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
eros@chovax.DEC (12/20/85)
In a recent article, John A. Wasser writes: > ...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... > > 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. I'm think there's a flaw here; this rationale can really only hold for software distributed to you directly from the developer. I have often observed distribution of shareware products over net.sources.mac by people who have copies. To use your example, if you received an unsolicited copy of the Encyclopedia you are not obligated to pay for it. That does not allow you however, to copy the Encyclopedia and give copies of it to all your friends. I agree that we don't need to get into a discussion of any 'moral imperatives' involved in Shareware, this is just another angle to look at... Tony Eros Digital Equipment Corporation ...decvax!decwrl!rhea!chovax!eros
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
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.BITNEThes@ecsvax.UUCP (Henry Schaffer) (01/03/86)
> 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 Casey I've entered into many oral contracts, sometimes for things much more expensive than a copy of dBaseIII ... . However these contracts have always been with people -- since you can't shake hands with a corporation. --henry schaffer
bzs@bu-cs.UUCP (Barry Shein) (01/06/86)
>From: hes@ecsvax.UUCP (Henry Schaffer) >> 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 Casey > I've entered into many oral contracts, sometimes for things much more >expensive than a copy of dBaseIII ... . However these contracts have >always been with people -- since you can't shake hands with a corporation. > >--henry schaffer As Samuel Goldwyn was credited with saying "A verbal agreement isn't worth the paper it's written on". Thank you, thank you, you've been a wonderful audience, god bless, thank you.. -Barry Shein, Boston University
clewis@mnetor.UUCP (Chris Lewis) (01/08/86)
In article <841@bu-cs.UUCP> bzs@bu-cs.UUCP (Barry Shein) writes: >> I've entered into many oral contracts, sometimes for things much more >>expensive than a copy of dBaseIII ... . However these contracts have >>always been with people -- since you can't shake hands with a corporation. >> >>--henry schaffer > >As Samuel Goldwyn was credited with saying "A verbal agreement isn't >worth the paper it's written on". Tell that to Texaco, they just lost a 15 billion dollar lawsuit with another oil company (Pennzoil? name escapes me now) over breaching an "oral contract". The amount will probably be successfully appealed, but the "oral contract" will probably stand. Aren't Texan juries wonderfull? -- Chris Lewis, UUCP: {allegra, linus, ihnp4}!utzoo!mnetor!clewis BELL: (416)-475-8980 ext. 321
olson@harvard.UUCP (Eric Olson) (01/08/86)
Please note that I've never posted a message like this before, and I would like to request that NO ONE start DISCUSSING this here, but: Why in the WORLD are you (plural) discussing the legality of shareware licenses HERE? This is a SOURCES newsgroup! Please continue your discussion in net.micro.mac (by virtue of WHAT sources newsgroup this is) or net.legal (where it BELONGS). -Eric.
her3@sphinx.UChicago.UUCP (Benjamin 'Drew' Herman) (01/15/86)
oh, come on!!! In the U.S. a company is legally a "person" with most of the rights as a person (although I don't know how you jail a company). Therefore, any appearent acceptance on the users part say "... breaking this seal ..." is a binding legal contract. Similarly, "keeping this soft(share)ware" for x days is also a legal contract. consequently Red_Ryder's 7.0 statement ie. Trash this program after XX days if you don't reimberse the author in that time is a legitamite- uninforceable contract with very serious legal ramifications. However, it is also possible to give yourself a copy (ie. the authors statement to -- give this program to all and many) and thereby extending the duration of you "free use" as long as you destroy the old copy. This last statement,however, is academic since all good computer users are more than willing to pay GOOD money for GOOD programs and do not bother with BAD, HORRIBLE programs --------------------------------------------------------------------------- "Don't just look down Lord, HELP!!" Drew Herman @UCHICAGO