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From: mwm@eris (Mike (My watch has windows) Meyer)
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: <6818@agate.BERKELEY.EDU>
Date: 2 Feb 88 01:36:57 GMT
References: <6784@agate.BERKELEY.EDU> <6606@oberon.USC.EDU>
Sender: usenet@agate.BERKELEY.EDU
Reply-To: mwm@eris.UUCP (Mike (My watch has windows) Meyer)
Followup-To: comp.sys.misc
Organization: Missionaria Phonibalonica
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fExpires:


[I'm still trying to point followups to comp.sys.misc...]

In article <6606@oberon.USC.EDU> papa@pollux.usc.edu (Marco Papa) writes:
<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:

I expected that. That someone would share information with those who
oppose them is - by it's very nature - hard for people who like
shareware to understand.

<>	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.

Sorry, but the first is things as I discover them to be. The latter is
true whether you use a fascist agreement or not. If you're fascist,
you use the law to intimidate people. If you're not fascist, you're
using the american work ethic to intimidate them.

<But again, let's not process Mike's intentions (I apologize in advance,
<Mike, if I misinterpreted), and go to the details.

Apologies accepted. I'd also like to apologize for letting my
political beliefs show up in the terminology. But that's as far as I
let them influence me.

Let's look at what happened: I said that shareware agreements were not
enforcable - making analogies to the unsolicited goods through the
mail, and shrinkwrap license agreements. So I consulted a lawyer.

The information is as I gave it earlier - until the laws are tested,
you can't really *insure* that you can get legal protection for your
shareware. Following the guidelines I posted gets you the best chance
of that. And yes, I asked the lawyer about the mail & shrinkwrap
analogies, and got told "they don't apply."

<>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 <whoever you are> 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.

No, here's where I goofed. I should have pointed out that not
including a real license agreement seriously lessens your chance of
having the shareware agreement honored in a court of law. I didn't
mean to imply otherwise.

<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.

There's a key point you seem to have missed - the license agreement
allows you to use the program without having to register. It provides
for a "trial period." Though you may not be able to collect damages in
that case, you can force the user to either register or stop using the
program.

Being fascist about the wording everywhere will improve those chances.

<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.

My lawyers disagrees with you.

<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).

That's indeed a good way to get *money* out of a shareware program.
But I wasn't covering that topic - I was talking about legal
enforcement. I haven't actually looked into good ways to get money
from shareware (topic is not of interest), I didn't feel it
appropriate to go into that.

<>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.

You've pointed out at least two problems - I need to make it clear
that this is untested in a court, and to state explicitly that not
having a real license agreement lessens the enforceability of the
shareware agreement.

Note: since Marco dropped the copyright notice (naughty, naughty), the
parts of the posting I had originally copyrighted that he posted are
now more trouble to copyright than it takes. They may be considered to
be in the public domain.

	Thanx,
	<mike
--
It's been a hard day's night,				Mike Meyer
And I been working like a dog.				mwm@berkeley.edu
It's been a hard day's night,				ucbvax!mwm
I should be sleeping like a log.			mwm@ucbjade.BITNET