twb@hoqax.UUCP (T.W. Beattie) (03/25/89)
The discussion of shareware liscense agreements seems to assume that people actually read the request for payment frequently buried in a file somewhere. I don't see how these requests can be considered legally binding since there is no way to insure that a person has even seen them. Many programs, PKZIP for example, are so easy to use that the documentation is easily ignored. Some software display a request for payment on a start-up screen. I suspect these programs quickly fade into obscurity. So software authors face a choice. Make good, easy to use software that gets widely used and hope to receive payment or make good, difficult to use software that is either so good it generates a payment or it is ignored. The author in the second case also has the problem of having to respond to payments with some way to get rid of the request for payment (patch, or replace). --- Tom Beattie att!hoqaa!twb t.w.beattie@att.com
manes@marob.MASA.COM (Steve Manes) (03/25/89)
From article <2214@hoqax.UUCP>, by twb@hoqax.UUCP (T.W. Beattie): > The discussion of shareware liscense agreements seems to assume that people > actually read the request for payment frequently buried in a file somewhere. > I don't see how these requests can be considered legally binding since there > is no way to insure that a person has even seen them. A copyright is a copyright. Buried in the fine print of a commercially-distributed phonograph record, CD or prerecorded cassette is the statement "Unauthorized duplication is a violation of applicable laws". Most people won't even see/bother to read this either. Nevertheless, record and tape piracy is a prosecutable criminal offense. All that's needed is the statement. If it's legal, it's enforceable. If you don't bother to look for a copyright notice, does that imply your right to repackage the program, change the name and resell it? > Some software display a request for payment on a start-up screen. > I suspect these programs quickly fade into obscurity. Sure. Like those obscure Shareware programs, PC-WRITE and PROCOMM. -- Steve Manes Roxy Recorders, Inc. Magpie-HQ BBS UUCP : {rutgers|cmcl2}!hombre!magpie!manes (212)420-0527 Smail: manes@MASA.COM
spolsky-joel@CS.YALE.EDU (Joel Spolsky) (03/26/89)
In article <2214@hoqax.UUCP> twb@hoqax.UUCP (T.W. Beattie) writes: > >The discussion of shareware liscense agreements seems to assume that people >actually read the request for payment frequently buried in a file somewhere. >I don't see how these requests can be considered legally binding since there >is no way to insure that a person has even seen them. > Absolutely false. Just because you didn't read the request to pay doesn't mean you don't _have_ to pay. If you go into a barber shop and sit down, and get your hair cut, you can't complain that you "never read" the sign with the prices posted, you are certainly obligated to pay. "In the absence of a contrary statute, acceptance of goods or services by a person who did not request them is an expression of assent to contract if that person knew or reasonably should have known that the goods or services were offered with the expectation of compensation". (Chem-Teonix Laboratories, Inc., v. Solocast Company, 5 Conn. Cir. 533, 258 A.2d 110 (1968)). I wish people would stop thinking that it was _legal_ to use shareware without paying, because it certainly isn't. The law might not be enforced, but that is a different issue. +----------------+----------------------------------------------------------+ | Joel Spolsky | bitnet: spolsky@yalecs.bitnet uucp: ...!yale!spolsky | | | internet: spolsky@cs.yale.edu voicenet: 203-436-1483 | +----------------+----------------------------------------------------------+ #include <disclaimer.h>
jbuck@epimass.EPI.COM (Joe Buck) (03/26/89)
In article <54799@yale-celray.yale.UUCP> spolsky-joel@CS.YALE.EDU (Joel Spolsky) writes: >Absolutely false. Just because you didn't read the request to pay >doesn't mean you don't _have_ to pay. If you go into a barber shop and >sit down, and get your hair cut, you can't complain that you "never >read" the sign with the prices posted, you are certainly obligated to >pay. There are thousands of years of common law behind the notion that you must pay a barber. Shareware is a brand-new legal invention, untested in the courts. We really don't know what the law is. It may be that the ASP folks are fooling themselves. Just the same, I don't use any shareware that demands payment and have no intention of doing so. > "In the absence of a contrary statute, acceptance of goods > or services by a person who did not request them is an > expression of assent to contract if that person knew > or reasonably should have known that the goods or services > were offered with the expectation of compensation". > (Chem-Teonix Laboratories, Inc., v. Solocast Company, 5 Conn. > Cir. 533, 258 A.2d 110 (1968)). This is a foolish example. Until recently, all software distributed on Usenet was completely free of charge. Given this history, it simply isn't true that someone reasonably should have known that they owed money for a program posted on Usenet with an obscurely worded shareware fee mentioned at the bottom of some documentation file that no one reads. Unless the fee demand is at the top of the posting in big letters or printed by the program, there is no way people are going to know. >I wish people would stop thinking that it was _legal_ to use shareware >without paying, because it certainly isn't. The law might not be >enforced, but that is a different issue. It may or may not be legal. The first judge to hear a shareware lawsuit might decide to throw out the whole concept. The law is not enforced because no legislator passed it; it was simply made up by computer programmers. -- -- Joe Buck jbuck@epimass.epi.com, uunet!epimass.epi.com!jbuck
twb@hoqax.UUCP (T.W. Beattie) (03/27/89)
In article <54799@yale-celray.yale.UUCP> spolsky-joel@CS.YALE.EDU (Joel Spolsky) writes: >In article <2214@hoqax.UUCP> twb@hoqax.UUCP (T.W. Beattie) writes: << <<The discussion of shareware liscense agreements seems to assume that people <<actually read the request for payment frequently buried in a file somewhere. <<I don't see how these requests can be considered legally binding since there <<is no way to insure that a person has even seen them. < <Absolutely false. Just because you didn't read the request to pay <doesn't mean you don't _have_ to pay. If you go into a barber shop and <sit down, and get your hair cut, you can't complain that you "never <read" the sign with the prices posted, you are certainly obligated to <pay. < < "In the absence of a contrary statute, acceptance of goods < or services by a person who did not request them is an < expression of assent to contract if that person knew < or reasonably should have known that the goods or services < were offered with the expectation of compensation". < (Chem-Teonix Laboratories, Inc., v. Solocast Company, 5 Conn. < Cir. 533, 258 A.2d 110 (1968)). I have no idea if the above citation has any bearing at all on shareware. However, it says in part: "knew or reasonably should have known that the goods or services were offered with the expectation of compensation" This is my point. Without reading some document how do you know it isn't FREE. Why search for a request for payment? --- Tom Beattie att!hoqaa!twb t.w.beattie@att.com
las) (03/29/89)
In article <600@marob.MASA.COM> manes@marob.MASA.COM (Steve Manes) writes: }From article <2214@hoqax.UUCP>, by twb@hoqax.UUCP (T.W. Beattie): }} The discussion of shareware liscense agreements seems to assume that people }} actually read the request for payment frequently buried in a file somewhere. }} I don't see how these requests can be considered legally binding since there }} is no way to insure that a person has even seen them. }A copyright is a copyright. Buried in the fine print of a }commercially-distributed phonograph record, CD or prerecorded cassette }is the statement "Unauthorized duplication is a violation of applicable }laws". Most people won't even see/bother to read this either. }Nevertheless, record and tape piracy is a prosecutable criminal offense. This reminds me of a short film seen on Showtime last year. It was called something like _Video Pirates_ and portrayed some cartoon pirates "pirating" video tapes. When the FBI WARNING! appears at the beginning of the tape, the cartoon pirates say: "Oooooohhhhhh! We're scared!" :-) (Note the smiley, I'm not advocating piracy here, but trumpting dire threats and metaphorically pounding one's chest does not deal with the real issues). }All that's needed is the statement. If it's legal, it's enforceable. O.K. Publish your fabulous XYZZY program as shareware. Then locate some individual who has not paid the mandatory registration fee (oh what the heck, make a list of everyone you can find). Now go to your nearby U.S. Attorney and demand that they be prosecuted. You may be 1) laughed at, 2) receive an explanation about the necessity of measuring their annual budget against the "importance" of the crime, 3) given some kind of run-around, or 4) something else. What you will surely not get is the action you request. Of course, you can still sue them. So go to your attorney. Of course you remembered to register your copyright first so that you can recover treble damages. Tell your attorney that you want to sue. Your attorney will tell you that you can't afford it. The potential recovery is too small to even pay your attorney for his/her time. You might even lose for various reasons. I'm still not advocating piracy, but I think the hardline approach gets nowhere. It might even plausibly be argued that an individual might not have understood the provisions of the liscense or even that the liscense requirements as applied to an individual who received your software essentially for free are not as absolute as you say. You might not win the argument, but you can make the argument - anything is up for argu- ment in the United States' system of jurisprudence though many things are so well established by precedent that you'd be wasting your time. }If you don't bother to look for a copyright notice, does that imply your }right to repackage the program, change the name and resell it? Ah well! Now you may begin to get the cooperation of the U.S. Attorney and the interest of your own attorney - maybe. Stealing and reselling or even redistributing for free are much better defined in precedent. The still recent confrontation between SEA and PKWARE is a pretty good example. Phil Katz became willing to settle after SEA received evidence that PKWARE was selling/distributing products infringing SEA's copy- rights. }} Some software display a request for payment on a start-up screen. }} I suspect these programs quickly fade into obscurity. }Sure. Like those obscure Shareware programs, PC-WRITE and PROCOMM. Indeed, I should have something so "obscure" to my credit. Repeating - I don't advocate piracy. I advocate paying for worthwhile software and throwing crummy software away, but making unenforcible and possibly invalid threats won't help shareware authors or the net. regards, Larry -- Signed: Larry A. Shurr (att!cbnews!cbema!las or osu-cis!apr!las) Clever signature, Wonderful wit, Outdo the others, Be a big hit! - Burma Shave (With apologies to the real thing. The above represents my views only.)
spolsky-joel@CS.YALE.EDU (Joel Spolsky) (03/29/89)
In article <2232@hoqax.UUCP> you write: >In article <54799@yale-celray.yale.UUCP> spolsky-joel@CS.YALE.EDU (Joel Spolsky) (thats me) writes: >>In article <2214@hoqax.UUCP> twb@hoqax.UUCP (T.W. Beattie) writes: ><< ><<The discussion of shareware liscense agreements seems to assume that people ><<actually read the request for payment frequently buried in a file somewhere. ><<I don't see how these requests can be considered legally binding since there ><<is no way to insure that a person has even seen them. >< ><Absolutely false. Just because you didn't read the request to pay ><doesn't mean you don't _have_ to pay. If you go into a barber shop and ><sit down, and get your hair cut, you can't complain that you "never ><read" the sign with the prices posted, you are certainly obligated to ><pay. >< >< "In the absence of a contrary statute, acceptance of goods >< or services by a person who did not request them is an >< expression of assent to contract if that person knew >< or reasonably should have known that the goods or services >< were offered with the expectation of compensation". >< (Chem-Teonix Laboratories, Inc., v. Solocast Company, 5 Conn. >< Cir. 533, 258 A.2d 110 (1968)). > > >I have no idea if the above citation has any bearing at all on shareware. >However, it says in part: > "knew or reasonably should have known that the goods or services ------------------------------- > were offered with the expectation of compensation" > >This is my point. >Without reading some document how do you know it isn't FREE. tanstaafl. > >Why search for a request for payment? REASONABLY SHOULD HAVE KNOWN. If the goods have value, then US courts WILL assume that you are clever enough to understand that under the Capitalist System you will have to pay. This applies to all kinds of things. Indeed it is almost impossible to actually _give something away_ legally, which is why many things given away are actually officially sold for $1. You can't pretend you 'didn't see' the request for payment because you know as well as I do that it will be plastered all over the screen regularly. But even if you honestly don't see it, maybe your screen was in Kanji mode or something, as a non-half wit you should be able to figure out that pending evidence to the contrary, goods with value WILL require compensation. Now would somebody PLEASE fix the spelling on the Subject: line +----------------+----------------------------------------------------------+ | Joel Spolsky | bitnet: spolsky@yalecs.bitnet uucp: ...!yale!spolsky | | | internet: spolsky@cs.yale.edu voicenet: 203-436-1483 | +----------------+----------------------------------------------------------+ #include <disclaimer.h>
manes@marob.MASA.COM (Steve Manes) (04/01/89)
From article <5179@cbnews.ATT.COM>, by cbema!las@cbnews.ATT.COM (cbema!las): > O.K. Publish your fabulous XYZZY program as shareware. Then locate some > individual who has not paid the mandatory registration fee (oh what the heck, > make a list of everyone you can find). Now go to your nearby U.S. Attorney > and demand that they be prosecuted. You may be 1) laughed at, 2) receive > an explanation about the necessity of measuring their annual budget against > the "importance" of the crime, 3) given some kind of run-around, or 4) > something else. What you will surely not get is the action you request. Of course not but that's irrelevant to what we were addressing. You said, in so many words, that a user who fails to read the license and warranty is free to legally assume whatever rights he wants concerning the software. That is clearly not the case. A copyright is a copyright. The mode of distribution doesn't impeach the author's rights. That can only be done explicitly by the author. It's doubtful that a rich commercial software company would go after a lone pirate either. However, ASP >has< taken Shareware vendors who've violated member copyrights to court. Most recently, ASP stomped a distributor in Holland who intentionally misrepresented Shareware as public domain. -- Steve Manes Roxy Recorders, Inc. Magpie-HQ BBS UUCP : {rutgers|cmcl2}!hombre!magpie!manes (212)420-0527 Smail: manes@MASA.COM