From: edp@math.zk3.dec.com (Eric Postpischil)
Subject: Hidden "licenses" for software
Reply-To: edp@math.zk3.dec.com (Eric Postpischil)
Organization: Digital Equipment Corporation
Date: Tue, 5 Jan 1993 21:14:31 GMT

Somebody recently commented on the "license" that comes with Derive. 
These hidden licenses piss me off.  I think they are bogus for many
reasons:

First and foremost, it is simply not ethical to bind a person to terms
after they have already entered a contract which did not include those
terms.  If a company wants to sell their software under a license, the
honest way to do it is to notify the person BEFORE THE SALE that the
software is sold under license and to make the terms of the license
available for examination.

In order for a contract to be formed, both parties must agree to terms
they understand.  The purchaser obviously cannot understand a license
they have never seen, so no license is formed at the time of sale.

If an item is offered for sale, and a person orders a copy, arranges
payment, and receives a copy of the item, then a contract has been
formed, and the purchaser owns that copy.  No party can then deny the
person the right to ownership of the item -- whether they wish to
execute the program on a computer or to sell it to somebody else (both
of which are permissible under copyright law).

In addition, if an item were sold under a license (agreed upon before
sale), then the purchaser would be granted rights by the license.  This
really means they agree, by the license, to give up some rights of
ownership.  If the license is made known only after sale, the purchaser
receives no consideration in exchange for giving up their rights -- they
already own the copy they have purchased.  Nothing more is given to
them.  Without an exchange of consideration, a contract is not formed.

In my case, I ordered Derive only after reading a favorable review of it
in a publication of the Math Association of America.  It was a
determining factor in my decision to purchase an HP-95.  When I ordered
Derive, I entered a contract with Educalc and Soft Warehouse.  They
agreed to provide me with Derive for a certain price.  They did not ask
for any other terms.  Had they failed to provide me with what they
offered, whether by preventing me from unsealing the envelope or other
means, then they would have been liable for damages, including at least
the price of Derive and the HP-95.

Once I had purchased Derive, the materials that were shipped to me were
wholly owned by me.  I was the sole owner of the ROM card (but not the
rights to copy it) and the accompanying materials, including the
envelope.  As sole owner, I have the right to unseal the envelope;
nobody can tell me I don't have the right to open my own property unless
I agree to their terms.  Unsealing the envelope thus does not constitute
agreement to the license.

This was discussed in misc.legal a year or so ago.  At that time, one
author alleged that licenses such as these had not been tested in court.
I would appreciate citations to the contrary.

By analogy, suppose you went to a car dealer and negotiated to buy a car
for $10,000, and the dealer agreed and delivered a car to you in
exchange for $10,000.  But when you went to drive the car, there were a
seal across the ignition stating that by breaking the seal, you agreed
to pay an additional $10,000.  Would that statement be binding upon you?
I do not think so.  In the event it were binding, the dealer would be in
violation of their agreement to sell you a car for $10,000.  I consider
that to be unethical.

I am not opposed to software licenses, but they must be handled
ethically.  The purchaser must be informed in advance, and agreement
must be secured.  If publishers will informed me in advance of their
license terms, then I will either agree to and abide by them or I will
not buy their software.  If the publishers do not inform me in advance,
I will not be bound by any terms but those known to me at the time of
sale.

Unfortunately, my purchase of Derive would make a poor test case, as
Soft Warehouse made a poor choice of glue and will find the seal on the
envelope still intact.  I did not expect it to open so easily, but it
did.  Even in the best of circumstances, a publisher would have very
little physical evidence to prove there was agreement to their hidden
license; in my case, there is no evidence at all.

Soft Warehouse owns the right to make copies of Derive.  But I bought
and paid for one copy.  It belongs to me, and copyright law allows me to
sell it.


                                -- edp (Eric Postpischil)
                                "Always mount a scratch monkey."
                                edp@rusure.enet.dec.com
Newsgroups: comp.sys.palmtops