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I purchased a CD containing multimedia graphics and such. I was
looking for the license agreement to see what my rights are in using
them.
Is small print it tells me that I can find their licence agreement on
their web page. The only problem is that they don't seem to own the
domain name they've given anymore, and the number they've supplied has
also been disconnected.
It looks like this company went under, but I don't know how to verify
that absolutely.
They didn't supply their license agreement with the CD, they no longer
own their website and the number that they've given has been
disconnected.
My question is this: Since they have provided me no reliable way of
getting my hands on this licensing agreement, does this mean that I
can't be held to the terms of any licensing agreement when using this
product?
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My Blog: http://parrot.blog-city.com
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I purchased a CD containing multimedia graphics and such. I was
looking for the license agreement to see what my rights are in using
them.
Is small print it tells me that I can find their licence agreement on
their web page. The only problem is that they don't seem to own the
domain name they've given anymore, and the number they've supplied has
also been disconnected.
It looks like this company went under, but I don't know how to verify
that absolutely.
They didn't supply their license agreement with the CD, they no longer
own their website and the number that they've given has been
disconnected.
My question is this: Since they have provided me no reliable way of
getting my hands on this licensing agreement, does this mean that I
can't be held to the terms of any licensing agreement when using this
product?
Argument A:
If something in the packaging or the "fine print" you found, says that you
are agreeing to the license agreement if you use the program, then you have
that choice. Either use the program and thus sign up to a license agreement
you can't find, or don't. If you don't agree to be bound by the license
agreement, you have the right to get your money back. That may be very
difficult, and may amount to nothing more than the right to file a claim in
their bankruptcy. Still, that difficulty doesn't equal you getting an
unlimited license. The copyright is an asset in bankruptcy, or an asset the
owner still has, and it isn't lost as a penalty for not furnishing you a
copy of the license.
Argument B:
If there is no plaintiff, there can be no defendant. If there is nobody
around to complain, and you use the product in whatever way you choose, bad
things won't happen. That philosophy wouldn't extend to licensing the
copyright to others, because you still don't own it. But if you adopt this
approach and guess right about there being no potential plaintiff, you would
at least be safe in using it for your own personal use.
McGyver
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On Tue, 25 Nov 2003 10:04:29 -0800, "McGyver" <Greyprof@msn.com>
wrote:
Argument A:
If something in the packaging or the "fine print" you found, says that you
are agreeing to the license agreement if you use the program, then you have
that choice. Either use the program and thus sign up to a license agreement
you can't find, or don't.
Hmm... but how can the law expect me to abide by the terms of a
licensing agreement when I have no way of knowing what those terms
are?
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My Blog: http://parrot.blog-city.com
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On Tue, 25 Nov 2003 10:04:29 -0800, "McGyver" <Greyprof@msn.com>
wrote:
Hmm... but how can the law expect me to abide by the terms of a
licensing agreement when I have no way of knowing what those terms
are?
The law expects you to be responsible for obligations you voluntarily
undertake, regardless of whether you have read them. The law gives you the
right to decline to sign up for obligations you don't understand, or haven't
seen. I, on the other hand, expect you will sign things you don't read,
sign things you don't understand, sign up for obligations you haven't even
seen. All of my clients do.
McGyver
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McGyver wrote:
The law expects you to be responsible for obligations you voluntarily
undertake, regardless of whether you have read them. The law gives you the
right to decline to sign up for obligations you don't understand, or haven't
seen. I, on the other hand, expect you will sign things you don't read,
sign things you don't understand, sign up for obligations you haven't even
seen. All of my clients do.
I'm afraid that's not exactly relevant. He might be perfectly willing
to abide by the license agreement on the website. In fact, he can't
be in violation of THAT license agreement, because there's nothing there.
(Sounds like the PrePaid Legal threads over on us.legal. PPL isn't
willing to reveal their terms to those not willing to pay for them, and
seems surprised that people want refunds after they find the terms.)
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McGyver wrote:
I'm afraid that's not exactly relevant. He might be perfectly willing
to abide by the license agreement on the website. In fact, he can't
be in violation of THAT license agreement, because there's nothing there.
He has no right to infringe a copyright unless he has a license. The issue
is not whether he can be in violation of the license. Where does he get the
right to copy the material onto his PC unless he succeeds in entering into a
license? There is no need to be concerned with whether he can be in
violation of a license unless he has entered into it. Obviously, he cannot
be in violation of a license agreement he has not entered into. I don't
agree with your argument that the ability to be in violation depends on the
license being on the website as advertised, or findable in some other way.
If he can enter into it, then he can violate it. My argument is that he can
easilly sign up to a license agreement by opening the package or using the
software or whatever method of acceptance is stated on the package or fine
print. I don't see it as enterring into a license that doesn't exist. I
see it as entering into a license that exists somewhere, but isn't findable.
If I'm wrong about that, and he can't enter into a licence that doesn't
exist, he would not be able to obtain the right to copy and use.
(Sounds like the PrePaid Legal threads over on us.legal. PPL isn't
willing to reveal their terms to those not willing to pay for them, and
seems surprised that people want refunds after they find the terms.)
I made the mistake of feeding the troll once, because I thought it was a
serious question. Great answer too. But I should have keep my fingers
occupied more profitably.
McGyver
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He has no right to infringe a copyright unless he has a license. The issue
Related question: I buy a CD-ROM full of clip art or software or
something at a retail store. There is *NO MENTION WHATEVER* about
a license, inside or outside of the package or on the CD-ROM. (This
is probably unrealistic but it might happen with a new software
company too cheap or naive to pay for a lawyer before marketing
their software.) There is a copyright notice. Do I get ANY RIGHTS
AT ALL for what I paid for? Is there some kind of implied license?
What are the terms of it? Do I get redistribution rights? Rights
to make derivative works?
(Assume here that the manufacturer owns or has rights to distribute
and sell the material in queston: it's not pirated.)
is not whether he can be in violation of the license. Where does he get the
right to copy the material onto his PC unless he succeeds in entering into a
license? There is no need to be concerned with whether he can be in
violation of a license unless he has entered into it. Obviously, he cannot
be in violation of a license agreement he has not entered into. I don't
agree with your argument that the ability to be in violation depends on the
license being on the website as advertised, or findable in some other way.
How can one agree to the terms of a license which one not only can't
see, but can't even determine whether it exists or not? Isn't a
license a form of contract? If a dispute arises, how can one
determine what the terms of the license were? (Manufacturer claims
the license requires $10000 each time I run the software; I claim
the license is a copy of the GNU Public License. Neither one of
us has any proof.)
If he can enter into it, then he can violate it. My argument is that he can
easilly sign up to a license agreement by opening the package or using the
software or whatever method of acceptance is stated on the package or fine
print. I don't see it as enterring into a license that doesn't exist. I
see it as entering into a license that exists somewhere, but isn't findable.
If I'm wrong about that, and he can't enter into a licence that doesn't
exist, he would not be able to obtain the right to copy and use.
Gordon L. Burditt
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. . .
Related question: I buy a CD-ROM full of clip art or software or
something at a retail store. There is *NO MENTION WHATEVER* about
a license, inside or outside of the package or on the CD-ROM. (This
is probably unrealistic but it might happen with a new software
company too cheap or naive to pay for a lawyer before marketing
their software.) There is a copyright notice. Do I get ANY RIGHTS
AT ALL for what I paid for? Is there some kind of implied license?
What are the terms of it? Do I get redistribution rights? Rights
to make derivative works?
(Assume here that the manufacturer owns or has rights to distribute
and sell the material in queston: it's not pirated.)
You get the right to use the CD-ROM. It's called "first use", I think. I
can't expand on the extent of that use because I'm not expert in that field.
There are several very good copyright attorneys on this board, and one of
them will probably answer. If not, post a new question and one of them
surely will answer.
. . .
How can one agree to the terms of a license which one not only can't
see, but can't even determine whether it exists or not? Isn't a
license a form of contract? If a dispute arises, how can one
determine what the terms of the license were? (Manufacturer claims
the license requires $10000 each time I run the software; I claim
the license is a copy of the GNU Public License. Neither one of
us has any proof.)
Don't confuse two concepts:
(a) how can you agree to terms of a licence that you can't see, and
(b) it would be dumb to enter into a license that you can't see.
There are a lot of things you legally can do that would be dumb.
Try these examples:
(a) I offer to sell you something for $1,000 but I won't tell you what it
is. You have the right to buy. I have the right to keep the money even if
you don't like the thing I deliver.
(b) I offer you a written contract which requires you to paint my house blue
and requires me to pay you $1,000. The face of the contract contains, in
big, bold print: "The terms and conditions document locked in Homeowner's
safe shall apply to this contract." I won't show you the terms in advance.
You have the right to sign that contract. You would be bound by the terms
and conditions document.
(c) I re-finance my house. The closing clerk, who is a notary public,
brings me a zillion documents to sign, and I do, without reading any of
them.
(d) you buy a CD with paperwork saying that if you plug the CD in and run
it, you are accepting the terms of a license agreement which is burried in
the files of a bankrupt company somewhere. You have the right to plug in
the CD and run it, thus accepting the terms of a license you haven't read,
and can't easilly find.
(Example (c) is included to keep me humble)
McGyver
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