jib@prism.UUCP (12/24/85)
I responded to this posting in net.legal, but I am repeating it here because it was apparently raised here, and because many of you many not read net.legal: /* Written 2:11 pm Dec 19, 1985 by jib@prism.UUCP in prism:net.legal */ 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. What is being offered is a contract -- and by downloading you accept the conditions attached to the software. > 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 because shareware does "look" more like a right to use than a sale of a product. The passing on of the conditions when you distribute the shareware is a restriction that you agreed to by downloading the software in the first place and therefore is enforceable. 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 --------------------------------------------------------------------------- Jim Block {cca, ihnp4!inmet, mit-eddie, wjh12, datacube} !mirror!prism!jib Mirror Systems, Inc. 2067 Massachusetts Ave. (617) 661-0777 Cambridge, MA 02140