Subscription/Service Fees - Legality

David Davies ddavies at
Wed Mar 28 08:27:35 UTC 2001

On Wednesday, 28 March 2001 8:57 AM, Seth David Schoen wrote:

-> Some people think that copyright law doesn't actually allow you to
-> prevent people who have a legal copy of the software from using it in
-> any way they like.

In other words does transferring the software to another person also
transfer the person the right to use that software ?

Since legal obligations are inherently regional in nature perhaps the deeper
question is whether such an obligation is morally enforceable.

If a person chooses to release software (and source code) they have the
right to release it under whatever terms they choose.  
This is a basic right of the person who created it.  No ?

If the terms state clearly an obligation for people to pay for the software
if they choose to use it then by using the software we are obliged to honor
the creators terms, are we not?  

The user of the software has the right to choose whether they use the
software or not.  
This is the basic right of the user.

If the user does not want to comply with the terms they should choose not to
use the software.

-> D. J. Bernstein, author of qmail, is a well-known proponent of this
-> view:

The site makes many very interesting points.

One key point of the argument is the 
"In the United States, once you own a copy of a program, you can back it up,
compile it, run it, and even modify it as necessary, without permission from
the copyright holder."

The key point being "once you own" and the question raised therefore must be
at what point do you "own" the software.
After you obtain it by any means 
After you comply with the stated terms of the copyright holder.

And does this apply only to Closed Source Software ?  If so why ?

An interesting scenario.
Suppose I download the 120-day evaluation edition of MS Exchange 2000 from
MS site in accordance with the evaluation agreement.  

Is the software I receive mine because it is obtained legally ?

If I apply a binary patch that alters the software so it will to continue to
work after the 120 day period am I able to continue to use that software
indefinitely ?

Whilst noone likes paying money to Microsoft I think this is wrong.  

-> The usual assumption in the free software community has been that
-> probably software _can_ be accompanied with a legally binding license
-> which even regulates non-copyright activities.  But people don't
-> necessarily think that this is a good situation, just that 
-> this is the
-> way the courts or the industry are going.

It is perhaps NOT a good situation looking at it purely from the perspective
of making software more freely available.  

In terms of freeing intellectual property and advancing computer science it
might be a very good thing.  (I thought these were the greater goals of the

If by having a means of deriving revenue directly from initial development
efforts more commercial (and closed source) companies were to release
software as Open Source then that may be to everyone's advantage.
Just a thought !
-> Professor Bernstein points out that there is no consistent legal
-> precedent in the U.S. for licenses to regulate use.  Free software
-> licenses mostly don't attempt to -- although some licenses 
-> claim to be
-> contracts.
-> I think the uncertainty around this question prevented the OSD from
-> specifically saying that the license must not forbid the program from
-> being used for any purpose by anyone who has a copy.

So perhaps it can't be legally enforced in the U.S. (and elsewhere)?
That seems to be a very good reason why the OSD would not include such a
Does the decision to NOT include such a clause therefore indicate that the
OSD is NOT attempting to define such conditions as acceptable or not and
leaving it open to legal jurisdiction?

In other words is this perhaps something that is neither acceptable or
unacceptable under the OSD?

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