Shrink-wrap licensing

[Rod Dixon, J.D., LL.M.]

The software license between the end-user and Micro$oft is not gratuitous.
The archival permission provision of the Copyright Act to which you refer
may prevent MS from claiming that an end-user infringed the company's
copyright when he or she copied the software once to use as a back-up copy,
but that does not mean that an end-user need not PAY for the non-exclusive
right to copy/use the program to begin with. You may recall that copyright
belongs to the copyright holder. Under our narrowly written hypos, the user
has no rights in this regard unless the copyright holder grants him/her a
right (assuming that fair use is inapplicable). Consequently, the user is
getting something of value in exchange for buying the software. The user has
no right to use the software without payment and agreement to the terms of
the license.

Of course, this may not appeal to some of us as just or proper, but that is
the way it is. This should not be surprising when you consider that
copyright law in the United States has been amended by Congress to benefit
those that have the money. clout, and influence to make profitable
copyright-protected works. (Of course, I am not simply speaking of Micro$oft
or software developers!)

I do not want to belabor the point about books. Yes, printed books are
different than information technologies like software. This is the result of
habit and practice, not copyright law. Book publishers certainly could have
sold their books with licenses, if they so desired. To illustrate the point,
observe how e-books are sold. You will notice an interesting thing: e-books
will be licensed, just like software...with many of the same restrictions.
Can you imagine a world with only e-books, which are sold with licenses?


___________________________________
Rod Dixon
Visiting Assistant Professor of Law
Rutgers University School of Law - Camden
www.cyberspaces.org
rod at cyberspaces.org

Chief Counsel
FreeBuyers Net, LLC
www.freebuyersnet.com
dixon at freebuyersnet.com



> -----Original Message-----
> From: Mark Wells [mailto:mark at pc-intouch.com]
> Sent: Tuesday, May 02, 2000 11:45 PM
> To: Rod Dixon, J.D., LL.M.
> Cc: license-discuss at opensource.org
> Subject: RE: Shrink-wrap licensing
>
>
>
>
> On Tue, 2 May 2000, Rod Dixon, J.D., LL.M. wrote:
>
> > Here's another one: if you walk into a computer store and steal
> a copy of
> > Microsoft Windows 2000 (...because it costs too much;-)) (with the
> > shrinkwrap license in place), are you bound by the license if
> you break open
> > the shrink wrap? Does the license bind a thief as well as a buyer?
>
> There are, of course, much easier and safer ways to steal a copy of
> Windows 2000.  Are _they_ exempt from the license also?
>
> If the license is a contract, to which the end user agrees by buying a
> copy of the software, why does the end user give the money to someone
> other than Microsoft?
>
> Or, to examine a different issue, what does the end user receive from
> Microsoft in exchange for a chunk of money and the acceptance of
> restrictions on certain rights (such as reverse engineering)?  Microsoft
> doesn't _grant_ the end user the right to use the software or to make
> archival copies--these are already allowed under copyright law, and the
> user is expected to surrender other rights. This seems like a gratuitous
> contract.
>
> It may be argued that the software vendor is in the same position as a
> publisher of books: as the owner of the copyright, it can charge for
> copies.  The problem is that the book publisher (or recording company, or
> movie studio, or other publisher) never claims that buying a copy of their
> book constitutes acceptance of a contract.
>
>