Xref: utzoo comp.sys.amiga:13825 comp.sys.misc:1079 comp.sys.ibm.pc:11238 comp.sys.mac:11849 comp.sys.atari.st:7225 Path: utzoo!mnetor!uunet!lll-winken!lll-lcc!ames!ll-xn!oberon!pollux.usc.edu!papa From: papa@pollux.usc.edu (Marco Papa) Newsgroups: comp.sys.amiga,comp.sys.misc,comp.sys.ibm.pc,comp.sys.mac,comp.sys.atari.st Subject: Re: Guidelines on legal protection for shareware & freeware Message-ID: <6606@oberon.USC.EDU> Date: 30 Jan 88 20:31:11 GMT References: <6784@agate.BERKELEY.EDU> Sender: news@oberon.USC.EDU Reply-To: papa@pollux.usc.edu (Marco Papa) Organization: University of Southern California, Los Angeles, CA Lines: 190 In accord to Mike copying restrictions: >The whole of the document may be freely redistributed. Parts may be >freely redistributed so long as the disclaimer and the list of the >evils of shareware are included with those parts. You will find the above at the end of my reply. After reading the message, I was kind of puzzled. Mike, a known "hater" of shareware, giving guidelines on how to protect shareware and help make money off it? Strange! But after reading the licensing notice he suggests including in the shareware program: >"Use of this product without returning the license agreement and registration >fee is a crime." and > Be as explicit and fascist as possible about licensing. I came to the conclusion that he just wants to have some stupid shareware author to exactly follow one of his "shareware evils": > 3) It uses intimidation to coerce money from people. But again, let's not process Mike's intentions (I apologize in advance, Mike, if I misinterpreted), and go to the details. >The guidelines are based on a study of the copyright laws, and discussions ] >with lawyers. As is usual for software, the laws are still unclear, and >there has not been a precedent covering what is and isn't correct. >The fact that there is no precedent I believe implicitly that knowledge >should be shared, and I possess knowledge that it seems many will find useful. Part of your document shows knowledge, part just shows guessing bordering on misinformation (my personal opinion, which I'll try to substantiate with my reply). >Therefore, I'm going to >give guidelines on what to do to shareware products so that you have a >hope of extracting funds from non-registered users in a court of law. >You are also going to have to listen to my lecture on what public >domain really means. Why don't we start by defining that? Well done run down on the public domain/copyrighted/restricted issues. >Note that a statement "this is in the public domain, not for >commercial use" is self-contradictory. The document in question is in >the public domain, and available for commercial use. I just downloaded two programs from comp.sources.amiga with that STUPID notice. Hey, you guys that wrote that. I can tell you right now that I feel free to do anything with it. If I find it useful I will use it in a commercial product of mine, and will definitely copyright the resulting code with MY name on it. And you won't be able to do anything about it! Got it! :-) >As an aside, in the context of shareware and freeware, "publish" means >making available to others - uploading to a BBS, posting to USENet, or >sending to a software library would all constitute publishing. This is very important. From that date the author has 3-months to register with the Copyright Office to be able to subsequently claim statutory and not just "actual" damages. > Of course, you need to know what a valid copyright notice is. All is well on this. If one wants more, get the "Circular R1 -- Copyright Basics" from the Copyright Office, Library of Congress, Washington, D.C. 20559. >I'll point out that after the copyright notice you can place >a notice allowing redistribution under specific conditions. A common >thing to see here is "This code may be freely redistributed so long as >it is not included as part of any commercial product" or words to that >affect. This is definitely enforceable by the courts (More at the end of my message). >If you still want to make money off it, instead of donating it to the >good of society, you need one more thing - a license agreement. Here is where the sticky part starts. The copyright issues are ended, and Mike goes into the "Licensing Agreements" issues, a MUCH different subject. >The best thing to do is to have a specific license agreement that must >be printed, signed and returned with a check. This is still OK. "Licensing Agreements" should be signed by BOTH parties that are included in the agreement. This is usually the case for mainframe and minicomputer software. BEFORE getting the software, the purchaser has to sign the agreement, and return it with the proper payment. With microcomputer software the story is different. Given the large quantities and the different distribution channels, almost all publishers now use the "Shrink-wrap licensing agreement". The agreement is either printed on the outside of the shrink-wrapped package or the diskettes are inside a sealed envelope. One has to PHYSICALLY break some type of seal to USE the program, and to break the seal, he/she MUST have read the licensing agreement. Most agreements say something like this: "Breaking the seal on the envelope indicates that you accept this agreement and will abide by it. If you do not agree with the license, return the complete software product to the dealer where purchased". Usual agreements require an limited amount of backupus (if any) and use on a limited number (usually 1) of cpus at any one time. Note that the "Shrink-Wrap Licensing Agreement" has never been tried in courts, and therefore it is not clear whether it will stand or not. Moreover, not being connected with any Federal law, each state could decide in his/her own way. >Then near the copyright >notice put a notice stating something like "Use of this product >without returning the license agreement and registration fee is a >crime." >Should the license agreement seem to much to add to the product, just >place a notice like "Use of this product without registration by >sending $# to is a crime." Once again, be specific - >give a number of trial uses, or the length of a trial period. This is where Mike's arguments die. He suggests a kind of even looser "licensing agreement" that does not include the "break-seal or open-shrink-wrap" action. Note that the "shrink-wrap" agreement is based on the fact that one opens the seal AFTER having read the agreement, and BEFORE using the product. The breaking of the seal is also an undeniably PHYSICAL action. With shareware that is not possible, unless one can prove that whoever gets the software sees the "shareware license agreement" BEFORE downloading it from a BBS, getting it from a friend, or by other means. Even including the "shareware licensing agreement" in a LICENSE file on a BBS won't do any good, unless the sysop enforces the rule that you have to download the licence BEFORE you download the program; clearly unenforceable with current BBS software. Also including the LICENSE file as part of a library ARC file that contains the executable won't do any good, since NOBODY will be able to prove that I read the agremeent BEFORE I use the program. Thirdly, flashing the licensing agreement each time the program is started is also useless, since that is done AFTER you got the program, not BEFORE. Therefore, you are in NO obligation to follow it. Considering the questions on the legality of the "shrink-wrap" licensing agreement, ther is NO chance that the even looser "shareware agreement" that Mike is suggesting will help anybody to recover any money at all. Most shareware authors for the IBM PC have clearly understood this, and try to make their money by providing "extras" with the "registration" of the program, which usually includes a new BETTER version of the program and printed documentation (ZCOMM/Pro-Yam, PC-FILE, PC-TALK III are examples of this). Another possibility is "selling" technical support (I believe ButtonWare does this). >Of course, corrections to any of the suggestions above will be >gratefully accepted. Suggested improvements in the document as a whole >would also be appreciated. You've got them. My point is that your proposed "shareware license" is basically useless from a legal standpoint. And I did not even consider the enforceability of such an agreement. Going back to the Copyright issues, this is an area where laws are clearer and there are precedents. One issue, for example, concerns a variety of outlets that repackage "shareware", putting multiple programs on the same disk, and SELLING the result. If the shareware software is properly copyrighted and registered, and includes proper restrictions, one can easily sue these companies, stop them from distributing "illegally" your software, and possibly recover court-awarded damages. This has been done. Even if I do not agree with some of Mike's arguments, I do commend him for raising the issues. -- Marco Papa -------------- As requested, here they are: > Disclaimer: These guidelines not guaranteed to be correct. > Follow them at your own risk. > Among the evils of shareware are: > 1) It violates the hacker ethic. > 2) It uses channels of distribution originally > intended for freeware, without compensation to > or permission of the people who run those > channels. > 3) It uses intimidation to coerce money from people. > 4) It entices them to break the law.