From: Hans Aberg (haberg@math.su.se)
Date: Mon Sep 17 2007 - 19:46:19 CDT
On 18 Sep 2007, at 01:20, William J Poser 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 copyright holder has the distribution rights, but not the rights
of the indivudal rights, as long as there is no clash.
> 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.
That is only a part of the problems:
A license is a contract that must be entered voluntarily for each
purchase, and the copyright holder must be able to demonstrate it,
specifically the exact legal person who did it.
So if no contract has been entered at the time of purchase, copyright
law applies, and the purchaser owns the copy. This is difficult from
the legal point of view. If, for example, one clicks the "not agree"
button and the software does not install, then the contract isn't
voluntary, and therefore not legally valid.
And the contract is not entered with the buyer, but with the one who
agrees. How do you know who that is, if the buyer just doesn't bother
to keep track of it, that is, the one who opens the box or clicks the
button or whatever? If you buy something, and the manufacturer enters
a license with your neighbor over what you already own, would you
consider that license to be valid? It is a contract between to
parties, non of which has any claim on the property.
So the purchaser just needs to ask the copyright holder to show proof
of that a license has been entered. Unless there is a written paper
contract, that is very hard to prove.
In addition, software often varies in the the serial number, so how
would you know that the license agreement is the same for every box,
except for the claim of the manufacturer? - The purchaser must open
the box to verify it. The judge in the case that this argument refers
to failed to consider that possibility. And in that case, the
purchaser agreed he had made the action that was viewed to confirm
the license agreement in the US - he should not have done that,
instead asking the copyright holder to prove that he had taken that
action.
I think the above about contract signing has been known since the
days of the ancient Romans. The computer manufacturers, wanting the
convenience of a license but not the bother of contract signing
imagined they had found a way around it.
Hans Åberg.
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