From: whs70@dancer.uucp (22501-sohl)
Subject: Use of Shareware, was Re: Hipocrisy is the Gre......
Reply-To: whs70@dancer.UUCP ()
Organization: Bellcore, Livingston, NJ
Date: Fri, 31 Jul 92 15:35:41 GMT

In article <5dly037S4abo00@amdahl.uts.amdahl.com> jesse@uts.amdahl.com (Jesse Mundis) writes:
>whs70@dancer.uucp (22501-sohl) writes:
>
>>Again, without a court case there's only opinion.  I personally
>>doubt that a court would consider my using a shareware program 
>>without paying a fee to the author as a violation.  The author 
>>distributes shareware with the "hope" that some folks will pay for
>>it if they like it.  Shareware isn't any diferent than if an author
>>freely distributes 100s of copies of a book and includes a statement
>>that if you read the book please send $x to me.  Do you think
>>the author would have a case against someone that read the book
>>without paying?  Not likely, the author gave away the books, the
>>act of reading (as is the act of using the software) is not what
>>copyright protects.  My understanding is that copyright protects
>>against unauthorized copying and the shareware program was freely
>>given away.  If I have a shareware program, whether I use it or
>>not, I'm not in any copyright violation since the author intended
>>me (and everyone else) to get the copy for free.   So my guess
>>is that a court would not find a copyright violation by an individual
>>that used shareware without paying the author his requested fee.
>
>You've brought up a good point.  COPY-right does only apply to the
>copying of material, not its use.  (The reading or running example)
>But, with shareware there is a difference.  The copy may be free, but
>the licence to *use* the shareware states the conditions of use.  Most
>say "You may use this for so long, and if you use it any longer you must
>pay me money."  This is very different from "that if you read the book please 
>send $x to me."  It comes back to whole idea that software is almost NEVER
>sold, just the licence to use it.  And those licences, even on shareware,
>are still valid.

>So, IMHO, *IF* Usenet postings have no copyright status, then yes, posted
>shareware likewise has no copyright status... but by its nature, shareware
>has NO copyrights anyway.  The authors WANT it to be copied.  The licencing
>agreement is still in full force.

Actually, I think there is still a copyright, however, the author
in creating the shareware has given an unlimited right to
distribution of the shareware program to anyone, anywhere and
using any medium what so ever.  

The licensing may or may not exist, regardless of the statements made
by the author.  Has there ever been any court test of a shareware
license that has ended in a decision that supports the validity of
the license?  Also, an important difference (as compared to copyright
violations), even if licensing is legally
the element in contention, is the fact that violation of licensing
does not contain any criminal violations.  If you and I enter a
licensing arrangement, we have a contract between us.  If either of
us violates the terms of the license/contract then there arises the
opportunity to sue for specific performance, damages, etc.  There does
not arise any criminal violation.

Now as regards to using shareware, I'd suggest it is all but
impossible to prove that anyone is actually using a particular
shareware program, especially to prove that they are using it
beyond "n" time as allowed by the sharewares author prior
to payment beying requested for its continued use.

We seem to already agree that possessing a copy
of the program is not a copyright violation as free distribution
is what the author intended.  So, even if a court buys into
the argument that a licensing agreement exists in order to
use the software, how then would anyone actually prove someoone
has been using the shareware beyond the "trial" period indicated
by the author.  The burden of proof is on the plantiff (author)
to prove to the court that (1) a license exists, (2) the license
is valid and (3) the person holding the copy of the plantiff's
shareware is violating by using the shareware (running the program)
and (4) that the running/use of the program is beyond that allowed
in the licensing aggreement.  Now the most difficult aspect (IMHO)
would be proving (3) and (4).

Additionally, if the plantiff did convince the court that the license
agreement was violated they would only be entitled to damages
no greater than the fee requested in the shareware for its use.
The only other possible financial award may be that the violator
may be forced to pay for the plantiff (authors) legal costs, but
that is not necessarily true in all cases.

So, the practical aspect of all this is that no one is likely to end
up in court for using shareware and not paying for it.  I can't think of
anyone going to court against an individual for the $10 to $100 fees
that are the norm for most shareware I've seen.  That doesn't
eliminate the legal/ethical/moral aspect of the situation, it just (IMHO)
lays out the reality of the way things are, even given a
shareware licensing violation is legally sustainable.

Standard Disclaimer- Any opinions, etc. are mine and NOT my employer's.
------------------------------------------------------------------------
Bill Sohl (K2UNK) BELLCORE (Bell Communications Research, Inc.)
Morristown, NJ             email via UUCP      bcr!dancer!whs70
201-829-2879 Weekdays      email via Internet  whs70@dancer.cc.bellcore.com
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