Posted on 05/18/2005 10:30:09 AM PDT by Mike Bates
Subject to the terms of the license agreement, which is a contract.
BTW, the license exists and is in force even if you don't agree to the terms.
I think you're confusing having a license with not having a license. If you do not agree to the terms of the license agreement, you don't have a license to begin with, so to say the terms are "in force" makes no sense at all. If you don't have a license, you're not entitled to use the software, so if you use the software anyway, you're receiving services to which you are not entitled either.
Ummm, what? The sale of a license to you is itself a contract to make software available for your use in exchange for your money. Just because you don't sign a piece of paper doesn't make that agreement any less of a contract.
Plus, contracts have to have as part of them a promise of performance, and all software licenses I've read explicitly deny a promise of performance.
No, no, no. You've confused a warranty of merchantability - a promise that something is fit for some particular purpose - with the promise to deliver the software to you and make it available for your use. That's their end of the bargain - what they disclaim is any implied warranty of merchantability. The promise of performance is that they agree to make the software available for you to use, and you agree to give them money - the merchantability disclaimer is merely them saying "we'll let you use it, and if it works for you, great, but if not, it's not our problem", but that's not disclaiming any and all responsibility for anything on their part. They still have to provide you with the software, they just disclaim any liability if it doesn't perform as advertised.
I agree with you. General_re is the one who wrote that.
As for the license thing, I was referring to your example way back up the thread where you set up a scenario in which you didn't agree with the license agreement but you clicked on "I Agree" anyway so you could use the software without paying full price. If you're using the software in non-compliance with the license agreement, even if you disagree with the license agreement, it's still in force. That was my meaning.
You break contracts, and you can't break a contract you never accepted. You don't infringe on a license agreement, you infringe on the copyright of the copyright holder by using the software without permission. The only thing that grants you that permission is the license.
You don't need to see or agree to the license to be liable for copyright infringement. I guarantee you Windows is registered (and before five years after creation), and copyrights are stated on the box and during the install, so there is no "I didn't know" defense. The reason for the click-wrap licenses are that most are so insanely restrictive in ways that people would have never thought. Companies want to have something to say you knew you couldn't do something prohibited in the license that any sane person would think is normally allowable.
As far as contracts, my company has one with Microsoft. As part of that negotiated contract, we get support, services, upgrades, and licenses. That negotiated contract says we have license to run X copies of Windows XP. If we run more than X copies, then we would probably be hit with a suit for both copyright infringement and breach of contract. Our contract includes those things necessary for something to be a contract:
No, it's simply a license that I bought. Likewise, with the GPL, there is no contract. The GPL is simply that which allows me to use another's coyprighted work where before there was no allowance. The Windows XP license has terms in it that would likely be declared invalid if the license were interpreted as a contract.
"It isn't "theft." "
It isn't? Hmmmm, you are in possession of soemthing that you did not pay for, but, somehow, that isn't theft?
"Theft includes depriving the legitimate owner of a product of its use--not just taking it."
No, it does not. Once again, proving that you don't even have the basic concepts of right and wrong.
And the way you get a license is through the terms of the contract called a "license agreement".
You don't need to see or agree to the license to be liable for copyright infringement.
I understand that, but if you'll scroll back up, the thing that kicked this discussion off is the contention that pirating software is essentially the same as theft of services, so "copyright infringement" doesn't enter into it.
Your average guy who pirates a copy of XP is guilty of copyright infringement, not breach of contract.
You're still hopelessly confused here. If I go to the store and buy XP, I have a contract with Microsoft even though I didn't sign anything. I have:
1) an offer. They offer me a license to use their software.
2) acceptance. As the agreement states, I accept the agreement by my use of the software. If I do not agree, I so indicate by not using the software.
2) a promise to perform. They agree to provide the software to me and allow me to use it. This is the promise of performance they make to me, and it has nothing to do with the warranty of merchantability.
4) consideration. I gave them money in exchange for the license.
5) time when the performance will be made - it's understood that the software will be immediately available to me as soon as I pay.
6) terms and conditions. Read the EULA for said terms and conditions governing the grant of license.
See, if you don't fulfill your end of the bargain, you don't have a license, and the only way to get a license is by abiding by this contract presented to you. If you don't have a license, you have no right to use the software. Therefore, you've stolen the services of the Microsoft corporation, whether the law calls it that or not. You can argue all the live-long day that a EULA isn't a contract, but you better believe the courts don't see it that way.
"Theft--theft is a felony; it is the taking of someone else’s property with the intention of permanently depriving that person of it."
Theft is NOT always a felony, and theft does NOT always means depravation.
Meanwhile RIAA reported 2 billion dollars in lost pirated music based on songs being recorded off the radio.
Same thing basically.
The agreement to buy that license is a contract. You agree to pay money, they agree to give you a license. I'm really not quite sure what you gain by denying this, but you're completely wrong in asserting that contract doesn't enter in anywhere.
What license agreement? By which I mean, suppose I decide that I don't agree with your contract and that I won't abide by it or be bound to it - I didn't read or agree to a EULA when I downloaded my pirate copy of Office, after all. So how can I infringe on a contract I'm not a party to, that I don't agree to? I can't - in fact, in that case, I don't have a contract, and hence I don't have a license to use the software. It's not that I'm "infringing" on the license agreement - I don't have a license agreement, and hence I'm receiving services I'm not entitled to have. IOW, theft of services. QED.
So, according to this scenario, you've gotten ahold of a pirated copy of the software and even though you disagee with the licence agreement, you're using the software. How do you manage that without clicking on the I Agree button? So, you've clicked on the I Agree button without agreeing with the license. So what? The license is in effect because you're using the software without complying with the terms of the license. The license is still in effect, even if you don't agree with the terms, because you're using the software. That's according to your example in italics above.
To be clear for those watching at home, both you and I agree that it is wrong to do this - use pirated software - but this is a discussion of some of the legal principles involved. We agree about the moral principles.
If I buy software at Best Buy, I do have an implied contract, governed by the UCC, to pay them money to be allowed to walk out with the software. But the license itself is not a contract.
In other license cases, such as BSD or GPL, or when downloading other freeware or shareware (until registered), there isn't even that implied contract. I just use the software under the license granted.
Maybe he got a hacked version with the license removed. Still, you are correct, he would be using a copyrighted work without a license.
See 76. An implied contract with the retailer may be in the purchase. That contract governs the terms of the sale, but not the terms of the license. I don't gain anything by this, only clarifying the law concerning contracts and licenses.
Believe me, Microsoft does not want its licenses to be interpreted as contracts. They do not want large portions of them thrown out in court. Contracts are iffy and easily challenged. Licenses are much harder to break -- actually, I've never heard of one being broken.
I had an exchange with a Freeper last week who claimed he was a conservative but seriously advocated that all the assets of Bill Gates and Warren Buffet be confiscted at their death because they might leave it to liberal causes.
Ya can't make this stuff up!
The license is not in effect, because you're not abiding by the license agreement governing your use of the software. That's why you have a problem - because you don't have a valid license to use the software.
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