Software Licensing and Sanity (was Re: Moving from SCO to SuseLinux)

[Jay R. Ashworth]

On Fri, Jul 30, 2004 at 06:17:20PM -0400, Fairlight wrote:
> Only Kenneth Brody would say something like:
> > I think the courts have already decided that you must be able to read the
> > license agreement prior to opening it, or else be allowed to return it after
> > opening it.  (ie: you can't be bound to the terms of an agreement that you
> > cannot see until after agreeing to it.)
> 
> That's good at least.  It's spreading to more industries, too.  I read of a
> medical text publsher that gave a complimentary copy of their latest work
> to some doctor, and they had a shrinkwrap license inside the book that
> basically wouldn't let you give it to anyone, nor could you use it for 'x'
> purposes, nor could you return it, nor could you dispose of it.  It
> basically became a white elephant of a paperweight.

Not actionable.  Books, like computer software, records and
CD's, are subject to a thing (in the US) called the First Sale Doctrine.

See http://www.google.com/search?q=first%20sale%20doctrine and, especially,
http://www.fact-index.com/f/fi/first_sale_doctrine.html

This doesn't apply in the UK, which explains that silly "and without this
condition or a similar condition being imposed on the next purchaser"
folderol you sometimes see on the copyright pages of books.

> > That's why most software now requires you to click "I agree" as part of
> > the installation process.  (I don't think "sure, I signed that contract,
> > but I chose not read it" is an accepted line of defense.)
> 
> Clicking a button != signing a contract.  Let a vendor -prove- that a
> company clicked such a button rather than some employee acting on their
> own, or that a parent did so rather than their children.  Okay, the latter
> is a bad example since they bear legal responsibility for their children's
> actions, but say their spouse then.  Or college roommates.

Indeed.  The goal there is to force the user to make a conscious act
that requires some work on their part -- like license boxes that won't
*activate* the "OK" button until you *scroll to the bottom* of the
license.  The two actions make an excellent defence to "I wasn't paying
attention to the license, your honor".

> You're not actually signing anything, even digitally.  There is no way to
> prove who the Responsible Person is.  
> 

True.

> As for requiring that you click "I Agree" after reading it, well big deal
> if you've had to break the seal to get at it to start the installation
> process anyway.  Good luck getting any chain store to take it back, as
> of at least five years ago.  You -may- be able to get the manufacturer
> to take it back, but you know darned well they're going to suddenly want
> to place undo burden on the person who failed to agree to license it by
> auditing their systems to prove it was never installed, or was at least
> removed--which point is an invasion of privacy since you never agreed to
> allow audits in the first place if you didn't agree to the EULA that would
> allow it.  

Catch 22!

> So in effect, I suspect many people shrug, say, "Yeah, whatever," click "I
> Agree" even though they sure as hell don't, and go merrily on their way.
> I've talked to enough M$ Pa$$port users that use MSN Messenger and Hotmail
> to know that that's probably the case when extrapolated, for just one small
> example.  I can think of a bunch of people that use it that vehemently
> -dis-agree with the EULA, yet use the services.  I have a strong suspicion
> that the methodology behind such licensing/return policies has as much to
> do with the problem as do the ever-overreaching natures of EULA's in the
> first place.

Indeed.

> Heck, from what I've read and been told, anyone using PC-Anywhere or VNC on
> WinXP is violating the EULA of WinXP.  And you -know- that people are using
> both, so obviously many really don't give a fieg.

Correct.  When I install XP for a client -- which I think I've done,
like, 3 times in 2 years now, that's the one I explain to them, and I
make *them* click Yes.  For whatever *that's* worth. And, of course,
that happens *during the install*, so if the client is 500 miles away,
there's no way to do that right even if you cared.

> Redmond and the U.S. Govt. should just officially merge and save the
> duplicate effort at achieving total control.  

Oh, you didn't hear?

     ====
    REDMOND, Wash. - May 1, 1998: In direct response to accusations
    made by the Department of Justice, Microsoft Corp. announced today
    that it will be acquiring the federal government of the United
    States of America for an undisclosed sum. "It's actually a logical
    extension of our planned growth." said Microsoft chairman Bill
    Gates, "It really is going to be a positive arrangement for
    everyone." Microsoft representatives held a briefing in the oval
    office of the White House with U.S. President Bill Clinton, and
    assured members of the press that changes will be "minimal." The
    United States will be managed as a wholly owned division of
    Microsoft. An initial public offering is planned for July of next
    year, and the federal government is expected to be profitable by
    "Q4 1999 at latest," according to Microsoft president Steve Ballmer. 
     ====

http://www.teamits.com/connection/humor/msusa.php

And if you were wondering why your quarters were causing problems in
Coke<tm> machines; here's the folo:

http://www.teamits.com/connection/humor/msusa.php

Cheers,
-- jr 'Love your country, but never install its goverment's service packs' a
-- 
Jay R. Ashworth                                                jra at baylink.com
Designer                          Baylink                             RFC 2100
Ashworth & Associates        The Things I Think                        '87 e24
St Petersburg FL USA      http://baylink.pitas.com             +1 727 647 1274

	"You know: I'm a fan of photosynthesis as much as the next guy,
	but if God merely wanted us to smell the flowers, he wouldn't 
	have invented a 3GHz microprocessor and a 3D graphics board."
					-- Luke Girardi