Relay-Version: version B 2.10 5/3/83; site utzoo.UUCP Posting-Version: Notesfiles $Revision: 1.7.0.10 $; site uiucuxa Path: utzoo!watmath!clyde!burl!ulysses!mhuxr!mhuxt!houxm!ihnp4!inuxc!pur-ee!uiucdcs!uiucuxc!uiucuxa!rp321 From: rp321@uiucuxa.CSO.UIUC.EDU Newsgroups: net.micro Subject: Re: Your software rights are in danger Message-ID: <9400011@uiucuxa> Date: Sat, 14-Dec-85 17:43:00 EST Article-I.D.: uiucuxa.9400011 Posted: Sat Dec 14 17:43:00 1985 Date-Received: Mon, 16-Dec-85 03:57:58 EST References: <9400009@uiucuxa> Lines: 157 Nf-ID: #R:uiucuxa:9400009:uiucuxa:9400011:000:4707 Nf-From: uiucuxa.CSO.UIUC.EDU!rp321 Dec 14 16:43:00 1985 [ still more food for thought ] Here is the second discussion of the Illinois Software License Enforcement Act, by Keith Hays, Grosser and Hays Law Offices, Champaign, IL. Taken from the Tranquillity II BBS, Urbana, IL, (217)384-8173. (from the Magazine section) Russell J. Price USnail: 1111 S. Arbor St. Champaign, IL 61820 /// / Q II ------------------- | | | | THE | The Bar | | | | | | at _LAW_ & _YOU_ | OLD BAILEY | ||||||| ---------------------------------------- The Illinois Software License Enforcement Act, an Anaysis --< Dec 8 1985>- The Illinois Software License Enforcement Act (approved Sept. 25, 1985, effective July 1, 1986) imposes the provisions of a contract by operation of law upon the purchaser of computer software. The law often imposes duties and confers rights upon contracting parties, but in most instances where it does so, those provisions are spelled out by the legislation and provision is made for the exclusion of those terms by the parties in their formation of the contract between them. The provisions of the Uniform Commercial Code concerning the imposition of express and implied Warranty are an example. In this case, the specific terms of the contract which the law imposes are not specified by the legislation, but rather are left to the discretion of the dominate party in the transaction. The legislation permits the software manufacturing concern to draft its own contract and imposes those terms by operation of law. In analysing the effect of the law we must assume that the software manufacturer will impose the most restrictive provisions that are permitted. With that in mind, the following is an analysis of the provisions Section 4 of the Act. Paragraph 1 of the Act insures that title to the software will never pass to the purchaser. This provision will operate in all instances to define the transaction between the manufacturer, retailer and user as a licensing transaction. The impact of this definition has more far reaching consequences than the question of controlling software piracy. The definition of the transaction as a license rather than as a sale will render the provisions of the Uniform Commercial Code inapplicable to the software marketplace unless it is accompanied with additional legislation to protect the user. Paragraph 2 imposes an outright ban on making copies of the software for any purpose. In my view the provisions of Section 7 with regard to the effect of general copyright laws does not alter the effect of this provision. It is axiomatic that the partes may alter the rights provided for by the general law by contract. The provisions of this section are specific to the question of copies and would be construed to limit notions of fair use and the right to make copies. Unless it is the purpose of the legislature to abrogate the general copyright law of the U.S., then this section should read: "Except as permitted by rights granted under the copyright laws of the United States,***". Paragraph 3 limits the right to customise the software to your own purposes. As an example, programs developed for the IBM-PC could not be purchased and adapted for use on the Tandy 1000, even though the purchaser paid the full price for the program and intended only to run it on his own machine. The development of patches and enhancements to published software would be unlawful. Public Domain patches would be a thing of the past. Paragraph 4 would prohibit the transfer of programs by the original retail purchaser. Software libraries could not be sold or given away with the sale of a used computer. Under the terms of the Act, this section's limitation would apply to even to sofware installed in ROM by the equipment manufacturer. It would be unlawfull to sell your used TRS-80 Model 100. Paragraph 5 limits the use of purchased software to one user at one computer. It would make unlawful the purchase of one program disc by a two man office. Paragraph 6 permits confiscation without notice of the program you bought if the manufacturer discovered a violation of any of these terms. Paragraph 7 provides that the user will pay the cost of the company suing the individual user. This provision encourages the manufacturer to file suit against the user for even the most petty violation of the license "agree- ment!" L KEITH HAYS Grosser and Hays Law Office 702 Bloomington Rd Champaign IL 61820 (217) 352-2784