Talk:Software license agreement

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[edit] FIXME

I don't know much about law, but that (FIXME) thing has to go. --cprompt

I've removed the (FIXME) tags, I don't know if I could have been more specific but the change covers what was originally missing. -- Al b

[edit] Enforceability

The enforceability of these license is actually in dispute see New York v. Network Associates d/b/a McAfee Software, SoftMan v. Adobe, Novell, Inc. v. CPU Distrib., Inc., Vault v. Quaid, Step-Saver Data Systems, Inc. v. Wise Technology, about 2 or three dozen cases where a sale of software is consider a sale under the UCC, and there is much more.

The enforcible in the U.S., if enforceable at all, of such shrink wrap licenses depends on three factors;

1. Does the license preempt first amendment guarantees and other guarantees under the US Constitution, EG; does it restrict your freedom of speech such as in Network Associates where the EULA didn't allow users to write disparaging, but true, things about the software.

2. Does the license preempt federal law EG; Copyright law See Softman V. Adobe. . Remember with the exception of the GPL and other free licenses it is a contract, State Law, as you did not purchase the software- See Step-Saver Data Systems v. Wise Technology, Mai, and Microsoft v. Harmony to see why software is licensed and not sold (To Basically Preempt first sale doctrine and other limitations and exemptions to copyright). Depending on which court the case is heard in the Judge may or May not allow the argument that Contract Law can Supersede Federal Law. SCO v. IBM is a paradox because they are arguing both ways. They argue, not that this is correct, that the GPL is unenforceable because the the FSF through the GPL and not Congress dictated the terms thus any works released under the GPL is in Public Domain through the principles of Latches while at the same time arguing that IBM can not give code to the Open and Free Source communities, in particular the Linux communities, because the contract between ATT and IBM has a derivative clause in it.

3. Does the License conform to UCC or where passed UCITA for a contract.

A side note is that these contracts are challenged, sometimes successfully, all the time.

Also may be a good idea to write about the history of these licenses and also point out that the term Use, as in the AT&T license on Unix is very different on lets say the MS Windows EULA.

Finally, should the stub EULA article be merged with this one, which is not so much a stub.

[edit] Agreements vs. licenses

All the documents I have seen that call themselves `EULA's are agreements* (not licenses). Whereas the document says a `EULA' is a type of license. Should this not be rectified. Also, maybe point out that the word has no agreed on definition (and certainly is not a technical legal word), therefore is used in various different ways by different people.

[* Ones that, yes, are actually probably invalid in most jurisdictions, including, as I understand it, the EU; but, nonetheless, they attempt to be agreements between two parties as opposed to a one-way grant of permission.]

--Joe Llywelyn Griffith Blakesley 14:23, 2004 Nov 12 (UTC)

I agree, this article confuses a software license with the agreement that grants a software license. I think one thing that makes this confusing is the confusion between a license limitation and a an agreement which grants license. A license can be unilateral. Violating the license limitations just means the license grant is null and void. An agreement is a contract that requires consent of two parties. Violating the agreement is a contract violation. -- Seitz 19:32, 3 June 2006 (UTC)
That is not a very good distinction. A breach of a license will still give rise to a breach of contract claim. Perhaps this is some common law/civil law distinction, but a "license agreement" and a "contract" are the same thing. Second, license agreements can, and frequently do, have obligations in both directions: warranties, indemnities, limitation on liability, the actual grant of a license (is actually formulated as an affirmative act "Licensor hereby grants to Licensee"). Moreover, no legal regime that I'm aware of excludes unilateral contracts (for example, one-way NDAs) mmmbeerT / C / ? 02:09, 8 June 2007 (UTC)


[edit] EULAs as Licenses

EULAs must be agreed to or you usually cannot use the software, like a contract. Software licenses like the GNU GPL do not have to be agreed to, but if you do not then it defaults to 'regular' copyright with you losing all the benefits.

I think that the EULA should be put into its own separate article, with this article discussing software licenses in general. --ShaunMacPherson 21:50, 1 Jun 2005 (UTC)

A license is formal authority to do something that would otherwise be unlawful and is usually used to grant the licensee the freedom or permission to do something that without the license would be illegal. They are a contractual mechanism with which the licensor seeks to control the use to which the artifact that they hold title to is put. Within Copyright law, the license is an accepted way for the copyright holder to grant the permission or 'immunity from suit'(See Gen Talking Pictures Corp v W Elec Co 305 US 125 (1938)) for a particular artifact to be used or distributed without the title in property being transferred. It is important to note that some EULAs are valid and enforceable in different jurisdictions, even if terms contained within them are ruled unfair or invalid.

  • It is wrong that an EULA must be agreed upon before one can use the software, because copyright is always applicable to computer programs according to the international copyright treaty, Article 4, and does not grant the copyright owner unlimited rights over the copy owner's normal use rights as well as other's fair use rights. Thus, the one that wants a EULA to take effect must demonstrate that the rights granted under copyright treaty and law already there can be revoked. The copyright owner has the rights over the distribution, but not over copy owner normal use rights. For example, the owner of a book has the right to read it anywhere or resell it, and the copyright owner has no control over that; computer programs are no different in this respect. —Preceding unsigned comment added by 83.250.195.81 (talk) 08:23, 28 August 2006

[edit] EULA vs Copyright licenses

I think these things are totally different, and this article confuses them. I think we should have a separate page about EULAs, and devote this page to copyright licenses, i.e. GPL, etc. At the very least I think the page should clearly say that 2 distinct kingdoms of software licenses exist. Trious 20:38, 21 December 2005 (UTC)

  • I agree that, while the two are related, they are distinct. So I created a software license page to deal with software licenses, while this page can continue to deal with software license agreements. -- Seitz 15:31, 27 August 2006 (UTC)
  • Licenses are subordinate to copyright treaty and law: According to the international copyright treaty, Article 4, copyright is always applicable to computer programs, and does not grant the copyright owner unlimited rights over the copy owner's normal use rights as well as other's fair use rights. Thus, copyright treaty and law always apply to computer programs, unless local law states otherwise, and the copyright owner does not have the right to unilaterally revoke the rights given to the copy owner and others: such a thing can only take place by a properly signed agreement. If there is not such properly signed agreement, copyright treaty and law is in effect.
  • As for verifiability, there are precedents from Stockholm, Sweden in the case of parking tickets, though not computer software: Originally parking tickets were issued to the driver, not the owner of the car. The reason is that it is the person performing an action that is legally responsible, i.e., the driver and not the car owner. So the owner of the car, when asked to pay the parking ticket, would merely remark not knowing who drove the car on the occasion. The collectors of the parking ticket then will have no-one to collect from, nor is the owner of the car obliged helping with that. So the law had to be changed, so that it is now the car owner that pays the parking ticket. But the law change only applies to public parking tickets: in the case of private parking lots, the issuer of a fine still has to demonstrate who drove the car on the occasion and issue the ticket to that person, as to show the driver is taking the law in his own hands (by parking on a private space where not is allowed to). This is in practice hard to achieve. - So, as for EULA's, this reasoning does not as such make these legally void: If the case goes to court, and the person claimed to be a licensee admits taking the action of acceptance, the court may decide that the EULA is valid. But if the person claims not knowing who took that acceptance action, like opening the box or clicking the acceptance box, there will be in general no-one to find accepting the EULA. In such a case, local copyright law applies. The international copyright treaty is important, because it lays out the principles by which local copyright law should abide to, though the latter often show discrepancies. But if local law does not explicitly say otherwise, the principles of the copyright treaty should apply. So the normal thing is that copyrightable material becomes automatically copyrighted without special registration. The EULA must demonstrate that this copyright already in place can be overridden.

[edit] Case citations

Could we perhaps replace the case/law numbers with links to online resources that have them? The current form is pretty ugly, and many people wouldn't find the jumble of numbers and letters useful (I can't figure out where to find "23 Colo. Law 1321.17", for instance, due to the characteristically awful construction of the Colorado state web page). —Simetrical (talk) 00:29, 21 Mar 2005 (UTC)

Okay, I've changed over a few, but there are still some I can't find online. —Simetrical (talk) 01:01, 21 Mar 2005 (UTC)

[edit] No acceptance?

"Free software licenses grant additional rights (such as the ability to copy) and need not be accepted to use the software" is incorrect. Read the GPL to see why. Superm401 | Talk 03:59, July 13, 2005 (UTC)

It's not incorrect. The GPL grants people rights over distribution that they would not normally have. To merely use the software you don't need to accept the GPL. The GPL is a copyright license, not an "EULA". Trious 20:32, 21 December 2005 (UTC)
I'm going to disagree with this old comment just to set the record straight. Indeed the GPL does contain things that one would typically expect a user to agree to: a disclaimer of warranties. If you don't disclaim the warranties, courts will likely impose standard warranties. I would doubt that someone distributing OSS would like to have the burdens that come with warranties of merchantability and fitness for a purpose or non-infringement. Also, the GPL does give the recipient rights and obligations as well, e.g., you are free to redistribute the GPL software provided that you agree to do it on the same terms. mmmbeerT / C / ? 02:15, 8 June 2007 (UTC)

[edit] Abandonware List?

Do we really want to be maintaining a (potentially huge) list of abandoned software in this article? Granted, theres only one item there currently, but the comment about appending all abandoned software... I can list 15, 20 things off the top of my head, and I could come up with several hundred if I actually looked for a bit... Tel Janin 01:33, 29 September 2005 (UTC)


'Abandonware' section and references to 'Abandonware' removed. While the ethics of 'Abandonware' can be debated, they can be debated on the discussion page. As this is an encyclopedic article, 'Abandonware' does not belong - the term holds no legal weight, and is not even relevant to a discussion of EULAs. It may be relevant to a discussion of copyright, however. RvLeshrac 01:04, 6 September 2007 (UTC)

[edit] Rest of world?

What's the situation with EULA validity in countries other than the U.S.? Demiurge 10:06, 24 October 2005 (UTC)

In Germany (and possibly some other European countries) it's not legally binding, because you cannot read it when you're buying the product. 217.233.156.168 18:28, 30 August 2007 (UTC)

[edit] YOO-lah

Where is this pronunciation occurring? I haven't heard this here in Australia. Jayvdb 12:48, 2 August 2006 (UTC)

I've never heard that pronunciation in the Boston area either. We tend to say eee-YOO-lah. I nominate the pronunciation bit be removed. Certainly this is as territorial as accented speech. Mespinola 05:28, 30 December 2006 (UTC)

[edit] Biased POV?

I think this article overstates the unenforceability of EULAs. A review of the literature reviews that there is little that distinguishes the enforceability of EULAs as comapared to contracts generally. In Step-Saver, the EULA was unenforceable because there was no indicia of acceptance (ie the agreement was written on the box and the user was not required to assent to it). ProCD is widely viewed as the controlling case.

[edit] Merge with article "Software license"

I propose this article be merged with article "Software license". The point is emphasized by the fact that the acronym "EULA" redirects towards this article, while the improperly capitalized "Eula" will redirect to the "Software license" article, which contains very little information. Dominio 09:17, 9 October 2006 (UTC)

Oppose. I created the software license article specifically to make it clear that there is a difference between a software license and a software license agreement. -- Seitz 03:48, 12 October 2006 (UTC)
Oppose. I was searching for click-through licences and found the ClickWrap entry in the Wikipedia which is exactly what I wanted. I would not have found it had it been buried under Software License.

[edit] Minors and EULAs

What's the legality of EULA's in relation to minors (under 18s)? As EULA's are contracts and minor's cannot be bound by contracts in most countries, where does this leave EULA's? A google for "EULA minor" finds several EULA's that state something like this: " Accounts are available only to adults or, in their discretion, their minor child. If you are a minor, your parent(s) or guardian(s) must complete the registration process, in which case they will take full responsibility for all obligations under this Agreement." But not all of them do that. Would it be worth someone who knows about this adding something to the article about it? Anonymous - 10:55 UTC, 24 Oct 2006

[edit] Proposed merge from Clickwrap

It seems that this page has been conflated with the "shrinkwrap" agreement exclusively, when other more substantiated forms of the EULA such as the Clickwrap also exist. A comprehensive article on software license agreements should include both those that haven't fared well in court as well as those that have solved the earlier problems that shrinkwraps had, so I'm suggesting that Clickwrap should be merged into this article. --DachannienTalkContrib 20:21, 19 February 2007 (UTC)

Nobody had any comments, so I'm starting the process of merging these two articles. A few other articles may end up being part of the merge, and some cleanup will occur here as well. This may take a while.... --DachannienTalkContrib 17:28, 27 February 2007 (UTC)
If EULA redirects here, so should Clickwrap. Thanks for your help with this. How is the merge going? —mako (talk•contribs) 15:57, 19 April 2007 (UTC)

I don't think that the two should be merged. As a law student who takes an interest in this field, I can tell you that issues regarding "clickwrap" are different from EULA's. EULA's do not have to be clickwrap, and not all clickwrap is a EULA.

We can discuss them as separate, distinct on this page. When there is a full article worth of information on each subject, we can split them off again into their own articles. mako (talk•contribs) 15:48, 3 May 2007 (UTC)
Mergers should also keep Uniform_Computer_Information_Transactions_Act (UCITA) in mind since it is the next version of EULA meant to standardize and reduce differences between all the US states so that the concept of "EULA" can be more consistently enforced. The UCITA significantly affects EULA in addition to both the shrinkwrap and "clickwrap" enforcement. As such, UCITA needs to be amended and ratified by each state which has been a slow foot-dragging process so far. If UCITA does become accepted USA commerce law, then many of the EULA limitations currently unenforceable would then become legally enforceable.AnimeJanai 20:58, 29 September 2007 (UTC)

[edit] second graph problems

This graph: "In general, a EULA grants the user the right to make a certain number of copies of the licensed software. When software is installed from removable media, it is copied to the user's hard drive. Without the consent of the licensor, such an act violates copyright law."

This illustrates several problems with this article. The final sentence is not applicable in many jurisdictions, and not always the case in the U.S.72.75.11.113 15:44, 1 April 2007 (UTC)

This was added by Dachannien on 2007-02-27.
I think it's highly dubious that copies as part of normal, intended operation can count as infringement: this would, for example, make it illegal to play back any audio CD (which involves copying it to the DAC). I'm removing the statement, pending a citation. --Piet Delport 08:23, 8 June 2007 (UTC)
It remains a fact that copying music or software to RAM is considered making a new copy by law. In Europe, there is an exception for copies due to "technical necessity", which would include RAM, cache when viewing sites, and other such copies without which it is impossible to make use of existing copies. However, this is an exception that (I believe) is interpreted with restricted scope, meaning that anything not explicitly mentioned does not fall under it (a la the US Constitution and the federal government's powers). I do not know whether installing would be a valid exception, but it's worth researching. --Jw 14:08, 9 June 2007 (UTC)

[edit] Is Software Warranty Standard across all software supplier?

Typically when we acquire a software from vendor, its contract/agreement will state the warranty period, but most of them do have the warranty clause in it. Why? Is Warranty standard across all software supply to the market? —Preceding unsigned comment added by 218.208.242.224 (talk • contribs) 2007-07-29 02:01:05

[edit] Winamp

Has anybody read the following carefully?

"READ THIS AGREEMENT CAREFULLY. WE ARE WILLING TO LICENSE THE WINAAMP..."

I doubt I'm the first to notice the misspelling of the product's name (!), but the company certainly doesn't make it easy to get in touch with them.

D021317c 06:51, 8 November 2007 (UTC)

[edit] Proposed merge from Shrink wrap contract

Shrink wrap contract consists of mostly the section in this page. Corky842 (talk) 22:05, 24 November 2007 (UTC)

  • Do not merge - These are very different concepts, so they should not be merged but cleaned up. (1) Shrink wrap contracts can (an are) applied to anything that can be shrinkwrapped, not just software; and (2) Software is frequently distributed without shrinkwrap licenses; clickwrap is different; GPL and other licenses are assented to in other ways; etc. --Lquilter (talk) 07:13, 25 November 2007 (UTC)