I am getting sick and God damned tired of doing all the intellectual work and playing Daddy to you, Larry. Every single one of our debates goes something like this...
I spend two f-cking hours of my time researching and providing all relevant documentation, make you look like an idiot, and you never say "Oh, my bad, thanks for educating me" then keep your mouth shut about things you clearly know nothing about. Instead, you slink off without comment, hide for a month or two, then we repeat the process again.
Don't you ever get tired of getting your ass handed to you?
What is Software Licensing?
Allowing an individual or group to use a piece of software.
Nearly all applications are licensed rather than sold. There are a variety of different types of software licenses. Some are based on the number machines on which the licensed program can run whereas others are based on the number of users that can use the program. Most personal computer software licenses allow you to run the program on only one machine and to make copies of the software only for backup purposes. Some licenses also allow you to run the program on different computers as long as you don't use the copies simultaneously.
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What is a software license?
Software is protected by copyright law, which states that a product cannot be copied without the permission of the copyright holder. A software license grants you the legal right to use a piece of software. You only own the license to use that piece of software - not the software itself.
Your End-User License Agreement is a contract between you and Microsoft (or the original equipment manufacturer if your software was preinstalled), describing how you can use the software.
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It Pays To Read License Agreements
You may wonder whether these licenses are legal. Most of them do hold up in court as long as they are reasonably clear, according to Parry Aftab, an attorney specializing in Internet privacy and security law (
www.aftab.com).
"The courts have said that if you click on something saying 'I agree' then it's legal consent."
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A User's Guide to EULAs
By Annalee Newitz
Electric Frontier Foundation
We've all seen them ? windows that pop up before you install a new piece of software, full of legalese. To complete the install, you have to scroll through 60 screens of dense text and then click an "I Agree" button. Sometimes you don't even have to scroll through to click the button. Other times, there is no button because merely opening your new gadget means that you've "agreed" to the chunk of legalese.
They're called End User License Agreements, or EULAs. Sometimes referred to as "shrinkwrap" or "click-through" agreements, they are efforts to bind consumers legally to a number of strict terms ? and yet you never sign your name. Frequently, you aren't even able to see a EULA until after you've purchased the item it covers.
Although there has been some controversy over whether these agreements are enforceable, several courts have upheld their legitimacy.
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National Conference of Commissioners on Uniform State Laws (NCCUSL) - UCITA and Software Licensing FAQ
Q: WHAT IS A LICENSE?
A:
A license is simply a contract. It gives the licensee
rights to use information rights owned by somebody else. Licenses allow transactions to fit the rights and the price for information to the interests of the licensee. A consumer may license the right to use a database for consumer purposes for $5; a business might license the right to use the same database for commercial purposes for $10,000.
Q: DOES UCITA RADICALLY CHANGE ENFORCEMENT OF STANDARD FORM LICENSES?
A: No.
Reported court decisions today enforce shrink-wrap, onscreen and other forms of modern automated contracting, if they comply with contract concepts similar to UCITA and, indeed, some cases allow contract formation without the protections that UCITA creates.
An allegation that these contracts would be unenforceable without UCITA is simply wrong.
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What Have You Signed Away Today?
Consider the case of M.A. Mortenson, a contracting firm that sued Timberline Software of Oregon; the suit alleged that defects in a Timberline bid-preparation program caused Mortenson to make a $1.95 million bidding error.
Last year, the Washington State Supreme Court ruled that Timberline was not liable for the buggy program--despite the fact the company knew about the bug before putting the software on the market.
The reason: Timberline's EULA exempted the company from responsibility "for any damages of any type" resulting from use of its products. [Note: Washington is not a UCITA state]
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Just-In-Time Click-Through Agreements: Facilitating User Understanding and Confirming Informed, Unambiguous Consent
The most common method for supporting consent in computer applications is a "user agreement". When you have installed new software on your computer, or signed-up for an Internet service, you have undoubtedly seen an interface screen that presents a User Agreement or Terms of Service. In order to continue, you have had to click on an "I Agree" button or an equivalent label. These interface screens are commonly called "click-through agreements" because the users must click through the screen to get to the software or service being offered [5]. (An alternative label is "click-wrap agreement", in parallel to more traditional "shrink-wrap" agreements attached to software packaging.) These agreement screens are an attempt to provide the electronic equivalent of a signed user agreement or service contract [4]. By clicking on the "Agree" button, the user is confirming their understanding of the agreement and indicating consent to any terms or conditions specified in the accompanying text.
The legality of these click-through screens in forming the basis of a legal agreement or contract has been established...
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Click Wrap Agreements - Enforceable Contracts or Wasted Words?
THE LATER CASES
More recent cases have held that once the consumer has the opportunity to read the terms of the license agreement, even if that chance is after he or she purchased the software, use of the product equals acceptance of the terms. In other words, giving the consumer a fair, albeit limited, opportunity to return the product strikes a happy medium between consumer and industry protection.
In ProCD, Inc. v. Zeidenberg,
the court held that "shrink-wrap licenses are enforceable unless their terms are objectionable on grounds applicable to contracts in general."
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Ibid
Hill v. Gateway 2000, Inc. also found shrink-wrap agreements enforceable. This case deals with the enforceability of preprinted form contracts shipped with goods ordered by telephone.
The court held that the Hills had to follow the terms set forth in the licensing agreement because the Hills accepted those terms by using the computer. The court said that although the Hills did not read the agreement, "[a] contract need not be read to be effective; people who accept take the risk that the unread terms may in retrospect prove unwelcome."
This case is seen as a clear victory for Gateway and shrink-wrap agreements.
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Ibid
Another case in which the court found a click-wrap agreement to be valid and enforceable was the Storm Impact v. Software of the Month Club case. Here,
a federal district court judge held that the express reservation of rights displayed in a user's click-wrap agreement on a computer screen was valid and enforceable.
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Ibid
One of the more recent click-wrap cases is Caspi v. Microsoft Network, L.L.C. In this case, the plaintiff was prompted to view multiple computer screens of information, including the membership agreement containing the forum selection clause before subscribing to Microsoft's online service. The potential members had the option to click on "I agree" or "I don't agree," depending on whether or not they agreed to the terms of the agreement.
The court refused to hold the forum selection clause unenforceable on the grounds that if it did, the entire agreement would be invalidated, since all provisions were presented in the same manner.
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Ibid
In direct line with Caspi came the most recent click-wrap cases that include In Re Realnetworks, Inc. and American Eyewear v. Peeper's Sunglasses. In the first of the cases, In Re Realnetworks, Inc., the plaintiffs brought a claim alleging trespass to property and privacy regarding their use of the defendant's computer network. The plaintiffs claimed that the license agreement did not constitute a "writing" because the arbitration clause should be interpreted narrowly in favor of the plaintiffs, and that the arbitration clause should be unenforceable because it would be unconscionable to decide otherwise. The court used traditional contract law and rules of civil procedure to resolve the issues of the case.
The court held that the arbitration clause in the defendant's click-wrap agreement was enforceable because words in a contract are interpreted by their plain meaning. Furthermore, the arbitration clause was not buried in fine print that would normally render such a clause unenforceable, but instead, was presented in a manner that gave a user ample opportunity to read and understand the provisions within the contract.
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Ecommerce: An Introduction, Transactions
In the landmark ProCD case, the Seventh Circuit Court of Appeals held that the defendant was bound by the terms of the shrink-wrapped license prohibiting commercial use of the software. The license was only inside the box but there was a notice on outside referring to the license. The Court held that by using the software after opening the shrink wrap, the defendant had manifested assent to the contract as is required under the Uniform Commercial Code.
This precedent has been extended to the Internet and clickwraps in a series of cases. In Hotmail Corporation v. Van Money Pie, Inc. (Website) (Hotmail) the court upheld the validity of a clickwrap agreement that prohibited the use of Hotmail e-mail accounts for transmitting unsolicited mass e-mail. In Groff v. America Online, Inc. (AOL) (Website) (Groff) the court upheld a forum selection clause contained within AOL's clickwrap user agreement. See also Caspi v. The Microsoft Network (Website) (Caspi) (upholding forum selection clause in Microsoft Network subscriber agreement which the user was required to click "I agree" next to the scrollable window containing the agreement.)
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NVIDIA Software EULA
GRANT OF LICENSE
2.1 Rights and Limitations of Grant.
NVIDIA hereby grants Customer the following non-exclusive, non-transferable right to use the SOFTWARE, with the following limitations...
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Cisco SOFTWARE LICENSE AGREEMENT
BY CLICKING ON THE "ACCEPT" BUTTON, OPENING THE PACKAGE, DOWNLOADING THE PRODUCT, OR USING THE EQUIPMENT THAT CONTAINS THIS PRODUCT, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "DO NOT ACCEPT" BUTTON AND THE INSTALLATION PROCESS WILL NOT CONTINUE, RETURN THE PRODUCT TO THE PLACE OF PURCHASE FOR A FULL REFUND, OR DO NOT DOWNLOAD THE PRODUCT.
Single User License Grant: Cisco Systems, Inc. ("Cisco") and its suppliers grant to Customer ("Customer") a nonexclusive and nontransferable license to use the Cisco software ("Software") in object code form solely on a single central processing unit owned or leased by Customer or otherwise embedded in equipment provided by Cisco.
Multiple-Users License Grant: Cisco Systems, Inc. ("Cisco") and its suppliers grant to Customer ("Customer") a nonexclusive and nontransferable license to use the Cisco software ("Software") in object code form...
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MICROSOFT WINDOWS XP HOME EDITION (RETAIL) END-USER LICENSE AGREEMENT
IMPORTANT-READ CAREFULLY:
This End-User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and Microsoft Corporation for the Microsoft software that accompanies this EULA, which includes computer software and may include associated media, printed materials, "online" or electronic documentation, and Internet-based services ("Software"). An amendment or addendum to this EULA may accompany the software. YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE; YOU MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND, IF APPLICABLE.
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I turned-up about 20 more citations if you need them. Even the Electronic Frontier Foundation says you're wrong and I'm right.
Questions?
