The myth, perpretated by the software industry (and accepted by some courts as fact, and enshrined somewhat into law in several states), that when one purchases a computer program at retail; one is not purchasing a copy of the program; one is receiving a "license" to use the program. And as such, the normal consumer protections afforded by the law (such as the right to sell the thing to someone else, the right to take it apart, the right to use it for any legal purpose you see fit), do not apply.
Some of the rights reserved by publishers in this doctrine probably could be inferred from copyright law. For example, restrictions on the ability to install one copy of a program on more than one computer at a time--no license is needed to prevent this activity. Others are more questionable--does H&R Block have a legal right, under copyright law, to prevent me from giving my copy of their tax software to my friend (assuming once I'm done with it, I destroy my copy)? Under copyright law, the answer seems to be "no"; if I'm done with a copyrighted work the First Sale Doctrine says that I can dispose of it provided I do not keep any copies.
Is the position that the license is a myth because retail sale does not constitute a binding contract between two parties, or is it that software cannot be "licensed" due to the inherent nature of software?
- The position is that retail sales ought not be modifiable by ex-post-facto contracts; and that there ought to be a strong presumption against any attempts to require retail customers to waive their rights as a condition of sale. Your landlord doesn't get to put language into the rental agreement saying "you know the protections the law provides to renters? They don't apply to you, bub." If you buy a new car at the dealership, the dealer cannot require you to waive your rights under the state's Lemon Law, or any other consumer protections. Why should software--or music, or movies--be different in this regard? There is a belief among some that copyright trumps (and should trump) other consumer protection laws--a belief that I consider to be fundamentally wrong.
- While not directly related to EULA's, one of MicroSofts arguments in its various anti-trust cases (currently it is making this argument in Europe, though I suspect the European anti-trust authorities won't buy it) is that any legal ruling requiring MS to modify it's software would violate its copyrights--in other words, its copyright on Windows is a sacred thing which may not be touched or sullied by other actions of law. It made the same argument (without much success) in the US antitrust case (which it was losing badly, until the change in power in Washington brought in foxes to guard the henhouse).
If you had to actually sign a licensing agreement prior to receiving the software, would that contract be valid and enforceable?
- If the contract was negotiable and I agreed to the terms up front, yes. But such terms offered on a "take it or leave it basis" is what is known as an "adhesion contract" and is subject to greater legal scrutiny.
Retail sale isn't a binding contract between two parties. The legal concept involved is named adhesion.
- Actually, there is an implied "contract" covering retail sales, but it's terms are set by law--and certainly don't include any of the stuff found in EndUserLicenseAgreements. And in many cases, the law prohibits consumers from waiving their rights as a condition of sale. EULA's appear to be a legal exception; were Ford to demand, as a condition of sale, that repairs only be done at the dealership, such an arrangement would rather quickly be struck down.
We are having an issue whereby there is no sales-tax (California) if we download the software electronically. However, if any physical media is received, such as a CD, then sales-tax is owed. But if we order say 10 licenses and just one CD, we'd still have to pay the 10 license sales tax if we use that one CD to install the 10. This whole thing sounds fishy.
Licensing Myth