Licenses & Law

[Geoff]

@Geoff: Since you only buy the right to use the software (and not the right to sell it on), I'm sure that Macromedia are well within their rights not to allow it. You should also bear in mind that it is heavily reduced in price to begin with.

 

No, there are several statuary rights protected by law. Including resale. Macromedia can stuff their EULA.

[Andrew_C]

"Well, thats rubbish. You have some basic consumer rights here. "

 

Rubbish, and unfair yes; but just what I would expect.

 

Another point, we are not consumers with respect to the law. Consumers are the man in the street...

[kevinmcaleer]

Andrew_C, I'm afraid your wrong.

 

@Geoff: Since you only buy the right to use the software (and not the right to sell it on), I'm sure that Macromedia are well within their rights not to allow it. You should also bear in mind that it is heavily reduced in price to begin with.

 

No, there are several statuary rights protected by law. Including resale. Macromedia can stuff their EULA.

 

Its not Macromedia's EULA that is the case in point here, its the UK law:

 

Copyright Designs and Patents Act 1988

 

The Copyright, Designs and Patents Act 1988 states: The owner of the copyright has the exclusive right to copy the work (Section 16). That means it is illegal to copy software without the copyright owner's permission. With regard to software, the copyright owner is the software developer / publisher. Breaking the law could have serious consequences for you and the organisation you work for, threatening both your own and your employer's reputation and future prosperity.

The legal penalties include unlimited fines and up to ten years in prison following the Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002.

Personally, you could lose your reputation, promotion prospects or even your job.

There are no mitigating circumstances and no organisation would condone or defend either illegal copying or the use of unauthorised software.

 

I know that might seem frustrating, but you only purchased a license to use the software, not the actual software itself. All you actually own is the phyiscal media the software was sent to you on, and the box it came in along with the paper manuals.

 

-Kev

[Geoff]

The 1988 act is obsolete. Please refer to the 2003 amended act in future. In paticular I refer you to the sections concerning 'fair dealing'.

[kevinmcaleer]

The 1988 act is obsolete. Please refer to the 2003 amended act in future. In paticular I refer you to the sections concerning 'fair dealing'.

 

Sorry; Irrelevant. I've read the 2003 amendment and it makes no reference to software licensing, or licensing in general. Its more to do with making a better definition of what is considered 'fair' with respect to a certain number of cases (such as stairlift maintenance extended warrenties for example).

 

I think you miss understand what a 'licence' actually is. A licence is a "legal permission" granted by an authority or entity to a named individual or organisation.

 

Think about other licenses that are in operation: Drivers Licence, TV Licence, License to sell intoxicating liquor. Its not possible to sell your drivers licence, or TV licence, its nonsense to think that someone else would want to buy it.

 

Software licenses are exactly the same. You (or your organisation) are/is legally granted permission to install and use a certain version of software on a specified number of computers if you purchase a software license. They are non transferable by the very nature.

 

Two places that are worth a click from a legal point of view are:

http://www.bsa.org/uk/

http://www.fast.org.uk/

 

If you are saying that you consider Macromedia (Now Adobe) is not actually "fair dealing" with you, you can always contact the Office of Fair Trading (OFT) at:

 

http://www.oft.gov.uk/

 

It may also be of use to you to check out the term 'Libel':

 

http://www.google.co.uk/search?hl=en&q=define%3A+libel&meta=

 

-Kev

[Geoff]

I understand perfectly what a license is. My arguement is that sections of their EULA are invalid as they restrict or remove your basic given rights. This is something only the government can do through law-making, not a private company.

[kevinmcaleer]

In what way is it a basic given right that you can steal software?

 

Do you think copyrights are against human rights? Tell that to any author, song writer or programmer I'm sure they'd have something to say about that.

 

If you think about it, how else can you sell software? As a programmer you want to be fairly paid for your work. Most people would argue that the more people buy your work the more successful you should become.

 

Intellectual property is a thorny issue. One idea put forward was to patent software http://www.intellectual-property.gov.uk/faq/question8.htm

but this again is not of much use because of legal definitions.

 

Licensing is the only real solution to making money from writing software.

 

On a related note, I was interested to hear that Martin Luther Kings famous speech "I had a dream" was copyrighted. This caused controversy because he made the speech publicly and under the laws at the time anything said in public was said to be in the "public domain" and could be published without infringing any copyright. However this was later changed because it was argued that the actual content of what was said was copyrighted not the performance of it.

 

http://en.wikipedia.org/wiki/I_have_a_dream

 

It's this kind of subtle legal issues that make licensing seem unfair at times. But you have to consider the people on the other side of the equation.

 

The Electronic Frontier Foundation also have issues with EULA's:

http://www.eff.org/wp/eula.php

 

What sections in the EULA do you take issue with?

 

-Kev

[Geoff]

In what way is it a basic given right that you can steal software?

 

You cannot steal software. Stealing suggests denying the owner of its use. Clearly thats impossible. You can however copy it. That is a violation of copyright but it is not stealing!

 

Do you think copyrights are against human rights? Tell that to any author, song writer or programmer I'm sure they'd have something to say about that.

 

Are a couple of things 'wrong' with copyright law. Firstly the length something is copyrighted for. This has been extended and extended over and over the years to serve the needs of corporations. I think we're up to round about 70 years now.

 

Secondly, copyright infringment is now a criminal offence punishable with up to 10 years in jail and an unlimited fine. I'd get less for rape, armed robbery or manslaughter!

 

Intellectual property is a thorny issue. One idea put forward was to patent software http://www.intellectual-prope...stion8.htm

but this again is not of much use because of legal definitions.

 

I don't know. Government sanctioned monopolies sound pretty lucrative to me. Thats all patents boil down to really. Eorlas is doing quite well extracting money out of Microsoft with software patents for example.

 

http://www.betanews.com/article/Microsoft_to_Modify_ActiveX_in_IE_Update/1133804729

 

Licensing is the only real solution to making money from writing software.

 

Its increasingly difficult to make money from software unless you come up with something new and ingenious. An alternative is not to charge for the software but sell support and services around it. IBM and Novell are doing quite well out of this with Linux at the moment.

 

It's this kind of subtle legal issues that make licensing seem unfair at times. But you have to consider the people on the other side of the equation.

 

The people on the other side of the equation are corporations. They might work at the behest of individual artists, inventors, etc but really they are lobbying for more restrictive copyright and patent laws to protect and further increase their revenue streams and shareholder dividends. A prime example of this is the RIAA going after filesharers.

 

The Electronic Frontier Foundation also have issues with EULA's:

http://www.eff.org/wp/eula.php

 

I know, I'm a member.

 

What sections in the EULA do you take issue with?

 

I don't have a copy of Macromedia here. If someone posts a copy of the EULA I'll go through it and see whats unreasonable.

[kevinmcaleer]

You cannot steal software. Stealing suggests denying the owner of its use. Clearly thats impossible. You can however copy it. That is a violation of copyright but it is not stealing!

 

I think FAST would disagree! Theft of copyrighted material is stealing and possesion is 9/10s of the law. So I'd have to disagree with you on that one.

 

Are a couple of things 'wrong' with copyright law. Firstly the length something is copyrighted for. This has been extended and extended over and over the years to serve the needs of corporations. I think we're up to round about 70 years now.

I think the reason copyrights are so long is because unlike most physical goods, ideas last forever. Once someone has thought or said something, it can't be unthought or unsaid. (ok you can retract a statement, but you know what I mean). Because of this, if you have an original idea and write about it, without copyright anyone else could copy that and make money out of it leaving you behind. The idea of copyright is to protect your ideas from theft and allowing the originating author the chance to make a fair living out of his/her works. So its not surprising that copyrights are closely linked to average life expectancy.

 

I would agree with you about extending them any further. I think that once a company has made a fair profit (difficult to define that one!) the idea should become public domain.

 

As for criminal charges and punishment, I think the 10 years and unlimited fines is a little harsh for the dodgy guy on the street corner selling copied DVD's.

 

I think Apple made a lot of changes to the industry with iTunes, making buying songs much easier (and one hell of a lot cheaper). Before iTunes, you had to buy either an album or a single, singles at about £2-£4 each were ridiculously expensive, whereas albums were better value for money, but may have contained 'filler' tracks. iTunes changed all this because now you can buy the exact tracks you want for a fair price.

 

An alternative is not to charge for the software but sell support and services around it.

 

I'd agree up to a point. Its worth noting that the majority of 'free' or open source software is quite old. Take Linux. Unix is getting on a bit, 25-30 years old. So they're making it free isn't really going to kill Unix manufacturers out there. Whereas cutting edge software, utilising new ideas and new code has probably had considerable investment in it, so its only fair that company should get back that investment and some profit for its effort.

 

Just because some opensource developers give away their quality software for free doesn't mean that all companies are bad for wanting to make profit. We live in a capitalist country, its the way it is.

 

A prime example of this is the RIAA going after filesharers.

I'd have to agree with you here. I think that them going after small time filesharers is missing the point. Their sales system is out of date. People wouldn't be stealing songs if they could buy them legally online for a reasonable price. Its just an example of how corporations don't always keep up with technology or understand its potential. Sony and its rootkit is another good example of a big player backing the wrong horse.

 

My own personal opinion with software licensing for schools is that most of the software schools use should be given freely. If every school uses product X from company Y, they are more likely to want the company they eventually get a job with to use product X from company Y. The only problem with this is that some companies only exist to write software for schools. They can't give their software away because they wouldn't make any money. Making money from support and training is only viable when you have large volumes of use of the software.

 

-Kev

[Geoff]

I think FAST would disagree! Theft of copyrighted material is stealing and possesion is 9/10s of the law. So I'd have to disagree with you on that one.

 

This distinction used to be easy to explain. Stealing was a criminal offence where as copyright violation was not. It is a shame the EUCD removed this basic distinction. It was a mistake IMHO.

 

I think the reason copyrights are so long is because unlike most physical goods, ideas last forever. Once someone has thought or said something, it can't be unthought or unsaid. (ok you can retract a statement, but you know what I mean). Because of this, if you have an original idea and write about it, without copyright anyone else could copy that and make money out of it leaving you behind. The idea of copyright is to protect your ideas from theft and allowing the originating author the chance to make a fair living out of his/her works. So its not surprising that copyrights are closely linked to average life expectancy.

 

No, you're talking about two different things here. Copyrights prevent people use your work without your permission. Patents allow you to charge people to use your ideas. The phrase 'Interlectual Property' bundles up these legally unrelated concepts with Trademarks into some meaningless buzzword.

 

I would agree with you about extending them any further. I think that once a company has made a fair profit (difficult to define that one!) the idea should become public domain.

 

The US has recently extended its copyright to 110 years. Canada and the EU are revising their copyright laws in response. What generally happens is we leapfrog each other by 10 years driving the process ever onwards.

 

As for criminal charges and punishment, I think the 10 years and unlimited fines is a little harsh for the dodgy guy on the street corner selling copied DVD's.

 

Remeber it's 10 years + unlimited per offence. So for that guy, its 10 years a DVD!

 

I think Apple made a lot of changes to the industry with iTunes, making buying songs much easier (and one hell of a lot cheaper). Before iTunes, you had to buy either an album or a single, singles at about £2-£4 each were ridiculously expensive, whereas albums were better value for money, but may have contained 'filler' tracks. iTunes changed all this because now you can buy the exact tracks you want for a fair price.

 

Which is where a lot a problems are steming from. The Music industry is failing to adapt to the new reality of the digital age and attempting to prop up its dying business model with bad laws its paid for.

 

 

I'd agree up to a point. Its worth noting that the majority of 'free' or open source software is quite old. Take Linux. Unix is getting on a bit, 25-30 years old. So they're making it free isn't really going to kill Unix manufacturers out there.

 

Where are SCO, AT&T, SGI these days? What ever happened to Solaris or AIX? Times have changed Linux might not be making a big impression the Windows desktop market but its completely destroyed the Unix market.

 

Whereas cutting edge software, utilising new ideas and new code has probably had considerable investment in it, so its only fair that company should get back that investment and some profit for its effort.

 

Their cutting edge software is buggy, their new ideas are rehashed old ideas. I think you give most software companies more credit than their due. Fair enough there are the small trailblazing companies out there but they are not the big boys your thinking of.

 

Just because some opensource developers give away their quality software for free doesn't mean that all companies are bad for wanting to make profit. We live in a capitalist country, its the way it is.

 

Thats fine. I don't have a problem with companies making money per say. I have a problem with companies making money without respecting their moral obligations to society.

 

I'd have to agree with you here. I think that them going after small time filesharers is missing the point. Their sales system is out of date. People wouldn't be stealing songs if they could buy them legally online for a reasonable price. Its just an example of how corporations don't always keep up with technology or understand its potential.

 

I touched on this above in my reply, so I won't repeat myself here.

 

Sony and its rootkit is another good example of a big player backing the wrong horse.

 

DRM is a seperate debate that deserves its own thread IMHO.

 

My own personal opinion with software licensing for schools is that most of the software schools use should be given freely. If every school uses product X from company Y, they are more likely to want the company they eventually get a job with to use product X from company Y. The only problem with this is that some companies only exist to write software for schools. They can't give their software away because they wouldn't make any money. Making money from support and training is only viable when you have large volumes of use of the software.

 

Educational software is a specalist market. I think there is a market for selling software in these niches. Bigger markets such as operating systems, server applications, office suites, etc are rapidly being eaten into by open source solutions. I don't think the comerical software world has an effective defense against this. Eventually these area's of software will become unprofitable because of open source.

[kevinmcaleer]

Copyrights prevent people use your work without your permission.

You get it at last. This is the reason you can't sell on your Macromedia license.

 

Times have changed Linux might not be making a big impression the Windows desktop market but its completely destroyed the Unix market.

. It was Windows and the invention of the PC that destroyed the old unix market. Instead of paying thousands for mainframes (that ran unix) companies could instead buy cheap PC networks running cheap server operating systems. Once the deathnell for unix had been heard the unix providers could only hope to keep on support contracts with their ever diminishing customer base. Once linux was on the scene as a free stable unix platform, it became viable once again to support unix as a server operating system. But, a lot of companies are quite happy to keep on running Windows & other paid software for their networks because of an important issue, that is mitigation.

When you buy software from a company, it has to abide by the law; the software can not contain anyone elses code, that may infringe patents or other copyrights. If they do, they'll be sued. If on the other hand you use software that is open source, you may, unknowingly be using copyrighted material that is buried deep within the software. You may also be the one who is liable for this as you have not formed a binding contract when you purchased (or rather didn't purchase) the software.

 

Eweek carries the full story:http://www.eweek.com/article2/0,1895,1729412,00.asp

 

Now I'm not saying that all open source software contains copyrighted material. But the point is you don't have any protection if it does.

 

Their cutting edge software is buggy, their new ideas are rehashed old ideas. I think you give most software companies more credit than their due. Fair enough there are the small trailblazing companies out there but they are not the big boys your thinking of.

Your making a huge sweeping statement here. All new software is not rehashed old ideas. Some new software is cutting edge, take Apples Dashboard for example. There is nothing like it on any other platform. Its built straight into the OS. Its also extremely stable. Apple is a "big boy" in the industry. I give Apple a lot of credit, they deserve it. They use opensource software, yet you still have to buy the parts that they have developed themselves. You can download darwin for free: http://developer.apple.com/darwin/

 

I don't have a problem with companies making money per say. I have a problem with companies making money without respecting their moral obligations to society.

So Macromedia are not respecting their obligations to society because you can't sell your software license?

 

Eventually these area's of software will become unprofitable because of open source

. Disagree with you on this one. There will always be a place for commercial software in these industries, as the commercial drive means that companies will always look to the next innovation to sell to customers. Take Windows Server for example. Microsoft are not going to go bust anytime soon, their server product is highly innovative. They understand that customers want both innovation and low cost (but doesn't have to be free) in their software. Commerical software is typically a lot quicker to respond to customers needs.

 

In the school environment for example, common MIS solutions such as SIMS only run on the Windows platform. They are unlikely to write it so that it runs on every linux variant because they cost is prohibitive. Because schools choose their workstation platforms because they support the key applications they use, they aren't going to ditch Windows anytime in the forseeable future. Its also true of educational software writers. They are going to continue to write software for the most common platform: Windows. It will take a very very long time to change this.

 

-Kev

[kevinmcaleer]

Just out of interest take a look at:

 

http://news.zdnet.com/2100-3513_22-5944617.html

 

There is a UK company reselling Microsoft Volume Licenses from Insolvent or downsizing companies with Microsoft's blessing.

 

There are specific conditions that have to exist to be able to sell your volume license and it doesn't apply to OS licenses. Its legal because there is a statement in the terms and conditions that allows licenses to be transfered under special circumstances, combined with a 'loophole' in British insolvency law.

 

I'm not aware of any other software manufacturer that allows resale of their volume licenses.

 

-Kev

[MkII]

When you buy software from a company, it has to abide by the law; the software can not contain anyone elses code, that may infringe patents or other copyrights. If they do, they'll be sued. If on the other hand you use software that is open source, you may, unknowingly be using copyrighted material that is buried deep within the software. You may also be the one who is liable for this as you have not formed a binding contract when you purchased (or rather didn't purchase) the software.

-Kev

 

'Bin thinking about this one. Stealing other peoples code is actually Microsofts business model. The only difference is that Microsoft are above the law, and will shut down a competitor just because they're the biggest. Doesn't matter who's code it is, if Microsoft steal it - it's thiers.

 

That's not just Microsoft, it's a western world/ US disease that permeates modern society. And it's bad.

[GrumbleDook]

This is one of the things that gets my goat. The taking of somebody else's code and using it is not theft.

 

Theft is the dishonest appropriation of property belonging to another with the intention of permanently depriving the other of it. Thief and steal shall be construed accordingly.

 

You can steal the media. You can steal the paperwork to do with the license but you cannot steal code. You break copyright or the intellectual rights of coder or their employer.

 

Microsoft's business model is not to do this either. It is to acquire code through purchase. The methods they use may leave a lot to be desired, and there are a number of cases where they used the code first and bought afterwards.

 

The issue I have with EULAs and the like is that quite often they will keep within the law, and then add additional stipulations. It takes case law to be made to sometimes prove that these additional stipulations breach other laws or do not allow individual to assert their rights under other laws / acts.

 

But they are within the law ... and it is only through pressure being brought by govmt groups that they will be changed.

 

There are several groups of people that work towards this end and we should support them, not because they are necessarily Anti-M$ (a bad attitude in my eyes), but because they want clarity on what users, including schools, can and can't do.

[MkII]

Microsoft's business model is not to do this either. It is to acquire code through purchase. The methods they use may leave a lot to be desired, and there are a number of cases where they used the code first and bought afterwards.

 

Ultimately though we live in a world where money rules. The way I see it you have some guys [including us] that wield a big hammer, and bludgeon those weaker than ourselves. That's what this is all about.

[Guest metalmonkey]

I agree with your sentiment Grumbledook but I disagree with your understanding of the word Theft.

 

By your own statement, does that mean I can take your car for 9 weeks, without your permission, as long as I leave a note to say I will return it?

 

Theft is taking something without permission, no matter who or what it's taken from.

 

However, I agree that stealing software is a grey area. How can something be stolen that is virtual. It has no physical existance.

[webman]

By your own statement, does that mean I can take your car for 9 weeks, without your permission, as long as I leave a note to say I will return it?

 

With that car - there is only one of - he will not be able to use it while you are. But with software and/or code - the original code can, in a technical sense, still be used no matter how many other "copies" there are of it.

[GrumbleDook]

The definition of theft is the legal definition. This I know ... and the 50 press ups I had to do every time I got a definition even one word wrong during the police training sort of helps to drill it into your head.

 

This is why the term "software theft" is difficult to pin down.

 

Even FAST, the Federation Against Software Theft, actually talk about software copyright and piracy rather than theft. They use the word "theft" as a colloquial term rather than legal, ie it is something that is easier for Joe Public to understand than copyright.

 

Infringement of copyright or intellectual property is a bit of a mouthful and "steal" or "theft" can be grasped a lot quicker as "naughty" or "illegal". THe problem this causes is that when people other than the general public get involved, ie people like us who have to work within this area, it causes confusion because of a lack of clarity about what the use of code (either in individual line or completed apps) that you do not have a right to use actually entails. This includes the transfer of ownership of the right to run the code, use the code in other apps or pass off the code as your own.

 

The Theft Act 1968, Theft Act 1978 (and subsequent amendment in 1996) do not cover this and until a legal defintion is change, either through case law or through acts of parliament, then we should be careful about what we call theft (especially as Theft is an arrestable offence under the Police and Criminal Evidence Act 1984, section 24, in particualr sections 24(4) and 24(5) which allows for arrests to be made made by those without Constables' Powers or other authority). If ripping of a copy of a CD was legally theft I could go out and arrest any child I found in school doing it. Or any of my friends who made me a copy of a CD they have, or anyone who downloads Vista when they do not have the right to it.

 

And as mentioned above, it doesn't help that the group meant to assist with this uses the incorrect legal term themselves.