Re: Licencing

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From: Ian Merrithew (optimus2861_at_nooospammm.com)
Date: 05/15/04 

Date: Sat, 15 May 2004 16:01:43 GMT

On Fri, 14 May 2004 16:52:57 -0600, Bruce Chambers wrote:

> You really should try reading the actual law for yourself, rather than
> relying upon Kurttrail's amateurishly crude, deliberate
> misinterpretations and distortions.

I have, and I don't (and the last time I quoted law at you, you spouted
off about needing to be a lawyer to give "legal advice" in a public
forum, remember? No, you probably don't -- but your long-standing
assertion that breaking the one computer-one copy term violated copyright
law disappeared from your copy-and-paste replies shortly thereafter; did
you ever fix the grammar?). Rather than insinuate that those who don't
share your opinions must not have read the law, or that those who have
done so are "amateurishly crude", you could try constructing an actual
counter-argument, like Alex did here:

On Sat, 15 May 2004 14:26:40 +0100, Alex Nichol wrote:

> But the underlying principle is that a copyright product is made
> available by the copyright owner on *his* terms. And you accept them or
> do not take the product.

This, however, does not mention fair use, and does not mention the
statutory rights held by owners of copies of copyrighted works. It's the
start of an argument, but not complete. Or this:

> "The problem with your quote is that it does not include the words or to
> their effect - '.... unless otherwise provided or agreed'. " If you
> effect an acceptance of the EULA , acknowledging that you have read it
> (even if in fact you have not), then the terms 'provided or agreed' are
> those set out in the EULA.

At least now we boil it down to whether or not clicking on "I Accept"
during the installation of the software forms a binding contract -- I
would argue that it does not, for at least two reasons:

1) You have no option. Under copyright law (Can. & USA), I have the right
to install & use the software without having to agree to any additional
terms. The installer doesn't give me any way to exercise that right
without agreeing to additional terms (if I click "I Do Not Accept" the
installer exits) -- that's coercion.

2) No consideration. The right to install and use my copy of software is
mine under copyright law, not Microsoft's. I can give up that right to
Microsoft in a contract, but Microsoft would have to give me something
back in exchange. The EULA doesn't give me a thing. There's no "meeting
of the minds" here -- no contract.

We've also got the pesky little anonymity problem, but I'll leave that
aside.

And even if it is a binding contract, kurt is correct in saying that
breaking it is not illegal, and Microsoft would have to sue you in a court
of law to attempt to enforce its terms. Have they ever done so to a
home user for private noncommercial use? No. 

-- 
Ian Merrithew - ADM Systems Engineering
ian.merrithew "at" ieee.org

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