Software and End-user Licences
where.to.invest
manufacturers like Microsoft, cannot have any legal effect under
contract law because there is no contract between the end-using purchaser
and the manufacturer.
Instead, these licences only have effect under Australian copyright law,
if they have any effect at all. If they have any effect, it is clear
enough that their terms are subject to the normal law, especially the
Trade Practices Act.
What is the legal position of the end-using purchaser of software? Are
they liable for either damages in civil law or penalties under the
criminal law if they breach the terms of the licence?
Has anyone been prosecuted, or sued by Microsoft, in this situation in
Australia or anywhere else?
Rod Speed
> As I understand the situation, the end-user licences of software
> manufacturers like Microsoft, cannot have any legal effect under
> contract law because there is no contract between the end-using
> purchaser and the manufacturer.
Correct.
> Instead, these licences only have effect under
> Australian copyright law, if they have any effect at all.
More strictly australian copyright law applies and the purported 'agreement' is
completely irrelevant because no end user ever entered into any contract with anyone.
> If they have any effect, it is clear enough that their terms are
> subject to the normal law, especially the Trade Practices Act.
They are indeed.
> What is the legal position of the end-using purchaser of software?
You have the same rights you have with any other goods or services.
> Are they liable for either damages in civil law or penalties under
> the criminal law if they breach the terms of the licence?
Nope, because there is no contract with anyone.
> Has anyone been prosecuted, or sued by
> Microsoft, in this situation in Australia
Nope. They arent that stupid.
> or anywhere else?
They have attempted that at times and lost.
where.to.invest
Given the above, what (if anything) prevents any end-user of software
obtained other than by purchase(eg downloaded from the internet, acquired
from friend's copy or pirate copy) from getting one of the various
"cracks" to validate/authenticate/activate the software, and using it?
That is, simply appropriating the software and using it for free without
any legal or practical limitations other than those built into the
software.
It can't be contract. If it's breach of copyright, how does it become a
breach?
Rod Speed
>> Correct.
>> They are indeed.
>>> or anywhere else?
Just the copyright act and has no real effect on that level of breach of copyright.
> That is, simply appropriating the software and using it for free without
> any legal or practical limitations other than those built into the software.
There is a legal limitation, the copyright law.
> It can't be contract.
Correct.
> If it's breach of copyright,
It is.
> how does it become a breach?
Technically its an unauthorised copy, not authorised by the copyright owner.
Epsilon
> Sylvia Else wrote:
>> copy is authorised (whether by implication or expressly) it's a
>> breach of copyright.
>
> Interesting that the above cross-post made it through to some news
> servers but not all, and was not submitted for approval. It seems a
> peculiarity of Astraweb.
Once I get a CD/DVD containing the software, it's legally hard to stop me
using that software. Well, impossible, in most situations. Abstract
threats of criminal or civil proceedings are just bluff for most end-users.
So far as the authorisation is concerned, how does the copyright owner
(Microsoft) expressly or impliedly authorise the copy? The EULA? It
purports to be the terms of an agreement, but there is no agreement between
the copyright owner and the end-user.
brenton
"Epsilon" <n...@this.address.com> wrote in message
news:hmcl05$eua$1...@news.albasani.net...
>>>
>>> It's hard to use software without making a copy of it, and unless the
>>> copy is authorised (whether by implication or expressly) it's a
>>> breach of copyright.
>>
>> Interesting that the above cross-post made it through to some news
>> servers but not all, and was not submitted for approval. It seems a
>> peculiarity of Astraweb.
>
> Once I get a CD/DVD containing the software, it's legally hard to stop me
> using that software. Well, impossible, in most situations. Abstract
> threats of criminal or civil proceedings are just bluff for most
> end-users.
>
> So far as the authorisation is concerned, how does the copyright owner
> (Microsoft) expressly or impliedly authorise the copy? The EULA? It
> purports to be the terms of an agreement, but there is no agreement
> between
> the copyright owner and the end-user.
Why is there no agreement between the copyright owner and the end-user?
There is a presentation of terms which the end-user agrees to by clicking "I
Accept" or whatever.
Epsilon
Australian law will apply to determine whether anything can be done to the
end-user by the copyright holder. For there to be a legally binding
agreement between the two, the normal requirements under Australian law must
be satisfied ie offer and acceptance, and consideration by both. They are
not there. Instead, the EULA simply proceeds on the basis that there is a
legally binding agreement when there is not, and it purports to limit what
the end-user is able to do with the software. Commonly known as pulling
yourself up by your own boot-laces.
> There is a presentation of terms which the end-user agrees
> to by clicking "I Accept" or whatever.
Who is the copyright holder to impose the terms of a purported agreement on
anyone who has a copy of the software? In a simple case of the purchase of
the CD/DVD at retail, the purchaser has paid for the product, and should be
free to do as he or she likes with it, subject to the prevailing law
(including copyright law). The question is - how does the copyright holder
get to impose legally binding limits on the use of the product after that
initial purchase from the retailer? Indeed, the end-user may not even be
the purchaser.
Rod Speed
> Epsilon <n...@this.address.com> wrote
>>>> It's hard to use software without making a copy of it, and unless the copy is authorised (whether by implication or
>>>> expressly) it's a breach of copyright.
>>> Interesting that the above cross-post made it through to some news servers but not all, and was not submitted for
>>> approval. It seems a peculiarity of Astraweb.
>> Once I get a CD/DVD containing the software, it's legally hard to
>> stop me using that software. Well, impossible, in most situations. Abstract threats of criminal or civil proceedings
>> are just bluff for
>> most end-users.
>> So far as the authorisation is concerned, how does the copyright
>> owner (Microsoft) expressly or impliedly authorise the copy? The
>> EULA? It purports to be the terms of an agreement, but there is no
>> agreement between the copyright owner and the end-user.
> Why is there no agreement between the copyright owner and the end-user?
Just because the vendor claims that there is a contract, doesnt mean that there is one.
> There is a presentation of terms which the end-user agrees to by clicking "I Accept" or whatever.
Those also include a clause that says that local law
overrides that and our copyright law does override that.
brenton
>>>
>>> Once I get a CD/DVD containing the software, it's legally hard to
>>> stop me using that software. Well, impossible, in most situations.
>>> Abstract threats of criminal or civil proceedings are just bluff for
>>> most end-users.
>>>
>>> So far as the authorisation is concerned, how does the copyright
>>> owner (Microsoft) expressly or impliedly authorise the copy? The
>>> EULA? It purports to be the terms of an agreement, but there is no
>>> agreement between
>>> the copyright owner and the end-user.
>>
>> Why is there no agreement between the copyright owner and the
>> end-user?
>
> Australian law will apply to determine whether anything can be done to the
> end-user by the copyright holder. For there to be a legally binding
> agreement between the two, the normal requirements under Australian law
> must be satisfied ie offer and acceptance, and consideration by both.
> They are not there. Instead, the EULA simply proceeds on the basis that
> there is a legally binding agreement when there is not, and it purports to
> limit what the end-user is able to do with the software. Commonly known
> as pulling yourself up by your own boot-laces.
>
>> There is a presentation of terms which the end-user agrees
>> to by clicking "I Accept" or whatever.
>
> Who is the copyright holder to impose the terms of a purported agreement
> on anyone who has a copy of the software?
The software is copyrighted. Under Australian copyright law, no one can
copy or use copyrighted software without a licence. That is the law. Now,
it seems the EULA is the method by which the licence terms are communicated
to the end-user, whether or not they have purchased the software at retail.
By pressing "I Accept" the user is at least acknowledging notice of the
licence conditions thereby exposing them to liability if they breach those
conditions. If presentation of the licence conditions is the offer, then
pressing the "I Accept" button is the acceptance. Consideration from the
licensor is the licence, and consideration from the licencee is the promise
to abide by the licence conditions.
where.to.invest
Which provision in our copyright law overrides it?
Epsilon
No problem with that.
> Now, it seems the EULA is the method by which the licence terms
> are communicated to the end-user, whether or not they have purchased
> the software at retail.
That's nor Microsoft's claim. They claim that they can impose an agreement
on the end-user. They don't say that the EULA is the document that contains
the licence conditions, or the terms of the copyright holder's authority to
copy the software.
> By pressing "I Accept" the user is at least
> acknowledging notice of the licence conditions thereby exposing them
> to liability if they breach those conditions.
Notice of the terms of an authority to copy a thing subject to copyright is
irrelevant.
> If presentation of the
> licence conditions is the offer, then pressing the "I Accept" button
> is the acceptance.
It is clearly not an offer by Microsoft in terms. What it amounts to is a
minor mechanical step that the end-user has to go through to make the
product work.
> Consideration from the licensor is the licence,
> and consideration from the licencee is the promise to abide by the
> licence conditions.
It's too late. The purchaser has already paid their money to get the
product. Microsoft is attempting to impose an ex post facto legal condition
on an end-user after the product has been purchased.
Even if credibility is given to the clain, the Trade Practices Act 1974 will
strike down such a arrangement. And the EULA is expressly subject to that
law.
Epsilon
> Ozgood wrote:
>> Sylvia Else wrote:
>>> right to do whatever is necessary to run that software. The
>>> copyright holder cannot require that the purchaser enter into a
>>> particular licence agreement before they have the implied right. At
>>> least, not unless this requirement, and the terms, were made clear
>>> in advance.
>>>
>>> Threre's also
>>>
>>> http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s47b.html
>>>
>>>
>>> ? That is the law. Now,
>>>> it seems the EULA is the method by which the licence terms are
>>>> communicated to the end-user, whether or not they have purchased
>>>> the software at retail. By pressing "I Accept" the user is at least
>>>> acknowledging notice of the licence conditions thereby exposing
>>>> them to liability if they breach those conditions.
>>>
>>>> If presentation of the licence conditions is the offer, then
>>>> pressing the "I Accept" button is the acceptance. Consideration
>>>> from the licensor is the licence, and consideration from the
>>>> licencee is the promise to abide by the licence conditions.
>>>
>>> entitled to run the software. From the perspective of the user,
>>> they've pressed "Accept" merely because it's the only way they can
>>> exercise the rights they already have.
>>
> .
> (Well, it gets the post circulated!)
But only to aus.legal...
brenton
>>
>> Now, it seems the EULA is the method by which the licence terms
>> are communicated to the end-user, whether or not they have purchased
>> the software at retail.
>
> That's nor Microsoft's claim. They claim that they can impose an
> agreement on the end-user. They don't say that the EULA is the document
> that contains the licence conditions, or the terms of the copyright
> holder's authority to copy the software.
>
But you do accept that at the very least the EULA communicates the licence
conditions to the user?
>> By pressing "I Accept" the user is at least
>> acknowledging notice of the licence conditions thereby exposing them
>> to liability if they breach those conditions.
>
> Notice of the terms of an authority to copy a thing subject to copyright
> is irrelevant.
>
Why is it irrelevant? The licence might be that the software not be used
for commercial purposes, thereby exposing the user to liability if they use
it contrarily.
>> If presentation of the
>> licence conditions is the offer, then pressing the "I Accept" button
>> is the acceptance.
>
> It is clearly not an offer by Microsoft in terms. What it amounts to is a
> minor mechanical step that the end-user has to go through to make the
> product work.
>
You may see it as a mechanical step, but if the words 'agreement' or 'terms'
are used and the user is required to click "I Accept" or "I Agree", then
that looks a lot like an offer and acceptance. If it looks like a spade...
>> Consideration from the licensor is the licence,
>> and consideration from the licencee is the promise to abide by the
>> licence conditions.
>
> It's too late. The purchaser has already paid their money to get the
> product. Microsoft is attempting to impose an ex post facto legal
> condition on an end-user after the product has been purchased.
>
That's one interpretation. But Microsoft could easily say you are purchasing
the media and not the licence. It's your choice to fork out the money for
just the media. The licence agreement comes later then you install it. You
may return the product if it's not what you expected, just like any other
product. This is all within the TPA.
> Even if credibility is given to the clain, the Trade Practices Act 1974
> will strike down such a arrangement. And the EULA is expressly subject to
> that law.
>
>>> In a simple case of the purchase of
>>> the CD/DVD at retail, the purchaser has paid for the product, and
>>> should be free to do as he or she likes with it, subject to the
>>> prevailing law (including copyright law). The question is - how
>>> does the copyright holder get to impose legally binding limits on
>>> the use of the product after that initial purchase from the
>>> retailer?
How do you answer this question? How should the copyright holder secure
conditions on the use of the software?
Rod Speed
> Epsilon <n...@this.address.com> wrote
>>>> Once I get a CD/DVD containing the software, it's legally hard to
>>>> stop me using that software. Well, impossible, in most situations.
>>>> Abstract threats of criminal or civil proceedings are just bluff
>>>> for most end-users.
>>>> So far as the authorisation is concerned, how does the copyright
>>>> owner (Microsoft) expressly or impliedly authorise the copy? The
>>>> EULA? It purports to be the terms of an agreement, but there is
>>>> no agreement between
>>>> the copyright owner and the end-user.
>>> Why is there no agreement between the copyright owner and the end-user?
>> Australian law will apply to determine whether anything can be done
>> to the end-user by the copyright holder. For there to be a legally
>> binding agreement between the two, the normal requirements under
>> Australian law must be satisfied ie offer and acceptance, and
>> consideration by both. They are not there. Instead, the EULA simply
>> proceeds on the basis that there is a legally binding agreement when
>> there is not, and it purports to limit what the end-user is able to
>> do with the software. Commonly known as pulling yourself up by your
>> own boot-laces.
>>> There is a presentation of terms which the end-user agrees
>>> to by clicking "I Accept" or whatever.
>> Who is the copyright holder to impose the terms of a purported
>> agreement on anyone who has a copy of the software?
> The software is copyrighted.
Yes.
> Under Australian copyright law, no one can copy or use copyrighted software without a licence.
That is just plain wrong. There is no license with a CD/DVD
The copyright owner claiming that you have agreed to
something doesnt mean that any end user that bought
the software at retail actually agreed to a damned thing.
And the 3rd party who offers support for their product in spades.
> That is the law.
You have in fact mangled the law utterly.
> Now, it seems the EULA is the method by which the licence terms are communicated to the end-user,
No it is not. That is in fact pure bluff because no end user who
bought something at retail has in fact agreed to a damned thing.
And if that purported 'agreement' includes some crap like you will
not provide support to someone else with that product, or that you
will not use the CD/DVD as a frizzby, or that you will not wipe you
arse with pages of a book etc etc etc, that is null and void even
if there was a formal signed and witnesses agreement anyway.
> whether or not they have purchased the software at retail. By pressing "I Accept" the user is at least acknowledging
> notice of the licence conditions
No it does not. The most it does is sees the user click a button
and not even other to read the purported terms and conditions
at all or even if they do read them, decide that a particular
provision like a claim that you will not provide support to
someone else with that product, or that you will not use the
CD/DVD as a frizzby, or that you will not wipe you arse with
pages of a book etc etc etc, is null and void under australian
law, just like signing something that claims that the operation
that provides a good or service has not responsibility what
so ever for the quality of that good or service, etc etc etc is.
> thereby exposing them to liability if they breach those conditions.
No it does not. Even if you sign something and it is witnessed etc.
> If presentation of the licence conditions is the offer, then pressing the "I Accept" button is the acceptance.
No it is not. Neither is signing it and having that witnessed
either when a particular provision flouts australian law.
> Consideration from the licensor is the licence, and consideration from the licencee is the promise to abide by the
> licence conditions.
Utterly mangled all over again.
Rod Speed
The right to make a copy in order to run it/install it etc.
And there is the TPA as well.
Epsilon
> "Epsilon" <n...@this.address.com> wrote in message
> news:hmcrac$m9a$1...@news.albasani.net...
>>>
>>> Now, it seems the EULA is the method by which the licence terms
>>> are communicated to the end-user, whether or not they have purchased
>>> the software at retail.
>>
>> agreement on the end-user. They don't say that the EULA is the
>> document that contains the licence conditions, or the terms of the
>> copyright holder's authority to copy the software.
>>
>
> But you do accept that at the very least the EULA communicates the
> licence conditions to the user?
No.
>>> By pressing "I Accept" the user is at least
>>> acknowledging notice of the licence conditions thereby exposing them
>>> to liability if they breach those conditions.
>>
>> Notice of the terms of an authority to copy a thing subject to
>> copyright is irrelevant.
>>
>
> Why is it irrelevant? The licence might be that the software not be
> used for commercial purposes, thereby exposing the user to liability
> if they use it contrarily.
First, find the authority to copy the software. I don't accept that the
EULA is that authority. Buying the product is the authority to copy it.
Just like pretty well any other product subject to copyright.
>>> If presentation of the
>>> licence conditions is the offer, then pressing the "I Accept" button
>>> is the acceptance.
>>
>> It is clearly not an offer by Microsoft in terms. What it amounts
>> to is a minor mechanical step that the end-user has to go through to
>> make the product work.
>>
>
> You may see it as a mechanical step, but if the words 'agreement' or
> 'terms' are used and the user is required to click "I Accept" or "I
> Agree", then that looks a lot like an offer and acceptance. If it
> looks like a spade...
Microsoft can't impose an agreement after the event. It's just a step
required by a user to get the software they have already purchased to
operate. The end-user doesn't enter into an agreement merely because
Microsoft has set up the product that way.
>>> Consideration from the licensor is the licence,
>>> and consideration from the licencee is the promise to abide by the
>>> licence conditions.
>>
>> It's too late. The purchaser has already paid their money to get the
>> product. Microsoft is attempting to impose an ex post facto legal
>> condition on an end-user after the product has been purchased.
>>
>
> That's one interpretation. But Microsoft could easily say you are
> purchasing the media and not the licence. It's your choice to fork
> out the money for just the media.
They can say whatever they like. But they don't get to force anyone into a
legal position once the product has been purchased.
> The licence agreement comes later
> then you install it. You may return the product if it's not what you
> expected, just like any other product. This is all within the TPA.
My understanding is that it is not possible in the real world to return the
product. But I claim no first-hand knowledge of that.
>> Even if credibility is given to the claim, the Trade Practices Act
>> 1974 will strike down such a arrangement. And the EULA is expressly
>> subject to that law.
>>
>>>> In a simple case of the purchase of
>>>> the CD/DVD at retail, the purchaser has paid for the product, and
>>>> should be free to do as he or she likes with it, subject to the
>>>> prevailing law (including copyright law). The question is - how
>>>> does the copyright holder get to impose legally binding limits on
>>>> the use of the product after that initial purchase from the
>>>> retailer?
>
> How do you answer this question? How should the copyright holder
> secure conditions on the use of the software?
A very good question. At the least, the copyright holder would have to
ensure that the conditions on copying the software are apparent on the face
of the product so that the hypothetical reasonable prospective purchaser
would be well aware that he or she was not buying a product that he or she
could do whatever they wanted with it. Microsoft do nothing like that.
It might be argued that the EULA contains such extraordinary limitations on
use that are not brought to a purchaser's attention before purchase, and
that some, most or all of the EULA would be struck down under the TPA in any
event.
brenton
>>>>
>>>> By pressing "I Accept" the user is at least
>>>> acknowledging notice of the licence conditions thereby exposing them
>>>> to liability if they breach those conditions.
>>>
>>> Notice of the terms of an authority to copy a thing subject to
>>> copyright is irrelevant.
>>>
>>
>> Why is it irrelevant? The licence might be that the software not be
>> used for commercial purposes, thereby exposing the user to liability
>> if they use it contrarily.
>
> First, find the authority to copy the software. I don't accept that the
> EULA is that authority. Buying the product is the authority to copy it.
> Just like pretty well any other product subject to copyright.
>
Buying the product is probably authority to copy/use it for standard
purposes, but subject to certain conditions which may be revealed during
installation.
>>>> If presentation of the
>>>> licence conditions is the offer, then pressing the "I Accept" button
>>>> is the acceptance.
>>>
>>> It is clearly not an offer by Microsoft in terms. What it amounts
>>> to is a minor mechanical step that the end-user has to go through to
>>> make the product work.
>>>
>>
>> You may see it as a mechanical step, but if the words 'agreement' or
>> 'terms' are used and the user is required to click "I Accept" or "I
>> Agree", then that looks a lot like an offer and acceptance. If it
>> looks like a spade...
>
> Microsoft can't impose an agreement after the event. It's just a step
> required by a user to get the software they have already purchased to
> operate. The end-user doesn't enter into an agreement merely because
> Microsoft has set up the product that way.
>
Well, they might be able to. If a EULA contains a strange term that would
restrict my expected use of the product then I would take it back.
It may not be practical to have the full EULA printed on the box. Would you
prefer to read a long document which you then sign at the store counter?
>>>> Consideration from the licensor is the licence,
>>>> and consideration from the licencee is the promise to abide by the
>>>> licence conditions.
>>>
>>> It's too late. The purchaser has already paid their money to get the
>>> product. Microsoft is attempting to impose an ex post facto legal
>>> condition on an end-user after the product has been purchased.
>>>
>>
>> That's one interpretation. But Microsoft could easily say you are
>> purchasing the media and not the licence. It's your choice to fork
>> out the money for just the media.
>
> They can say whatever they like. But they don't get to force anyone into
> a legal position once the product has been purchased.
>
It depends on what is being purchased. You are clearly purchasing some
shiny discs. Anything more is an abstraction.
If I buy a lawnmower that doesn't mean I can mow the next door neighbour's
lawn, because there are laws in place to stop me doing that. What's the
difference?
If there is a situation where the copyright laws and TPA laws conflict then
the courts will need to resolve that, but how do we know what will happen
for the simple EULAs that most people are seeing?
>> The licence agreement comes later
>> then you install it. You may return the product if it's not what you
>> expected, just like any other product. This is all within the TPA.
>
> My understanding is that it is not possible in the real world to return
> the product. But I claim no first-hand knowledge of that.
>
If the EULA said that you can't use the product commercially and there was
nothing on the box to indicate this, then you would clearly be allowed to
return it. I have first-hand experience of returning software.
>>
>> How do you answer this question? How should the copyright holder
>> secure conditions on the use of the software?
>
> A very good question. At the least, the copyright holder would have to
> ensure that the conditions on copying the software are apparent on the
> face of the product so that the hypothetical reasonable prospective
> purchaser would be well aware that he or she was not buying a product that
> he or she could do whatever they wanted with it. Microsoft do nothing
> like that.
>
Whether Microsoft is a model vendor is not the issue. EULAs seem to be
standard these days, so like it or not, they have gained some legal power.
> It might be argued that the EULA contains such extraordinary limitations
> on use that are not brought to a purchaser's attention before purchase,
> and that some, most or all of the EULA would be struck down under the TPA
> in any event.
What such extraordinary limitations are you talking about? Have you
actually read all the way through one?
Epsilon
> "Epsilon" <n...@this.address.com> wrote in message
> news:hmcv3h$rhq$1...@news.albasani.net...
>>>>>
>>>>> By pressing "I Accept" the user is at least
>>>>> acknowledging notice of the licence conditions thereby exposing
>>>>> them to liability if they breach those conditions.
>>>>
>>>> Notice of the terms of an authority to copy a thing subject to
>>>> copyright is irrelevant.
>>>>
>>>
>>> Why is it irrelevant? The licence might be that the software not be
>>> used for commercial purposes, thereby exposing the user to liability
>>> if they use it contrarily.
>>
>> First, find the authority to copy the software. I don't accept that
>> the EULA is that authority. Buying the product is the authority to
>> copy it. Just like pretty well any other product subject to
>> copyright.
>
> Buying the product is probably authority to copy/use it for standard
> purposes, but subject to certain conditions which may be revealed
> during installation.
The vendor can't dictate that those "conditions" be treated seriously. The
end-user might choose to ignore them.
>>>>> If presentation of the
>>>>> licence conditions is the offer, then pressing the "I Accept"
>>>>> button is the acceptance.
>>>>
>>>> It is clearly not an offer by Microsoft in terms. What it amounts
>>>> to is a minor mechanical step that the end-user has to go through
>>>> to make the product work.
>>>>
>>>
>>> You may see it as a mechanical step, but if the words 'agreement' or
>>> 'terms' are used and the user is required to click "I Accept" or "I
>>> Agree", then that looks a lot like an offer and acceptance. If it
>>> looks like a spade...
>>
>> Microsoft can't impose an agreement after the event. It's just a
>> step required by a user to get the software they have already
>> purchased to operate. The end-user doesn't enter into an agreement
>> merely because Microsoft has set up the product that way.
>>
>
> Well, they might be able to. If a EULA contains a strange term that
> would restrict my expected use of the product then I would take it
> back.
Or you choose to ignore it.
> It may not be practical to have the full EULA printed on the box. Would
> you prefer to read a long document which you then sign at the
> store counter?
That's more a problem for a vendor who wants to impose conditions and have
them stick legally.
>>>>> Consideration from the licensor is the licence,
>>>>> and consideration from the licencee is the promise to abide by the
>>>>> licence conditions.
>>>>
>>>> It's too late. The purchaser has already paid their money to get
>>>> the product. Microsoft is attempting to impose an ex post facto
>>>> legal condition on an end-user after the product has been
>>>> purchased.
>>>
>>> That's one interpretation. But Microsoft could easily say you are
>>> purchasing the media and not the licence. It's your choice to fork
>>> out the money for just the media.
>>
>> They can say whatever they like. But they don't get to force anyone
>> into a legal position once the product has been purchased.
>>
>
> It depends on what is being purchased. You are clearly purchasing
> some shiny discs. Anything more is an abstraction.
That's likw saying that when you buy a book, you are buying paper.
> If I buy a lawnmower that doesn't mean I can mow the next door
> neighbour's lawn, because there are laws in place to stop me doing
> that. What's the difference?
The limits on use aren't dictated by the vendor.
> If there is a situation where the copyright laws and TPA laws
> conflict then the courts will need to resolve that, but how do we
> know what will happen for the simple EULAs that most people are
> seeing?
In the real world, the situation is clear enough. Microsoft doesn't
generally attempt to enforce the EULAs on end-users in the courts in any
way, anywhere. Instead, they do things to the software that limit, to some
extent, what the end-user can do as a matter of practice. And end-users
respond in ways that are well-known.
>>> The licence agreement comes later
>>> then you install it. You may return the product if it's not what
>>> you expected, just like any other product. This is all within the
>>> TPA.
>>
>> My understanding is that it is not possible in the real world to
>> return the product. But I claim no first-hand knowledge of that.
>>
>
> If the EULA said that you can't use the product commercially and
> there was nothing on the box to indicate this, then you would clearly
> be allowed to return it. I have first-hand experience of returning
> software.
Or you just ignore that demand.
>>> How do you answer this question? How should the copyright holder
>>> secure conditions on the use of the software?
>>
>> A very good question. At the least, the copyright holder would have
>> to ensure that the conditions on copying the software are apparent
>> on the face of the product so that the hypothetical reasonable
>> prospective purchaser would be well aware that he or she was not
>> buying a product that he or she could do whatever they wanted with
>> it. Microsoft do nothing like that.
>>
>
> Whether Microsoft is a model vendor is not the issue. EULAs seem to
> be standard these days, so like it or not, they have gained some
> legal power.
They have become the method of bluff of many vendors. You can readily see
how legally effective they are by the amount of litigation going through the
courts. Hoe effective the bluff might be is another matter, although the
bluff is backed by some practical controls.
>> It might be argued that the EULA contains such extraordinary
>> limitations on use that are not brought to a purchaser's attention
>> before purchase, and that some, most or all of the EULA would be
>> struck down under the TPA in any event.
>
> What such extraordinary limitations are you talking about? Have you
> actually read all the way through one?
Yes. Foe example, how much liability will Microsoft accept if the product
proves defective in a particular instance and causes major loss to an
end-user?
Rod Speed
> Epsilon <n...@this.address.com> wrote
>>>>> By pressing "I Accept" the user is at least acknowledging notice of the licence conditions thereby exposing
>>>>> them to liability if they breach those conditions.
>>>> Notice of the terms of an authority to copy a thing subject to copyright is irrelevant.
>>> Why is it irrelevant? The licence might be that the software not be
>>> used for commercial purposes, thereby exposing the user to liability
>>> if they use it contrarily.
>> First, find the authority to copy the software. I don't accept that
>> the EULA is that authority. Buying the product is the authority to
>> copy it. Just like pretty well any other product subject to copyright.
> Buying the product is probably authority to copy/use it
It absolutely certainly is, there is no other point in buying it.
> for standard purposes,
That is absolutely bogus. There is no reason why
it cant be for non standard but legal purposes.
> but subject to certain conditions which may be revealed during installation.
That has no relevance under australian law. In fact you are legally
entitled to expect that the good you bought is fit for purpose etc.
Even if there is some condition written on the outside in some
obvious place in large letters, that doesnt necessarily have any
legal significance, particularly if it flouts australian law.
Any more than some fucking great sign that claims that you forfeit any
rights to a refund if the goods are not of merchantable quality etc is either.
>>>>> If presentation of the licence conditions is the offer, then pressing the "I Accept" button is the acceptance.
>>>> It is clearly not an offer by Microsoft in terms. What it amounts
>>>> to is a minor mechanical step that the end-user has to go through
>>>> to make the product work.
>>> You may see it as a mechanical step, but if the words 'agreement' or
>>> 'terms' are used and the user is required to click "I Accept" or "I
>>> Agree", then that looks a lot like an offer and acceptance. If it
>>> looks like a spade...
>> Microsoft can't impose an agreement after the event. It's just a
>> step required by a user to get the software they have already
>> purchased to operate. The end-user doesn't enter into an agreement
>> merely because Microsoft has set up the product that way.
> Well, they might be able to.
Nope.
> If a EULA contains a strange term that would restrict my expected use of the product then I would take it back.
There is no legal requirement to do that.
In spades with a restriction that flouts australian law.
You are welcome to ignore that restriction, just like you are with the claim
that you have no rights to a refund under any circumstances etc too.
> It may not be practical to have the full EULA printed on the box.
Irrelevant to the law.
> Would you prefer to read a long document which you then sign at the store counter?
Still wouldnt make any difference if they went that route when
that document flouts australian law like with a claim that you
arent entitled to a refund even if the goods arent of merchantable
quality, or that you 'agree' not to use the CD/DVD as a frizzby etc.
>>>>> Consideration from the licensor is the licence,
>>>>> and consideration from the licencee is the promise to abide by the licence conditions.
>>>> It's too late. The purchaser has already paid their money to get
>>>> the product. Microsoft is attempting to impose an ex post facto
>>>> legal condition on an end-user after the product has been purchased.
>>> That's one interpretation. But Microsoft could easily say you are purchasing the media and not the licence. It's
>>> your choice to fork out the money for just the media.
>> They can say whatever they like. But they don't get to force anyone into a legal position once the product has been
>> purchased.
> It depends on what is being purchased.
Nope.
> You are clearly purchasing some shiny discs.
You dont even know that until you open it.
> Anything more is an abstraction.
Nope. Its part of the description of what you have purchased.
> If I buy a lawnmower that doesn't mean I can mow the next door
neighbour's lawn, because there are laws in place to stop me doing that.
No there arent when the neighbour is happy for you to do that.
And even if they dont even get asked and you do it because
the lawn is too long and you are aware that your neighbour
finds it hard to get around to mowing it etc.
> What's the difference?
There is no difference in the sense that you are entitled to
believe that it will mow all normal lawns and that the seller
of the lawn mower gets no say whatever on whether you
do that in the middle of the night, or stark naked or if you
wear adequate foot protection etc etc etc.
> If there is a situation where the copyright laws and TPA laws conflict
They dont.
> then the courts will need to resolve that,
Wrong again.
> but how do we know what will happen for the simple EULAs that most people are seeing?
We know that they dont get to impose a damned thing on someone
who purchased something at retail, even if they do get you to sign
something and that is witnessed etc.
If you sign a purported 'agreement' that you wont use a CD/DVD
as a frizzby, because you know that that is legally unenforceable,
the seller of that CD/DVD gets to whistle Dixie for all the good that
it will do if you do that anyway.
Or if for example you purportedly 'agree' to only use
the software when wearing red underpants etc etc etc.
>>> The licence agreement comes later then you install it. You may return the product if it's not what> you expected,
>>> just like any other product. This is all within the TPA.
>> My understanding is that it is not possible in the real world to
>> return the product. But I claim no first-hand knowledge of that.
> If the EULA said that you can't use the product commercially and
> there was nothing on the box to indicate this, then you would clearly
> be allowed to return it. I have first-hand experience of returning software.
Sure, but thats an entirely separate matter to what is legally enforceable.
>>> How do you answer this question? How should the copyright holder secure conditions on the use of the software?
>> A very good question. At the least, the copyright holder would have
>> to ensure that the conditions on copying the software are apparent
>> on the face of the product so that the hypothetical reasonable
>> prospective purchaser would be well aware that he or she was not
>> buying a product that he or she could do whatever they wanted with
>> it. Microsoft do nothing like that.
> Whether Microsoft is a model vendor is not the issue. EULAs seem to be standard these days,
Yes.
> so like it or not, they have gained some legal power.
No they have not. Its pure bluff that does bluff the legally ignorant very effectively.
It is even if they get you to sign something too.
>> It might be argued that the EULA contains such extraordinary
>> limitations on use that are not brought to a purchaser's attention
>> before purchase, and that some, most or all of the EULA would be struck down under the TPA in any event.
> What such extraordinary limitations are you talking about?
Like it must remain with the hardware it was bought with and cannot be sold separately etc.
That has no legal basis what so ever under australian law.
> Have you actually read all the way through one?
Corse we have. Says nothing useful what so ever about what is legally enforceable.
brenton
>>
>> Buying the product is probably authority to copy/use it for standard
>> purposes, but subject to certain conditions which may be revealed
>> during installation.
>
> The vendor can't dictate that those "conditions" be treated seriously.
> The end-user might choose to ignore them.
>
At their own peril. If the EULA terms are reasonable and not offensive to
the TPA then why should they not hold? The fact is that software is not
like other consumer products because it is copyrighted and subject to
controls over use.
>>
>> Well, they might be able to. If a EULA contains a strange term that
>> would restrict my expected use of the product then I would take it
>> back.
>
> Or you choose to ignore it.
>
See above.
>> It may not be practical to have the full EULA printed on the box. Would
>> you prefer to read a long document which you then sign at the
>> store counter?
>
> That's more a problem for a vendor who wants to impose conditions and have
> them stick legally.
>
Would you ignore a EULA in a commerical setting?
>>
>> It depends on what is being purchased. You are clearly purchasing
>> some shiny discs. Anything more is an abstraction.
>
> That's likw saying that when you buy a book, you are buying paper.
>
You are. Only the copyright owner cares what you do with that paper. The
licence is granted by the publisher, not by the retailer.
>> If I buy a lawnmower that doesn't mean I can mow the next door
>> neighbour's lawn, because there are laws in place to stop me doing
>> that. What's the difference?
>
> The limits on use aren't dictated by the vendor.
>
They are, and their right to do so is given to them in the Copyright Act.
>> If there is a situation where the copyright laws and TPA laws
>> conflict then the courts will need to resolve that, but how do we
>> know what will happen for the simple EULAs that most people are
>> seeing?
>
> In the real world, the situation is clear enough. Microsoft doesn't
> generally attempt to enforce the EULAs on end-users in the courts in any
> way, anywhere. Instead, they do things to the software that limit, to
> some extent, what the end-user can do as a matter of practice. And
> end-users respond in ways that are well-known.
>
Whether Microsoft chooses to persue end-users is a practical decision of
theirs. Sometimes they do go after the bigger infringers: google LANVA to
see how they sued over distribution of Office. Perhaps such litigation
would be less successful without EULAs.
>>
>> If the EULA said that you can't use the product commercially and
>> there was nothing on the box to indicate this, then you would clearly
>> be allowed to return it. I have first-hand experience of returning
>> software.
>
> Or you just ignore that demand.
>
What if you write an Office document template using the home-use version
which you then sell commerically and it goes world-wide. Microsoft then
analyses it and determines the version used and sues you for the profits you
made. It's not looking good for you if you clicked "I Accept" on the EULA.
>>
>> Whether Microsoft is a model vendor is not the issue. EULAs seem to
>> be standard these days, so like it or not, they have gained some
>> legal power.
>
> They have become the method of bluff of many vendors. You can readily see
> how legally effective they are by the amount of litigation going through
> the courts. Hoe effective the bluff might be is another matter, although
> the bluff is backed by some practical controls.
>
No more a bluff than having a licence condition printed on the inside flap
of a book. What if the book is sealed from opening at the store?
>>
>> What such extraordinary limitations are you talking about? Have you
>> actually read all the way through one?
>
> Yes. Foe example, how much liability will Microsoft accept if the product
> proves defective in a particular instance and causes major loss to an
> end-user?
Isn't that like a sky-diving company springing a contract on you just before
you get on the plane? You can either ask for your money back or sign it.
Epsilon
> "Epsilon" <n...@this.address.com> wrote in message
> news:hmd26v$rs$1...@news.albasani.net...
>>>
>>> Buying the product is probably authority to copy/use it for standard
>>> purposes, but subject to certain conditions which may be revealed
>>> during installation.
>>
>> The vendor can't dictate that those "conditions" be treated
>> seriously. The end-user might choose to ignore them.
>>
>
> At their own peril. If the EULA terms are reasonable and not
> offensive to the TPA then why should they not hold? The fact is that
> software is not like other consumer products because it is
> copyrighted and subject to controls over use.
It is like any other copyrighted thing. It can't be copied. But that's it.
If the copyright holder limits the use of that thing, by using control
measures, the end-user may consider themself free to engage in self-help.
As millions do.
The risk of Microsoft taking anyone to court seeking damages can be readily
assessed by the number of times that Microsoft has done that in the past.
>>> Well, they might be able to. If a EULA contains a strange term that
>>> would restrict my expected use of the product then I would take it
>>> back.
>>
>> Or you choose to ignore it.
>>
>
> See above.
See above.
>>> It may not be practical to have the full EULA printed on the box.
>>> Would you prefer to read a long document which you then sign at the
>>> store counter?
>>
>> That's more a problem for a vendor who wants to impose conditions
>> and have them stick legally.
>>
>
> Would you ignore a EULA in a commerical setting?
No, but for other reasons ie non-legal reasons. BTW, we are not discussing
breach of copyright in the usual way that occurs eg the unauthorised copying
of a copyrighted thing. I have no problem with Microsoft seeking to protect
its copyright in its software in whatever way it can.
>>> It depends on what is being purchased. You are clearly purchasing
>>> some shiny discs. Anything more is an abstraction.
>>
>> That's like saying that when you buy a book, you are buying paper.
>>
>
> You are. Only the copyright owner cares what you do with that paper.
> The licence is granted by the publisher, not by the retailer.
I don't get too many EULAs when buying books.
>>> If I buy a lawnmower that doesn't mean I can mow the next door
>>> neighbour's lawn, because there are laws in place to stop me doing
>>> that. What's the difference?
>>
>> The limits on use aren't dictated by the vendor.
>>
>
> They are, and their right to do so is given to them in the Copyright
> Act.
That's not the issue. The issue is whether EULAs can do that.
>>> If there is a situation where the copyright laws and TPA laws
>>> conflict then the courts will need to resolve that, but how do we
>>> know what will happen for the simple EULAs that most people are
>>> seeing?
>>
>> In the real world, the situation is clear enough. Microsoft doesn't
>> generally attempt to enforce the EULAs on end-users in the courts in
>> any way, anywhere. Instead, they do things to the software that
>> limit, to some extent, what the end-user can do as a matter of
>> practice. And end-users respond in ways that are well-known.
>>
>
> Whether Microsoft chooses to persue end-users is a practical decision
> of theirs. Sometimes they do go after the bigger infringers: google
> LANVA to see how they sued over distribution of Office. Perhaps such
> litigation would be less successful without EULAs.
Of course, and there is no problem with that. Copying an article over which
someone else has copyright is obviously unlawful (assuming no statutory
exceptions/exemptions apply).
>>> If the EULA said that you can't use the product commercially and
>>> there was nothing on the box to indicate this, then you would
>>> clearly be allowed to return it. I have first-hand experience of
>>> returning software.
>>
>> Or you just ignore that demand.
>>
>
> What if you write an Office document template using the home-use
> version which you then sell commerically and it goes world-wide. Microsoft
> then analyses it and determines the version used and sues
> you for the profits you made. It's not looking good for you if you
> clicked "I Accept" on the EULA.
As indicated above, the discussion is not about the normal type of breach of
copyright ie copying someone else's work. In the example you give, I have
no problem with regarding the copier as a thief and with Microsoft suing
them. They don't need to rely on the EULA.
>>> Whether Microsoft is a model vendor is not the issue. EULAs seem to
>>> be standard these days, so like it or not, they have gained some
>>> legal power.
>>
>> They have become the method of bluff of many vendors. You can
>> readily see how legally effective they are by the amount of
>> litigation going through the courts. Hoe effective the bluff might
>> be is another matter, although the bluff is backed by some practical
>> controls.
>
> No more a bluff than having a licence condition printed on the inside
> flap of a book. What if the book is sealed from opening at the store?
Off-topic! See the subject-line.
>>> What such extraordinary limitations are you talking about? Have you
>>> actually read all the way through one?
>>
>> Yes. For example, how much liability will Microsoft accept if the
>> product proves defective in a particular instance and causes major
>> loss to an end-user?
>
> Isn't that like a sky-diving company springing a contract on you just
> before you get on the plane? You can either ask for your money back
> or sign it.
No. You have already bought the Microsoft gear. If it causes a major loss,
the EULA shouldn't limit Microsoft's liability. (I have no example in mind
where a Microsoft product has caused such a loss where Microsoft would be
liable but for the EULA.)
Rod Speed
> Epsilon <n...@this.address.com> wrote
>>> Buying the product is probably authority to copy/use it for standard
>>> purposes, but subject to certain conditions which may be revealed
>>> during installation.
>> The vendor can't dictate that those "conditions" be treated
>> seriously. The end-user might choose to ignore them.
> At their own peril.
Nope, with complete impunity, actually. Just like with those signs that
purport that you have no legal right to a refund under any circumstances.
> If the EULA terms are reasonable and not offensive to the TPA then why should they not hold?
Because there is no agreement with anyone about anything with software sold at retail.
> The fact is that software is not like other consumer products because it is copyrighted
So are books, CDs and DVDs and if anyone was actually stupid enough
to try to claim that you have 'agreed' to not wipe your arse with pages
of the book, or to not use the CD/DVD as a frizzby etc etc etc, they
would find out quick smart that just because they claim that someone
has 'agreed' to that condition is null and void legally.
> and subject to controls over use.
Not anything allegedly 'agreed' to in any purported EULA it aint.
>>> Well, they might be able to. If a EULA contains a strange term that
>>> would restrict my expected use of the product then I would take it back.
>> Or you choose to ignore it.
> See above.
Completely useless, as always.
>>> It may not be practical to have the full EULA printed on the box.
>>> Would you prefer to read a long document which you then sign at the store counter?
>> That's more a problem for a vendor who wants to impose conditions and have them stick legally.
> Would you ignore a EULA in a commerical setting?
Yep. And have done so too.
>>> It depends on what is being purchased. You are clearly purchasing some shiny discs. Anything more is an
>>> abstraction.
>> That's likw saying that when you buy a book, you are buying paper.
> You are.
You are buying rather more than just paper and that is reflected in the price you pay for it too.
> Only the copyright owner cares what you do with that paper.
Doesnt matter if they care or not, you are legally welcome to wipe
your arse with that paper, use it to make paper planes, use it to lite
the fire, scribble all over it etc etc etc if you want to do that with it.
> The licence is granted by the publisher, not by the retailer.
And even the publisher gets no say what so ever on whether you can
wipe your arse with that paper, use it to make paper planes, use it to
lite the fire, scribble all over it etc etc etc if you want to do that with it.
If the publisher doesnt like that, they are welcome to set fire to themselves
outside your place etc as long as there is no fire ban in place etc.
>>> If I buy a lawnmower that doesn't mean I can mow the next door neighbour's lawn, because there are laws in place to
>>> stop me doing that. What's the difference?
>> The limits on use aren't dictated by the vendor.
> They are,
No they arent.
> and their right to do so is given to them in the Copyright Act.
No it isnt.
You are welcome to wipe your arse with that paper, use it to make paper planes,
use it to lite the fire, scribble all over it etc etc etc if you want to do that with it.
>>> If there is a situation where the copyright laws and TPA laws conflict then the courts will need to resolve that,
>>> but how do we know what will happen for the simple EULAs that most people are seeing?
>> In the real world, the situation is clear enough. Microsoft doesn't
>> generally attempt to enforce the EULAs on end-users in the courts in any way, anywhere. Instead, they do things to
>> the software that
>> limit, to some extent, what the end-user can do as a matter of
>> practice. And end-users respond in ways that are well-known.
> Whether Microsoft chooses to persue end-users is a practical decision of theirs.
It is indeed.
> Sometimes they do go after the bigger infringers:
Nope.
> google LANVA to see how they sued over distribution of Office.
Different matter entirely.
> Perhaps such litigation would be less successful without EULAs.
Or perhaps not.
>>> If the EULA said that you can't use the product commercially and
>>> there was nothing on the box to indicate this, then you would
>>> clearly be allowed to return it. I have first-hand experience of
>>> returning software.
>> Or you just ignore that demand.
> What if you write an Office document template using the home-use
> version which you then sell commerically and it goes world-wide.
Microsoft gets to like that or lump it.
> Microsoft then analyses it and determines the version used and sues you for the profits you made.
They'd lose.
> It's not looking good for you if you clicked "I Accept" on the EULA.
Wrong, as always.
>>> Whether Microsoft is a model vendor is not the issue. EULAs seem to be standard these days, so like it or not, they
>>> have gained some legal power.
>> They have become the method of bluff of many vendors. You can
>> readily see how legally effective they are by the amount of litigation going through the courts. Hoe effective the
>> bluff might be is another matter, although the bluff is backed by some practical controls.
> No more a bluff than having a licence condition printed on the inside flap of a book.
Doesnt matter a damn if it claims that claims that you cant wipe your arse with that
paper, use it to make paper planes, use it to lite the fire, scribble all over it etc etc etc
If you choose to do any of that, they cant do a damned thing about that.
> What if the book is sealed from opening at the store?
Irrelevant. Even if they force you to sign a witnessed
'agreement' before they let you buy the book.
>>> What such extraordinary limitations are you talking about? Have you actually read all the way through one?
>> Yes. Foe example, how much liability will Microsoft accept if the
>> product proves defective in a particular instance and causes major
>> loss to an end-user?
> Isn't that like a sky-diving company springing a contract on you just before you get on the plane?
In some respects. If that claims that they arent legally liable if they dont
maintain the plane properly etc, that has no legal effect what so ever.
> You can either ask for your money back or sign it.
Or be aware of your legal rights and realise it doesnt matter what it says.
brenton
>>
>> At their own peril. If the EULA terms are reasonable and not
>> offensive to the TPA then why should they not hold? The fact is that
>> software is not like other consumer products because it is
>> copyrighted and subject to controls over use.
>
> It is like any other copyrighted thing. It can't be copied. But that's
> it. If the copyright holder limits the use of that thing, by using control
> measures, the end-user may consider themself free to engage in self-help.
> As millions do.
>
Copyright law protects licence conditions. The reality is that all
copyrighted works are copied in the process of being used.
If I am granted a licence to show a film on condition that I charge no more
than $5 a head, then that is what I must do or I risk being sued by the
copyright holder.
>>
>> Would you ignore a EULA in a commerical setting?
>
> No, but for other reasons ie non-legal reasons.
What reason other than legal could there be?
>>
>> Whether Microsoft chooses to persue end-users is a practical decision
>> of theirs. Sometimes they do go after the bigger infringers: google
>> LANVA to see how they sued over distribution of Office. Perhaps such
>> litigation would be less successful without EULAs.
>
> Of course, and there is no problem with that. Copying an article over
> which someone else has copyright is obviously unlawful (assuming no
> statutory exceptions/exemptions apply).
>
If then it's the liability disclaimers you don't like then you are free to
choose another product. If you've already bought it then take it back.
It's just not practical to be reading EULAs at the store.
>>
>> What if you write an Office document template using the home-use
>> version which you then sell commerically and it goes world-wide.
>> Microsoft then analyses it and determines the version used and sues
>> you for the profits you made. It's not looking good for you if you
>> clicked "I Accept" on the EULA.
>
> As indicated above, the discussion is not about the normal type of breach
> of copyright ie copying someone else's work. In the example you give, I
> have no problem with regarding the copier as a thief and with Microsoft
> suing them. They don't need to rely on the EULA.
>
They may do. It's not clear how that specific licence condition could be
agreed upon other than the EULA.
>>
>> No more a bluff than having a licence condition printed on the inside
>> flap of a book. What if the book is sealed from opening at the store?
>
> Off-topic! See the subject-line.
>
It's an analogy.
>>>
>>> Yes. For example, how much liability will Microsoft accept if the
>>> product proves defective in a particular instance and causes major
>>> loss to an end-user?
>>
>> Isn't that like a sky-diving company springing a contract on you just
>> before you get on the plane? You can either ask for your money back
>> or sign it.
>
> No. You have already bought the Microsoft gear. If it causes a major
> loss, the EULA shouldn't limit Microsoft's liability. (I have no example
> in mind where a Microsoft product has caused such a loss where Microsoft
> would be liable but for the EULA.)
Can you think of another practical way to bind customers to licence
conditions?
Rod Speed
> Epsilon <n...@this.address.com> wrote
>>> At their own peril. If the EULA terms are reasonable and not offensive to the TPA then why should they not hold?
>>> The fact is that software is not like other consumer products because it is> copyrighted and subject to controls
>>> over use.
>> It is like any other copyrighted thing. It can't be copied. But that's it. If the copyright holder limits the use
>> of that thing, by using control measures, the end-user may consider themself free to engage in self-help. As millions
>> do.
> Copyright law protects licence conditions.
Like hell it does.
> The reality is that all copyrighted works are copied in the process of being used.
That is just plain wrong with books and CDs and DVDs.
> If I am granted a licence to show a film on condition that I charge no more than $5 a head, then that is what I must
> do or I risk being sued by the copyright holder.
Wrong, as always. The copyright act says nothing like that.
>>> Would you ignore a EULA in a commerical setting?
>> No, but for other reasons ie non-legal reasons.
> What reason other than legal could there be?
He might agree with what the vendor wants.
>>> Whether Microsoft chooses to persue end-users is a practical
>>> decision of theirs. Sometimes they do go after the bigger
>>> infringers: google LANVA to see how they sued over distribution of
>>> Office. Perhaps such litigation would be less successful without EULAs.
>> Of course, and there is no problem with that. Copying an article
>> over which someone else has copyright is obviously unlawful
>> (assuming no statutory exceptions/exemptions apply).
> If then it's the liability disclaimers you don't like then you are free to choose another product.
You are also free to ignore any purported EULA too.
> If you've already bought it then take it back.
No thanks, I'll ignore the purported EULA instead.
Just like I ignore signs that claim that I am not entitled to a refund
under any circumstances. I know that that is a lie and just ignore it.
> It's just not practical to be reading EULAs at the store.
Completely trivial to read it online before going anywhere near the store.
Even you should be able to manage that.
>>> What if you write an Office document template using the home-use
>>> version which you then sell commerically and it goes world-wide.
>>> Microsoft then analyses it and determines the version used and sues
>>> you for the profits you made. It's not looking good for you if you
>>> clicked "I Accept" on the EULA.
>> As indicated above, the discussion is not about the normal type of
>> breach of copyright ie copying someone else's work. In the example
>> you give, I have no problem with regarding the copier as a thief and
>> with Microsoft suing them. They don't need to rely on the EULA.
> They may do.
Nope, because no one has agreed to a damned thing.
> It's not clear how that specific licence condition could be agreed upon other than the EULA.
They could get you to sign a real agreement.
>>> No more a bluff than having a licence condition printed on the inside flap of a book. What if the book is sealed
>>> from opening at the store?
>> Off-topic! See the subject-line.
> It's an analogy.
No it isnt, its a complete wank. Or more strictly an incomplete wank, no sense.
>>>> Yes. For example, how much liability will Microsoft accept if the
>>>> product proves defective in a particular instance and causes major
>>>> loss to an end-user?
>>> Isn't that like a sky-diving company springing a contract on you
>>> just before you get on the plane? You can either ask for your
>>> money back or sign it.
>> No. You have already bought the Microsoft gear. If it causes a
>> major loss, the EULA shouldn't limit Microsoft's liability. (I have
>> no example in mind where a Microsoft product has caused such a loss
>> where Microsoft would be liable but for the EULA.)
> Can you think of another practical way to bind customers to licence conditions?
You can get them to sign an agreement.
Corse that STILL doesnt allow you to impose anything you like, it still has to consider australian law.
brenton
"Rod Speed" <rod.sp...@gmail.com> wrote in message
news:7uvq60...@mid.individual.net...
>
>>> No. You have already bought the Microsoft gear. If it causes a
>>> major loss, the EULA shouldn't limit Microsoft's liability. (I have
>>> no example in mind where a Microsoft product has caused such a loss
>>> where Microsoft would be liable but for the EULA.)
>
>> Can you think of another practical way to bind customers to licence
>> conditions?
>
> You can get them to sign an agreement.
>
> Corse that STILL doesnt allow you to impose anything you like, it still
> has to consider australian law.
Vendors are limited by other laws such as the TPA and the rulings of courts,
but reasonable and appropriate licence conditions are likely to be held up
in Australia.
Rod Speed
> Rod Speed <rod.sp...@gmail.com> wrote
>>>> No. You have already bought the Microsoft gear. If it causes a major loss, the EULA shouldn't limit Microsoft's
>>>> liability. (I
>>>> have no example in mind where a Microsoft product has caused such a loss where Microsoft would be liable but for
>>>> the EULA.)
>>> Can you think of another practical way to bind customers to licence conditions?
>> You can get them to sign an agreement.
>> Corse that STILL doesnt allow you to impose anything you like, it still has to consider australian law.
> Vendors are limited by other laws such as the TPA and the rulings of courts, but reasonable and appropriate licence
> conditions are likely to be held up in Australia.
And its very far from clear that the sillier stuff like software
having to stay with the hardware it was bought with is either.
Terry Thompson
That would be a matter for the courts to decide. You wouldn't want to set
up a business that removed protection measures from OEM software, would you?
Epsilon
Only if a software vendor chose to do that. You might have some difficulty
in finding details of any litigation between a vendor and an end-user.
> You wouldn't want
> to set up a business that removed protection measures from OEM
> software, would you?
Why? If you want to set up a hypothetical like that, surely you should
refer to the law you have in mind?
Rod Speed
>>>>>> No. You have already bought the Microsoft gear. If it causes a major loss, the EULA shouldn't limit Microsoft's
>>>>>> liability. (I
>>>>>> have no example in mind where a Microsoft product has caused
>>>>>> such a loss where Microsoft would be liable but for the EULA.)
>>>>> Can you think of another practical way to bind customers to licence conditions?
>>>> You can get them to sign an agreement.
>>>> Corse that STILL doesnt allow you to impose anything you like, it still has to consider australian law.
>>> Vendors are limited by other laws such as the TPA and the rulings of
>>> courts, but reasonable and appropriate licence conditions are
>>> likely to be held up in Australia.
>> And its very far from clear that the sillier stuff like software
>> having to stay with the hardware it was bought with is either.
> That would be a matter for the courts to decide.
Nope, Microsoft isnt actually stupid enough to let any court decide that.
> You wouldn't want to set up a business that removed protection measures from OEM software, would you?
Plenty with a clue just ignore the purported EULA.