From: William J Poser (email@example.com)
Date: Mon Sep 17 2007 - 18:20:39 CDT
Hans Aberg wrote:
> If there is a valid license entered, which pretty much requires that
>there is a paper contract signed before the time of the product
>transfer, which is rarely done.
In the US at least I don't think that this is exactly true.
If a work is subject to copyright, the copyright comes into
existence when the work is created, and distribution of the
work is limited by copyright law. In the absence of a license,
no one other than the holder of the copyright may distribute
or reproduce the work (except within the limitations of Fair Use).
It is only the receipt of a license that entitles someone other
than the copyright holder to distribute or reproduce the work.
Furthermore, the granting of a license is unilateral, unlike
the formation of a contract, which requires agreement by both parties.
This is why the GPL works. In the absence of a license, you have
no right to do anything with the software. Your ability to do anything
with it arises from your acceptance of the license, which therefore
governs what you may do.
The reason that there is an issue as to the validity of licenses
such as the EULAs of much proprietary software is that the
purchaser does not have the opportunity to accept or reject
the license until after the sale. If the purchaser is made
aware of the license conditions prior to the sale, so that
he can choose to make the purchase on those terms or not
to make the purchase, no explicit agreement, oral or written,
is necessary. That is why there is controversy over the
EULAs of boxed software sold at retail but not over bulk
licensing to businesses. If, say, Microsoft licenses 1,000
copies of MS Word to a company, the company knows the
terms when they make the deal, which arguably is not the
case when someone buys a copy in a retail store and is only
asked to agree to the EULA on installing the software.
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