Software license
From Free net encyclopedia
A software license is a legal agreement which may take the form of a proprietary or gratuitous license as well as a memorandum of contract between a producer and a user of computer software. A user may be any legal entity or an "end user", in which case the software license is — sometimes called an End User License Agreement (EULA) — that specifies the perimeters of the permission granted by the owner to the user.
If the software license is between the software owner (licensor or producer) and a business or government entity, it should be regarded as a specialized form of contract with many terms (clauses) unique to the license and the nature of the software being licensed.
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EULAs and shrink-wrapping
Most end user license agreements (EULAs) accompany shrink wrapped software that is presented to a user sometimes on paper or more usually electronically, during the installation procedure. The user has the choice of accepting or rejecting the agreement. The installation of the software is conditional to the user accepting the agreement and thereby agreeing to abide by its terms.
Some computer companies view the EULAs more as an elaborate liability disclaimer than a real contract. It is not uncommon for a user to be unable to read the license before proceeding with starting up a computer they have just bought (which the computer might require on an on-screen message), because no printed copy of the license is included. Users almost invariably click on "Accept" without reading the license.
EULAs often can contain very restrictive terms that are surprising. For example, the version 7 of a popular image-viewing application ACDSee prohibits its use for viewing pornographic materials in the EULA (section 3.4 - Use Restrictions).
It is unclear whether EULA licenses are enforceable in the United States (see shrink wrap contracts).
Copyright
The amendment of the United States Code, Chapter 17, codified as 17 USC 117, permits the owner of a copy of a computer program to make copies necessary for the use or backup of a computer program.
Until 117 was enacted, the very act of copying computer software from a storage device into temporary memory may have been prohibited in the United States. Typically, a proprietary software license will interpret 117 in plain English. For example: "You may use the software on one computer, and you may make an additional copy to be used only for backup or archival purposes. You may not otherwise copy, modify [...] the software."
However, a growing number of such licenses are using a loophole in 117 that exploits a distinction between the "owner" of a copy and one who merely "possesses" a copy by purporting to create a rental agreement in which the publisher of the software retains ownership of the medium on which the software is shipped.
Product liability
Most licenses for software sold at retail disclaim (as far as local laws permit) any warranty on the performance of the software and limit liability for any damages to the purchase price of the software.
Patent
Some countries, such as the United States, allow the patenting of a generic computer that runs a novel algorithm. A software license may grant limited non-exclusive rights under applicable patents that the publisher holds.
Trade secret
Some software licenses prohibit users from reverse engineering the software. Publishers claim to use this to protect their trade secrets embodied in the software, but some have a different motive, namely making it much more difficult to create software that interoperates with the licensed software.
Other licenses prohibit users from releasing data on the performance of the software.
Access to network services
Some proprietary software acts as a client for a network application and requires users to give up rights in consideration for access to a service. For example, the license of versions 4.0 and later of the AOL Instant Messenger client software prohibit users who have installed the software from ever accessing the service through third-party software such as Trillian, Gaim, or Everybuddy.
Enforceability
The forceability of an EULA depends on several factors, one of them being the court that the case is heard in. Most courts that have addressed the validity of the shrinkwrap license have found them to be invalid, characterizing them as contracts of adhesion, unconscionable, and/or unacceptable pursuant to the U.C.C. —see, for instance, Step-Saver Data Systems, Inc. v. Wyse Technology (939 F.2d 91), Vault Corp. v. Quaid Software Ltd. (at harvard.edu) and Rich, Mass Market Software and the Shrinkwrap License (23 Colo. Law 1321.17). A minority of courts have determined that the shrinkwrap license is valid and enforceable: see ProCD, Inc. v. Zeidenberg (at findlaw.com), Microsoft v. Harmony Computers (846 F. Supp. 208, 212, E.D.N.Y. 1994), Novell v. Network Trade Center (at harvard.edu), and Arizona Cartridge Remanufacturers Association Inc. v. Lexmark International Inc. may have some bearing as well.
The 7th Circuit and 8th Circuit subscribe to the "license" and "not sold" arguments, while most other circuits do not. In addition, the contracts' enforceability depends on whether the state has passed Uniform Computer Information Transactions Act (UCITA) or Anti-UCITA (UCITA Bomb Shelter) laws. In Anti-UCITA states, the Uniform Commercial Code (UCC) has been amended to either specifically define software as a good (thus making it fall under the UCC), or to disallow contracts which specify that the terms of contract are subject to the laws of a state that's passed UCITA.
Recently, publishers have begun to encrypt their software packages to make it impossible for a user to install the software without agreeing to the license or violating the Digital Millennium Copyright Act (DMCA) and foreign counterparts.
The DMCA specifically provides for reverse engineering of software for interoperability purposes, so there was some controversy as to whether software license clauses which restrict this are enforceable. The case of Blizzard v. BnetD (at eff.org) is an illustration of this controversy.
Abandonware
Abandonware is computer software which is no longer being sold or supported by its copyright holder. Alternatively, the term is also used for software which is still available, but on which further support and development has been deliberately discontinued. Although copyright and a licence may still exist, it is no longer actively protected, represented and supported.
See also
External links
- Criticism of EULAs from the Electronic Frontier Foundation
- [1] Javacool Software EULAlyzer
- EULAscan - Community review of EULAs
- EULA Library (on GripeWiki)
- - RTF EULA, article on odd EULA clausesde:Endbenutzer-Lizenzvertrag
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