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> software is licensed (not sold) What does that mean? Say that I have, in my hand, a copy of some software. I bought it at a store, for money. I did not si

by teddyh 4y ago

> software is licensed (not sold) What does that mean? Say that I have, in my hand, a copy of some software. I bought it at a store, for money. I did not sign anything (or even give my name). What law obliges me to follow the EULA? It can’t be contract law, since I did not sign anything. It can’t be copyright law, since I’m not making a copy of the software (or making a public performance, etc.). So what is it?

mrpippy 4y ago
Some kind of “by opening this software you agree to the license terms contained within” notice was pretty common on the bag of floppies or on a sticker on the jewel case, etc. And of course, the EULA would be part of the setup process.
- teddyh 4y ago
  > the EULA would be part of the setup process. I won’t necessarily agree to (or even see that display of) a EULA if all I do is reverse engineer the software.
cmcaleer 4y ago
The software company will argue that you made a shrinkwrap agreement (where the term clickwrap actually comes from), where the packaging says by opening the packaging or using the software, you've implicitly agreed to the terms of the EULA. It's not super well tested in the courts and opinion is split on it, with rulings either way. https://en.wikipedia.org/wiki/Shrinkwrap_(contract_law) https://en.wikipedia.org/wiki/Shrinkwrap_(contract_law)
- teddyh 4y ago
  That seems… less than solid. Do other industries do this as well? “By opening this CD jewel case, you agree to only play this CD as directed by the following rules”? “By turning the key in the ignition of this vehicle, you agree to be bound to the terms of service”? “Every time you press the start button on this coffee maker, you agree to extend your SuperCoffee™ subscription to one year in the future”?
  - bentley 4y ago
    You are not allowed to look at my copyrighted display of Christmas lights on the outside of my house without first paying my stated price.
    - teddyh 4y ago
      https://en.wikipedia.org/w/index.php?title=Eiffel_Tower&oldid=1150170477#Illumination_copyright https://en.wikipedia.org/w/index.php?title=Eiffel_Tower&oldi...
  - TeMPOraL 4y ago
    > “By opening this CD jewel case, you agree to only play this CD as directed by the following rules”? Sort of? To my understanding, music and movies are kind of halfway to "licensed, not sold" either.
    - teddyh 4y ago
      Oh, I’m sure they would like you to think so.
- idonotknowwhy 4y ago
  So buying it used, with no box, already setup by the seller means not agreeing to anything
sowbug 4y ago
You bought a physical box. It's yours forever, or to sell. The box contains a copy of the software. But copyright law prevents you from making a copy of it, including the copy that your computer would need to make to run the software. The copyright owner generally agrees to enter into a certain contract with whoever buys the box. Typically, the copyright owner specifies what the contract terms are, and it's usually non-negotiable. (The non-negotiability, making it a contract of adhesion, is the strongest argument against so-called "shrinkwrap" or "clickwrap" agreements. But that leaves the box owner with just a box, and no permission to use the software.) You might be under the misunderstanding that contracts need to be signed to be effective. Nope. There are lots of ways to accept a contract offer, most often by "implied acceptance," where the parties just start doing what the contract says. In your case, that's probably by opening the box and sticking the physical media in your computer (or otherwise running the software). Similar to going to an amusement park whose ticket has a bunch of fine print on it, or working as an employee at a company for a while without ever quite getting around to signing the employment agreement they gave you.
- EMIRELADERO 4y ago
  > The box contains a copy of the software. But copyright law prevents you from making a copy of it, including the copy that your computer would need to make to run the software. Not so fast! 17 U.S.C § 117 - Limitations on exclusive rights: Computer programs (a)Making of Additional Copy or Adaptation by Owner of Copy.— Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1)that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2)that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
- teddyh 4y ago
  > But copyright law prevents you from making a copy of it, including the copy that your computer would need to make to run the software. I am not convinced of that. If I hold a book up to a mirror, am I breaking copyright law? If I read a book aloud to a child, am I breaking copyright law? My retinas will contain an actual physical image of the book whenever I look at the book. Are my retinas breaking copyright law? > You might be under the misunderstanding that contracts need to be signed to be effective. Nope. I am not under that misapprehension, but I do believe that a contract must be explicitly agreed to in order to be valid. And in my example, I did not agree to anything when purchasing software in a store; I gave them money, they gave me a box.

by teddyh 4y ago

mrpippy 4y ago

Some kind of “by opening this software you agree to the license terms contained within” notice was pretty common on the bag of floppies or on a sticker on the jewel case, etc. And of course, the EULA would be part of the setup process.

teddyh 4y ago
> the EULA would be part of the setup process. I won’t necessarily agree to (or even see that display of) a EULA if all I do is reverse engineer the software.

cmcaleer 4y ago

The software company will argue that you made a shrinkwrap agreement (where the term clickwrap actually comes from), where the packaging says by opening the packaging or using the software, you've implicitly agreed to the terms of the EULA. It's not super well tested in the courts and opinion is split on it, with rulings either way. https://en.wikipedia.org/wiki/Shrinkwrap_(contract_law) https://en.wikipedia.org/wiki/Shrinkwrap_(contract_law)

teddyh 4y ago
That seems… less than solid. Do other industries do this as well? “By opening this CD jewel case, you agree to only play this CD as directed by the following rules”? “By turning the key in the ignition of this vehicle, you agree to be bound to the terms of service”? “Every time you press the start button on this coffee maker, you agree to extend your SuperCoffee™ subscription to one year in the future”?
- bentley 4y ago
  You are not allowed to look at my copyrighted display of Christmas lights on the outside of my house without first paying my stated price.
  - teddyh 4y ago
    https://en.wikipedia.org/w/index.php?title=Eiffel_Tower&oldid=1150170477#Illumination_copyright https://en.wikipedia.org/w/index.php?title=Eiffel_Tower&oldi...
- TeMPOraL 4y ago
  > “By opening this CD jewel case, you agree to only play this CD as directed by the following rules”? Sort of? To my understanding, music and movies are kind of halfway to "licensed, not sold" either.
  - teddyh 4y ago
    Oh, I’m sure they would like you to think so.
idonotknowwhy 4y ago
So buying it used, with no box, already setup by the seller means not agreeing to anything

sowbug 4y ago

You bought a physical box. It's yours forever, or to sell. The box contains a copy of the software. But copyright law prevents you from making a copy of it, including the copy that your computer would need to make to run the software. The copyright owner generally agrees to enter into a certain contract with whoever buys the box. Typically, the copyright owner specifies what the contract terms are, and it's usually non-negotiable. (The non-negotiability, making it a contract of adhesion, is the strongest argument against so-called "shrinkwrap" or "clickwrap" agreements. But that leaves the box owner with just a box, and no permission to use the software.) You might be under the misunderstanding that contracts need to be signed to be effective. Nope. There are lots of ways to accept a contract offer, most often by "implied acceptance," where the parties just start doing what the contract says. In your case, that's probably by opening the box and sticking the physical media in your computer (or otherwise running the software). Similar to going to an amusement park whose ticket has a bunch of fine print on it, or working as an employee at a company for a while without ever quite getting around to signing the employment agreement they gave you.

EMIRELADERO 4y ago
> The box contains a copy of the software. But copyright law prevents you from making a copy of it, including the copy that your computer would need to make to run the software. Not so fast! 17 U.S.C § 117 - Limitations on exclusive rights: Computer programs (a)Making of Additional Copy or Adaptation by Owner of Copy.— Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1)that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2)that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
teddyh 4y ago
> But copyright law prevents you from making a copy of it, including the copy that your computer would need to make to run the software. I am not convinced of that. If I hold a book up to a mirror, am I breaking copyright law? If I read a book aloud to a child, am I breaking copyright law? My retinas will contain an actual physical image of the book whenever I look at the book. Are my retinas breaking copyright law? > You might be under the misunderstanding that contracts need to be signed to be effective. Nope. I am not under that misapprehension, but I do believe that a contract must be explicitly agreed to in order to be valid. And in my example, I did not agree to anything when purchasing software in a store; I gave them money, they gave me a box.