Heinz wrote:
"Heck, just pull out that dusty old card in the box called "license agreement". It says exactly what you can and can not do, period.
And remember that dialogue box you clicked in a hurry while installing, the one that says "I understand and agree to..." (etc.)??? That was a legally binding contract that said you agree to the terms of the license agreement. "
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That is not quite accurate. (While I may not be a good enough recording engineer to offer much useful advice in that regard, I do fancy myself a pretty decent intellectual property lawyer.
)
Although someone who purchases software is generally prohibited from copying it for commercial purposes, that prohibition does not come from the license agreement you refer to.
In most states, courts have held that a license agreement that is not provided to the customer until after the customer has already purchased the software and either opens the box (such as the "dusty old card" you mention) or installs the software (such as the dialogue box) is not a legally enforceable contract. The courts' logic is that the contract to purchase the software is created at the time the customer purchases the software (i.e., when the purchaser pays his money for an unopened box at the cash register). As soon as the customer enters into that contract at the cash register, the customer has a license to use the software subject only to the conditions that the customer can be said to have bargained for at the cash register (which is probably nothing unless the outside of the box discusses the scope of the software license). Any new terms and conditions that the customer did not know about at the time that contract was formed (such as a license agreement that the purchaser does not see until after opening the box or a dialogue box purporting to impose a condition the use of the software that the customer does not see until installation) are not part of that contract. As a result, contract law does not generally provide a remedy unless the manufacturer can establish that the license restrictions were provided to the customer before purchase, as may be the case if the license agreement appears on the outside of the box.
That's not to say it is OK to pirate software if there's no license restriction on the outside of the box. There are plenty of legal remedies against copyright violations that flow from law other than contract law. In addition to the federal copyright laws, many states have unfair competition laws that may prohibit pirating software. But while there are an abundance of legal remedies against pirating software, software manuacturers have generally failed in their efforts to enforce the "dusty card in the box" as a binding contract.
So why do they put it in there? Three reasons. First, many software developers have never had their intellectual property lawyer research the issue, and the developer may think its enforceable. Second, even if the developer knows it is not enforceable, a lot of customers will believe it is enforceable. And that may provide a deterrent. Third, even if the license agreement and dialogue box are not themselves a binding contract, they are pretty good evidence in a copyright infringement case that the pirate knew he was not supposed to be pirating the software.
Cheers.
