennobles. Absolute power ennobles absolutely.
cjn@calmasd.UUCP (Cheryl Nemeth) (12/22/85)
I think the key to this is that if something is sent without any request then you have the right to keep it. If someone sends you a pound of gold and asks you to pay for it in thirty days, you have a legal right to keep it without paying anything. Generally you have to do something to get shareware.
jimb@amdcad.UUCP (Jim Budler) (12/24/85)
In article <3087@sun.uucp> chuq@sun.uucp (Chuq Von Rospach) writes: > >My personal opinion is that shareware is in the public domain, and that any >requirement to pay is a moral one, not a legal one. In other words, you get >the software and the author gets what you think its worth. The author, >regardless of the words on the software, has relinquished control of the >distribution and has published it as though it were public domain software. On >the face of it, then, it IS public domain. > Although I agree with most of what Chuq said in his article, I must take exception to his defining 'public domain' as equivalent to 'relinquishing control of distribution'. 'Shareware' to me falls in exactly the same legal position as the person in the airport who hands you a flower, expecting a donation. The law says clearly (most places) that you can accept the flower with no obligation to pay. But this should NOT be confused with 'public domain'. Public domain has a very specific legal place. If you want to you may print your own copies of the Shakespearian plays and sell them, as they are 'public domain'. You may NOT sell a VCR tape of a 49'ers game you record off TV, as these were only 'publically distributed' NOT 'public domain'. The legal concepts set up for T.V. are much closer to the Shareware question than the Encyclopedia examples we have been reading. The courts have upheld your right to record for your own non-commercial use anything which has been 'publically distributed'. At the same time they upheld the broadcaster's right to control all commercial use of the same 'publically distributed' material. How does this apply to shareware? Again, you can record it and use it, hampered only by your own morals, but you cannot sell it, and if the copyright notice prohibits you from further distribution (as with Apple's publically distributed software supplements on Compuserve) then you can't even give it away. Most shareware encourages further distribution so that isn't often a problem, but we have seen it here on Usenet ( remember Lonnie Albreck (SP?) thank you distribution of Versaterm?). -- Jim Budler Advanced Micro Devices, Inc. (408) 749-5806 Usenet: {ucbvax,decwrl,ihnp4,allegra,intelca}!amdcad!jimb Compuserve: 72415,1200 Bogus newsgroup: net.news: Move to end of .newsrc[yn^L]?
wasser@viking.DEC (John A. Wasser) (12/24/85)
> From: chuq > A shareware license restriction MIGHT be enforceable under > copyright law. If I copyright the work I can control how > that work is used. As my old "Speak and Spell" used to say... "I'm sorry, that is incorrect.". As a copyright owner you can control under what circumstances copies may be made (except as allowed by the Fair Use clause of the copyright law). If a person has a legally obtained copy they may USE it any way they want that doesn't involve copying it (including boiling it in chicken soup in an attempt to conjure a demon). > My personal opinion is that shareware is in the public domain, > and that any requirement to pay is a moral one, not a legal > one. I am fairly sure that a copyright owner does not automatically forfeit copyright protection by posting software on a network such as USENET. If there is a copyright owner, the software CANNOT be in the public domain (since the concepts are mutually exclusive). > I don't think Shareware has a leg to stand on, legally. My best guess is that if a clause such as: "You may make copies and give them away for free ONLY IF YOU FIRST MAKE SURE THE RECIPIENT KNOWS AND ACCEPTS THE RESTRICTIONS IN THIS LICENSE" is included in the Shareware license, it is sufficient to pass on a legal obligation to anyone who receives a copy of the software. This clause would mean that you cannot LEGALLY give a copy of the software to anyone who is not willing to abide by the license restrictions (including "Pay within 30 days"). If you give away, a copy without informing the person you are giving it to of the restrictions, you are in violation of the copyright restrictions. -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
matt@srs.UUCP (Matt Goheen) (12/24/85)
>In article <27@decwrl.UUCP>, wasser@viking.DEC (John A. Wasser) writes: >> >> Is a Shareware License Enforceable? >> ... 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. (caps added for emphasis - mwg) > ...what you have said about free trials is clearly false. > Steve Munson Mr. Wasser is indeed correct here. Anything sent to you in the mail, UNSOLICITED, is yours to keep. This makes a good deal of sense in that, if this was not the case, I could send out some bogus junk in the mail and charge $200 for it. The burden of returning it would then be on the recipient. Obviously this CAN'T be the case as lots of rip-off types would take full advantage and sue anyone who didn't return the merchandise within the trial period. As to how this applies to shareware (the original idea here), it's hard to say. I would say that a shareware license in not enforceable on the grounds that the author has given permission to copy and distribute the product. Once you are given a copy, it is yours to do as you want. If someone gave you a book (w/o you asking for it) and inside it said you could copy and/or distribute it but couldn't keep it unless you sent in $10, how seriously would you take it? Not very... Matt Goheen S.R. Systems {seismo,allegra}!rochester!srs!matt