I've been thinking and pondering about software licenses, and copyright in general, for quite a few years now. Above all else, here's what really gets my goat: EULA's.

Most EULA's read something like this (obviously much more concise than actual licenses):
What this basically says, in layman's terms, is "We give you, the user, permission to install and make a backup of our software, but you may not take it apart." I understand the software maker's intention and desire to limit what people can do with the software, but let's examine the terms more closely.

"LICENSE" section: this gives the user a couple of permissions which the user already has through copyright law itself, so the "license" is fluff to make the user feel warm inside, or something.

"RESTRICTIONS" section: here's the real meat of the so-called license. The copyright owner wants to take away rights from the user.

What does this mean? It means that you do not have to accept the EULA to install and use the software. Of course, the software's installer would most likely present the EULA in such a way that it "requires" the user to accept the terms before installation can proceed, but I argue that this is purely a technical obstacle and not a legal one. If the user is savvy enough to bypass the EULA without accepting it (eg, by manually extracting and installing all program files), they are still legally allowed to install and use the software. Since the EULA was not accepted, none of its restrictions come into play, including reverse-engineering or translating the software, as those activities are (currently) legal.

(On the other hand, if you actually clicked "I accept" on the EULA installer page, then you'll be bound by its terms. You'll be giving up some rights and get nothing in return that you didn't have already.)

End of rant.

Often times, you'll find EULA's include something similar to the following:



It's a pesky way to get around something that you've laid out. I can't state where I read that from, as it's been a while since I've read any EULA but it was at the top. It was probably on the latest PSN update (whether EULA or FW update, which they've had a few EULA updates recently it seems).

Exactly this.

I know that driver software and utilities packaged with hardware (for example, I know this was the case with my WRT54GL and my cable modem) often have stickers on the packaging indicating that you must accept the license agreement (usually printed on a piece of paper included in the package) before using the software, and that breaking the seal indicates your acceptance of the terms.

Ah, yes, thanks for reminding about that little trick. It's a way of saying "By doing something that you already have the right to do in the absence of a license, you accept the terms of a contract that takes away some of your rights and gives you nothing in return." I argue that this statement itself is not legally binding, since installing and using the software is a normal activity when buying software, and you don't need any permission to do it either.

Last time I checked, CD's and DVD's don't have licenses, and even the MAFIAA doesn't try to pretend that a license is needed for using CD/DVD's either, so why do software makers think one is needed for using software?


The issues surrounding EULA's are in large part the same as for free software licenses like the BSD license and the GPL: in the absence of the license, you have a right to install and use the software, and you have many other rights as well: reverse-engineering, publishing benchmark information about the software (I'm looking at you, Netscape), installing it on any type of machine that you want (*cough*OS X*cough*), and more. The big difference is that EULA's often attempt, usually in a non-legally binding way, to remove many of those rights, whereas the free software licenses grant additional rights. Since you don't need a license to use the software, you can ignore it. If you want the additional rights that a free software license grants (such as the right to redistribute the software), you have to follow its terms in exchange for those additional rights. If you don't follow its terms, you are in breach of copyright.


Here is the relevant section in US Copyright Law governing the installing and use of software (in case you thought I'm completely off my rocker):

Source: http://www.copyright.gov/title17/92chap1.html#117

In most cases, installing software creates a copy of the software onto the hard drive of a computer "as an essential step in the utilization of the computer program". Running it creates a copy of the program from the hard drive into the main memory, so this is an essential step as well.

Making a backup copy ("for archival purposes") is also granted explicitly by Copyright law.

I also believe this section covers CD's and DVD's too:

CD's and DVD's certainly fit that definition for the purposes of copyright law--a CD is nothing but a set of statements (PCM-encoded data) that are used in a computer (a CD player may be considered a computer) in order to bring about a certain result (audio). Likewise with DVD's; MPEG data, for one, is a bytecode that is used indirectly in a computer (it's interpreted/executed by a virtual machine, ie, a codec) in order to bring about a certain result (video and audio). The menu system on a DVD is also a set of instructions.

This means that you, as someone buying a CD/DVD, has a right to make an archival copy of said disc, despite the MAFIAA's wishes to the contrary.

Does this mean that I could go into an installer, remove the EULA text, and replace it with nulls? Then I'd be agreeing to nothing when I ran the installer...

Audio/video CD's wouldn't apply there per that statement as they are (mostly) simply data and don't contain (data) any instructions. The program on the machine simply reads the data through a program. They aren't instructions as the file itself can't tell a computer what to do. Tell as-in control the hardware isn't what is does. Codecs are programs that encode and decode data streams. If it executed them as code, then you can have a wav file that holds malicious code, which isn't possible as they are just data.

The menu systems, yes, those are programs, but the audio/video isn't, just as a gif of KermM's hair ( ^_^ ) isn't a program or set of instructions. Besides, that link already defined audiovisual works and defined them completely differently from a computer program

Just my opinion, don't explode me for it.

The data is itself a set of instructions for a specific program to do a specific thing. An audio CD's data tells a decoder what tones to play through the speakers at what time. A DVD's mpeg data tells a decoder what it should display on a screen, what color each pixel should be, what pixels should change from one frame to the next, etc. It can't do anything malicious because it can only instruct what an audio or video device plays or displays.