[comp.binaries.ibm.pc.d] Shareware liscenses

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