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From: erik@westworld.esd.sgi.com (Erik Fortune)
Newsgroups: comp.sys.ibm.pc.misc
Subject: Re: LEGALITY OF SELLING SOFTWARE
Message-ID: <1991Feb13.214058.2930@odin.corp.sgi.com>
Date: 13 Feb 91 21:40:58 GMT
References: <3929@orbit.cts.com> <38899@cup.portal.com>, <MbiDNuO00Uh_A1D7gN@andrew.cmu.edu>
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Reply-To: erik@westworld.esd.sgi.com (Erik Fortune)
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In article <MbiDNuO00Uh_A1D7gN@andrew.cmu.edu>, jm9t+@andrew.cmu.edu (Josh Brian Mastronarde) writes:
>Um, for this to be valid, wouldn't I have to agree to the license
>*before* I purchased the software?  What if I don't agree to the terms? 
>"Agreement" implies that I have a choice of either agreeing to the
>terms, or walking away from the deal.  Last I checked, most software
>houses charged a 15% restocking fee for software.  But Microsoft will
>gladly refund the full purchase price if I don't like the license,
>right?  I didn't think so.  Take for example any other contract
>situation.  When I buy a house, until I actually *sign* any papers, I
>can abort the deal with no expense, right?  (Not including lawyer, bank,
Actually, most of the software that I have which bothers with this
type of licensing says "if you do not accept these terms, return the
unopened package for a full refund."
    
>I think the key here is that I purchase the software *before* the
>license is pointed out to me.  I consider the act of purchasing
>something to be an agreement in and of itself.  I fork over money to
>someone and in return I expect free and full use and ownership of
>something (provided that the sale is legal in the first place).  Of
>course this use is restricted by *government* laws (such as restrictions
>on concealed weapons, radar detectors, copyright laws, etc).
When purchasing software, I pretty much assume that I can use it
but can't give free copies away to my friends.   I always check the
license to make sure that there aren't any other, non-standard and
more odious clauses (like anything you develop using our compiler
generator is our property, for example).

>While it might be possible to enact an agreement without a signature, it
>would have to take place BEFORE the purchase took place.  That is,
>without a contract prior to sale (whether verbal or oral), the contract
>of sale is the binding agreement of the transaction, not whatever
>gibberish Microsoft prints inside the package to scare people into
>believing them.  
The sale is an agreement, but the terms are not explicit.   The license
in the package makes the terms explicit.   I don't think you would have
a problem contesting a shrink-wrap contract that said "open this package
and you owe us your house," for example because it's pretty clearly
unreasonable.    As the terms get more reasonable (e.g. "if you upgrade,
destroy the old copy") I think it gets harder and harder to contest
the contract.  When you get to "don't give free copies to your friends,"
I think the contract is uncontestible.

Be careful.   Piracy is a problem.   If enough people insist that anything
that isn't signed isn't binding, then the amount of red tape we need to
deal with to buy (major) software packages is likely to increase a lot
in the next few years.

-- Erik