davidbrierley@lynx.northeastern.edu (01/04/90)
Recent discussion of the AIDS disk trojan has mentioned licenses that
come with software. I thought it relevant to post an excerpt (without
permission) of _How to Copyright Software_ by attorney M.J. Salone (3rd ed.
1989 Nolo Press, pages 12/2 - 12/3):
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Software publishers often attempt to use a so-called "shrink-wrap
license" for the purpose of restricting rights of the purchaser. If you've
bought software over the counter, you'll be familiar with the sort of license
agreement that's printed on, or enclosed in, the packaging that says something
to the effect that if you break the package seal, you've agreed to the terms of
the license, which limits your rights to use the software. One common
restriction prohibits modifying the software in any way, even for your own use.
A federal court of appeals struck down a Louisiana statute that authorized this
type of provision on the ground the statute impermissibly conflicted with the
U.S. Copyright Act.*
Another way software publishers try to restrict the use of over-the-
counter software is to provide an "up-date" or "warranty" card with the
software. If you sign it, you not only qualify for the warranty
protection or update service offered, but simultaneously agree to the
terms of the "Software Licensing Agreement" included with the package.
This sort of agreement is not likely to be binding in a court of law.
The warranty offered is often required by law anyway, and the
"updates" are commonly not really updates, but error corrections which,
if uncorrected, would justify your requesting a full refund, or perhaps
even suing the publisher for negligence.
* Vault Corp. v. Quaid Software, 847 F.2d 255 (5th Cir. 1988).
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I wonder how many people know that they may be entitled to FREE
bug fixes or a refund when the software they buy is defective (i.e.
when the product does not perform as advertised).
In addition to the fact that the licenses may conflict with other
legislation I'd like to point out that many of those "agreements" are
probably not enforceable anyway, since the agreement is inside the box -
prohibiting you from reading it before allegedly agreeing to it.
David R. Brierley
davidbrierley@lynx.northeastern.edu