Posted on 05/18/2005 10:30:09 AM PDT by Mike Bates
More than a third of the software installed on PCs worldwide during 2004 was pirated, with losses from unauthorized software increasing by $4 billion from 2003, according to a study released this week by the software trade group Business Software Alliance.
Thirty-five percent of all software installed on PCs was pirated, down from 36 percent in 2003, according to the study, conducted by research firm IDC.
Estimated losses from software piracy climbed, however, from $29 billion to $33 billion, as both the legal and unauthorized software markets grew from 2003 to 2004. IDC estimated that $90 billion worth of software was installed in 2004, compared to $80 billion in 2003, with sales of legal software growing 6 percent.
Countries using the most pirated software, according to IDC, are Vietnam, Ukraine, China, and Zimbabwe. Ninety percent or more of the software used in those countries was pirated during 2004, according to the BSA report. In more than half the 87 countries studied, software piracy exceeded 60 percent.
(Excerpt) Read more at story.news.yahoo.com ...
The license agreement, which governs your use of the software and details what the conditions for having a valid license, is a contract. Don't confuse the license - which is simply a grant of permission to use the software - with the license agreement, which details how and when that permission is granted to you - that agreement is very much a contract.
The fact that you clicked on the "I Agree" button is a strong piece of evidence to a court that you have agreed with the license agreement.
But because you and I are still in disagreement as to whether the license is a contract, we are probably going to disagree about this, also.
There is still one more issue that muddies all this license agreement stuff. Most license agrements are only available for you to read AFTER you've broken the seal on the disc packaging. Once you've broken the seal, it is assumed that you've either installed the software or copied the disc.
That tends to make the whole deal look more like a sale of goods than a license agreement situation. I've never seen a court decision settling this issue, but there may be one (or more than one) and I'll gladly change my opinion of this if someone can point to one.
You can't separate the two. The "agreement" is simply the terms of the license.
Time for a reality check. If I violate the Windows EULA by distributing copies, Microsoft will sue me for copyright infringement, not breach of contract. I have no relationship with Microsoft, so there can be no contract. If I negotiate and sign a contract with Microsoft for an enterprise license for Windows (and the contract states I will abide by the EULA), and I distribute copies, then Microsoft can sue me for both breach of contract and copyright infringement. A license itself does not a contract make.
Also, the EULA has many expressly written terms in it. If it were a contract, it would be an express contract, and a EULA definitely does not meet all the legal requirements of an express contract.
Or returned the software, as virtually all EULAs have provisions for any more. You know, that bit about "if you do not agree, do not install this software," etc.
The terms under which the license is offered to you, in exchange for your money. Which you either accept or not. Offer, consideration, acceptance - it's a contract.
If I violate the Windows EULA by distributing copies, Microsoft will sue me for copyright infringement, not breach of contract.
So what? If I beat you to death, the cops will arrest me for murder, not assault, but assault it still is. In any case, the point is that it's more akin to theft of services than you obviously care to admit.
Also, the EULA has many expressly written terms in it. If it were a contract, it would be an express contract, and a EULA definitely does not meet all the legal requirements of an express contract.
Sure it does. Offer, consideration, acceptance - that's all that's required. You're offered a license, in exchange for your purchase price, and your acceptance is indicated by installation and use, as the EULA specifies.
Having said that, BSA is to software piracy what CAIR is to islam.
The purchase at the store is an implied contract. The license itself is not.
In any case, the point is that it's more akin to theft of services than you obviously care to admit.
I don't care anything. The point is that you refuse to accept standard definitions of contract and license.
Sure it does. Offer, consideration, acceptance - that's all that's required.
No it isn't. Offer, consideration, acceptance, promise to perform, valuable consideration (payment), fulfillment requirements, and terms and conditions for performance. And all of these assume a business relationship.
You will notice that after your implied contract with Best Buy for the purchase, none of these conditions are met by the Microsoft license itself, as you have no contract, express or implied, with Microsoft itself.
Sorry, but even Microsoft will disagree with you. Windows is a monopoly (no, a monopoly is not bad in itself), and in thousands of cases across the country, people must use Windows for one reason or another to perform a task (Windows-only shop, compatibility reasons, etc.). If the license were a contract, it is extremely one-sided -- all in favor of Microsoft. Any court would likely see it as an adhesion contract, and would therefore break it. Nobody in the software industry wants licenses to be thought of as contracts, because licenses are not bound by the restrictions that contracts have.
Again, a "license" is merely a grant of permission to you. The EULA is the agreement that governs that grant of permission, and specifies the terms and conditions under which the license is given to you.
The point is that you refuse to accept standard definitions of contract and license.
I think not. The point is apparently morphing into your refusal to consider the EULA a binding contract. Good luck with that in court.
Offer, consideration, acceptance, promise to perform, valuable consideration (payment), fulfillment requirements, and terms and conditions for performance.
I'm sorry, but the three elements I listed are the standard parts of a valid contract - everything else you've got is already subsumed under one or all of those three elements. And a grant of a license is itself a "business relationship" - you are entering into a business relationshop with a software company when you agree to accept the license in exchange for the license fee. It is not granted to you unconditionally and in perpetuity, and it is not sold to you to do with as you see fit - it is granted per the terms of the agreement that governs the grant, the contract commonly known as the end user license agreement.
You will notice that after your implied contract with Best Buy for the purchase, none of these conditions are met by the Microsoft license itself, as you have no contract, express or implied, with Microsoft itself.
You most certainly do, the terms of which are spelled out in your EULA. You agree to pay the license fee and not redistribute the software, et cetera et cetera, and in exchange you are granted a use license for their software. You do not "own" the software, you are granted a license, and bound by contract for that license to be valid.
If the license were a contract, it is extremely one-sided -- all in favor of Microsoft.
You are free to reject it at any time - I don't recall the folks at Best Buy putting a gun to anyone's head and forcing them to part with license fees. I very much doubt that you can find even one single case where a license agreement was tossed out because of its one-sidedness - the best you'll find is that agreements have been voided because they're unclear.
To some software companies, if you buy some software and reload it on your computer at a hard drive crash they consider you to be a software pirate.
Under the terms of the license. Look at the GPL -- it doesn't even say it's an agreement, it's a license with terms. The BSD license doesn't even contain the word "agreement." The fact that Microsoft stuck the word "agreement" in theirs means nothing.
The point is apparently morphing into your refusal to consider the EULA a binding contract.
Of course I refuse, because it isn't a contract. That doesn't make violating it any less punishable though.
You agree to pay the license fee and not redistribute the software, et cetera et cetera, and in exchange you are granted a use license for their software. You do not "own" the software, you are granted a license, and bound by contract for that license to be valid.
Actually, I paid the license fee before I even saw the EULA, before I opened the box and installed the software. My implied contract with Best Buy was where the money changed hands. After that, you were doing well until you said "bound by contract." You are not, you are simply in violation of copyright law if you do something not allowed in the license.
That's bad enough, given that statutory damages are now up to $150,000 per willful infringement (you read the EULA and disregarded, or did something obviously infringing like copying) and $30,000 per negligent infringement (you didn't know reverse-engineering was prohibited in the EULA because you didn't read it). And unlike a contract case, it would be very easy for Microsoft to win because the law is stacked in favor of the copyright holder.
I very much doubt that you can find even one single case where a license agreement was tossed out because of its one-sidedness - the best you'll find is that agreements have been voided because they're unclear.
Of course not. A license can be as one-sided as the author wishes. You have no right to use the copyrighted work, and acceptance of the license under any conditions is the only thing allowing you to use it. It is only contracts that cannot be one-sided.
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). Microsoft decides to sue under breach of contract instead of copyright violation. I can show the judge how tiny little me is being sued by gigantic corporation, and that the EULA consists almost entirely of clauses limiting my rights and waiving any liability for Microsoft. Any judge would see that as an adhesion contract and break it. The resulting precedent would be devastating for Microsoft, and indeed any software license/contract.
The same thing can be done with poor little me wanting certain government documents only available in PDF, and violating a PDF reader license. I didn't realistically have the option of avoiding a license.
You seem to be stuck back in the 60s when pretty much all licenses were done under contract. The contracts have gone away in the mass software market because the companies can't afford to make a contract with each of the millions of users, and most users aren't ready to hire lawyers to negotiate that contract. Yes, negotiation, part of an enforceable express contract and something plainly missing from EULAs.
Long ago, Quark had the monopoly position in professional desktop publishing for newspapers. Their licensing was horrendous, costs high, and they were more arrogant and bullying than Microsoft. One Australian newspaper moved offices, and Quark demanded that they buy all new licenses because the licenses they had were only for the previous location.
I have over 1000 sheep. Not one of which I would have paid for if it was the only option. Most of them were scrawny and had gnarly wool so we just ate them. We wouldn't have bought them anyway.
"I have over 1000 sheep. Not one of which I would have paid for if it was the only option. Most of them were scrawny and had gnarly wool so we just ate them. We wouldn't have bought them anyway."
?
I figured you'd get that eponymously named userid was notable for being a sheep rustler. Modern day RobRoys steal software, songs, movies, books.
Pffft...
Very cute. I think the point they're trying to make is that the companies survey the number of unlicensed works out there, and multiply that by the license cost to come up with the number for losses. That formula works okay in real goods, because a person can show an actual monetary loss for every item stolen.
It's different with copyrighted works, where if I take it you haven't lost your copy, only the profit you could have made had I bought a license. That assumes I would have bought it had I not downloaded it, which in probably the majority of cases is not true. So statistics like this are grossly inflated.
However, what's true for copyrighted works is that the owner can seek statutory damages from an infringer, an option not available for real property. Those damages far outweigh the cost of all songs and most software: a minimum of $200 per infringement in the worst case for the registered copyright holder, up to $150,000.
And don't forget, downloading for personal use is completely legal...
Fair use is a grey area, and I doubt that would be upheld. There are really five factors that go into fair use:
The formula works for copies of intellectual property. The argument that I wouldn't have bought it anyway is shallow. They have pirated songs, movies, books and software because they want it, need it, and can easily get away with it.
Most importantly, if one puts their ridiculous hatred of Bill Gates and RIIA behind them, is the countries we are trading with under the guise of "free trade" that are ripping off our copyrights, industrial patents, trade secrets and offshoring our skilled labor. China (and India - not mentioned) not only steal Windows(tm) and Brittany Spears(tm) CDs, but violate hundreds of much smaller companies software copyrights, industrial patents and trade secrets.
Hmmm. Sounds interesting. I shall have to give it a try a bit later on then. My thanks for the referral.
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