Posted on 05/18/2005 10:30:09 AM PDT by Mike Bates
Oh? Let's look at one. The EULA for this machine contains the following clause:
10. EXPORT RESTRICTIONS. Export-Restricted Encryption. If the Product is identified as "North America Only Version," the following terms apply: The Product contains strong encryption and cannot be exported outside of the United States (including Puerto Rico, Guam and all other territories, dependencies and possessions of the United States) or Canada without a U.S. Commerce Department export license or an applicable license exception. You agree that you will not directly or indirectly export or re-export the Product (or portions thereof), other than to Canada, without first obtaining an export license or determining that a license exception is applicable. For additional information see http://www.microsoft.com/exporting/.
So, I take this "North America Only Version" with me to Cuba, and I don't bother with an export license, nor do I determine if a license exception is applicable. I have now violated the license. On what grounds will Microsoft invalidate my license? Hint: I haven't committed copyright violations here - copyright law says nothing about exporting to Cuba.
In fact, I've breached the contract that this clause is a part of. Microsoft can invalidate my license, even though I didn't violate its copyright, because that EULA is a legal, binding contract between me and Microsoft - a contract I have breached, which allows them to terminate my license for no living up to my end of the deal.
Sorry, it's not all about copyright violations. Your license is revocable even if you don't violate Microsoft's copyright, precisely because this is a license contract, not simply a finger-wagging speech about "don't violate our copyrights".
Let's say I'm a very poor guy who goes to the library and looks up some books in the catalog, running Windows -- Windows is my only choice, that library is my only source of books. I play with the system and violate the EULA ("End User License Agreement", and I'm an end-user).
No, you're not. The library is the end user, not you - they paid the license fee and they have the license, not you.
All of the cases are for making songs available for upload. None are for downloading. How the songs made it to the shared folder is irrelevant.
It is like recording off the radio.
Also, people often download songs because it's "fun," not because they want the particular song for any reason. Just the act of downloading is a fascinating thing, especially if you've never done it before.
In my case, I have fewer than 100 songs I have downloaded and kept, and almost all of them are songs I already own on vinyl or CD and just wanted quick copies to practice for my cover band.
The remainder I downloaded and ended up never listening to, or wanted to sample the work before buying. But I have yet to buy a cd after sampling. I HAVE bought concert DVD's after sampling mp3's.
If I were to go to court for "downloading," I think my motives would exhonerate me.
For crying out loud, it is just music. And music is universal. It is living art.
Well you've breached Federal export laws by taking encryption technology into a stinkin' Commie country. You think MS put that in their EULA just to please themselves or to warn you that you could be strung up like the Rosenbergs. Come to think of it I can think of quite a few Clinton contributors that have done far worse than Rosenbergs. Hell it was only radar technology. Not rocket science.
Unless the license agreement specifies such, merely violating export laws would not necessarily be grounds to terminate your license. Obviously, losing your Windows license is probably the least of your problems, but it's one of the terms of the agreement ;)
No problem. I'm always willing to help FReepers :)
That which is enforceable by law, is not contractual.. that is not governed by contract law. The finer points of licenses versus contracts in which a license actually becomes a negotiable instrument or contract are in the provisions not protected by law. Your example, the export provisions are not contractual because they are federal law. The five copyrights afforded to authors are not contractual because they are protected by federal law. Those may be granted or refused under any terms the author wishes, and are governed by federal law not contractual law.
Revocation of software licenses for export violations is certainly not a matter of federal law.
Actually yes it is. Microsoft cannot grant a software license to anyone living in those countries because of the federal export law. Like I said it's a very poor example if you are attempting to show a provision of a license entails a contractual obligation. Federal law dictates the bounds of contract law. An analogy would be if we signed a contract agreeing that I'd pay you $5 to whack a federal judge. I simply cannot make that offer and neither can you accept it and consider it a valid contract under law. Neither can Microsoft allow it in their licenses. They'd probably be liable if their license was silent on it.
If the license is null merely by virtue of me setting foot in Cuba, then there's no reason for MS to spell it out, and they certainly won't get in trouble for not doing so - they don't have to revoke the license, the law does it for them. If I invite my landlord over and kill him, then roast him in my oven for fifteen minutes per pound, fat side up, then my lease is probably going to be voided, despite the fact that the rental contract doesn't have an explicit landlord-murder clause.
Oh sure there's no reason whatsoever to suspect that a vendor of an export controlled product wouldn't get in trouble not informing the purchaser that product contained export regulated parts..... /sarc
Inform, sure, but there's no need to make the license contingent upon it, any more than there's a need to make my lease contingent upon not killing the landlord - if the loss of licensure is a statutory matter, you don't need to make it a contractual remedy.
Who are you depriving use of software?
No, it does not. Once again, proving that you don't even have the basic concepts of right and wrong.
Im sorry where did he say that its ok to use software that you do not have a license to use?
"then there's no reason for MS to spell it out"
The law requires it?
Not that I'm aware of. Might be worth checking out, though.
Yes you have. The moment you took it outside of the allowed zone, you weren't in compliance with the license and were therefore using another's copyrighted work without a valid license, which is copyright infringement. Of course your main worry will probably be with the State Department for violating ITAR.
It's the same with the GPL. I can copy and distribute as much as I want as long as I follow the terms of the license. I am committing copyright infringement as soon as I violate those distribution terms. In the US, Cisco has been busted for copyright infringement for using Linux in its routers without following the terms of the license. In Europe, some router manufacturer was busted for using netfilter/iptables without following the terms of the license. Note, they were generally allowed to distribute the software, but they did not follow the terms of the license in doing so, and were therefore infinging on the authors' copyrights.
Sorry, it's not all about copyright violations.
Sorry, unless I sign a contract with someone, that's all it's about. I admit some licenses get very contract-like, which may put them into the category of quasi-contracts, but they aren't contracts in the normal sense.
But if it's a contract, we can have fun. Print out your EULA, cross-out anything you don't like, and mail it back to Microsoft with a note saying you'll consider the contract amendments accepted if you don't hear back from them in a reasonable amount of time. Remember, contracts are by definition negotiable. If you hear back from Microsoft, they'll probably say it's a license and therefore non-negotiable. If you don't and use Windows according to your newly amended contract, you'll be in court with Microsoft with them claiming it is not a contract that can be negotiated, but a license. If they agree it's a contract, then we can really have fun and have the contract broken because it's so one-sided.
No, you're not. The library is the end user, not you - they paid the license fee and they have the license, not you.
No, you are the end-user at that point. The license does not grant the library the authority to delegate the license to you when you use it. Under your logic, nobody but the purchaser could use the system. You're the user, you accept the EULA.
You're confusing cause and effect. My question was "On what grounds will Microsoft invalidate my license?" And the answer is not because I've violated the copyright - I haven't, yet - but because I've failed to abide by the provisions of the license agreement. Then, after my license is invalidated, if I continue using the software, then and only then would I be violating copyright by using it without a license. It's not a copyright violation to land in Cuba, it's a license agreement violation. The copyright violation comes about after the license is terminated for failure to abide.
Here in Thailand it is difficult to find the real licensed product even if you are inclined to buy it. It is not because it is not available but because no one is going to spend that much money to buy it. The average wage here is very low and purchasing a $100 piece of software, or even $50, is simply out of the question. It is a matter of economics. Food comes before video games. If someone can buy a pirate CD for about $4 with all the software they want, that is what they are going to buy. The only way a licensed version is going to be bought is if the price is low enough and there are enough bonuses to make it worth it. Arguing what is right and wrong has no meaning.
That's your conceptual problem. Microsoft doesn't have to do anything.
Let's start with the basics. You do not have the right to use or distribute anyone's copyrighted software. The only way to do that without infringing is to obtain a license. That license has terms. Those terms specify what you can do with the software. IOW, they specify what actions you can take without infringing on the author's copyright. Any action you take that is not allowed by the license is by default a copyright infringement.
For example, the BitKeeper license specifies that you cannot use it to write another CM system. The moment a person starts working on a CM system using BitKeeper, that person is infringing on the copyright of the author of BitKeeper because he is using the software in a way not licensed by the author.
Another example, distribution of nmap is allowed under the GPL. I can distribute it under the terms of the GPL as long as I abide by the tems. But if I make a change to nmap and distribute it without also providing the source code, I am automatically infringing on Fyodor's copyright.
No, you're still confusing "license", which is simply permission to do something, with "license agreement", which are the terms by which that permission is granted to you. A license agreement can be as simple as giving you carte blanche to do anything you like with my software, no questions asked, or it can have other conditions attached to it. And the point to the agreement is that I can enforce those terms by spelling out the conditions under which my grant of license to you can be revoked by me. This notion that you have that "anything that violates the license agreement is a copyright violation" is simply nonsense. If I terminate your license for export violations, and you immediately stop using the software, you never ever violated my copyright. Never. Not once. You've simply, I hate to say, invented this notion that license violations and copyright violations are one and the same.
IOW, they specify what actions you can take without infringing on the author's copyright.
No, that's absolute nonsense. The license agreement specifies the terms under which you may and may not use the software. If you use BitKeeper to write another CM system, you've violated the license for BK, but you have most assuredly not violated BK's copyright. Once that license is terminated for such a violation, any continued use would be a copyright violation, however.
It's simply not the case that copyright violations are the only possible license violations - you can violate the terms of a license in a myriad of ways that don't invoke copyright at all. If my license to you says that you can only use my software on alternate Tuesdays, and I catch you using it on a Thursday, you've violated the license, but copyright law is absolutely silent on particular days of the week when copyrighted works may be used or not used - that is purely a contractual obligation on your part, not a matter of copyright law.
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