Talk: Software license
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I don't know much about law, but that (FIXME) thing has to go. --cprompt
I've removed the (FIXME) tags, I don't know if I could have been more specific but the change covers what was originally missing. -- Al b
The enforcebilty of these license is actually in dispute see New York v. Network Associates d/b/a McAfee Software, SoftMan v. Adobe, Novell, Inc. v. CPU Distrib., Inc., Vault v. Quaid, Step-Saver Data Systems, Inc. v. Wise Technology, about 2 or three dozen cases where a sale of software is consider a sale under the UCC, and there is much more.
The enforcibilty in the U.S., if enforceble at all, of such shrink wrap licenses depends on three factors;
1. Does the license pre-empt first amendment garantees and other garantees under the US Constition, EG; does it restrict your freedom of speech such as in Network Associates where the EULA didn't allow users to write disparanging, but true, things about the software.
2. Does the license pre-empt federal law Eg; Copyright law See Softman V. Adobe. . Remember with the exception of the GPL and other free licenses it is a contract, State Law, as you did not purchase the software- See Step-Saver Data Systems v. Wise Technology, Mai, and Microsoft v. Harmony to see why software is licensed and not sold (To Basically Pre-Empt first sale doctrine and other limitations and excemptions to copyright). Depending on which court the case is heard in the Judge may or May not allow the argument that Contract Law can Supercede Federal Law. SCO v. IBM is a paradox becuase they are arguing both ways. They argue, not that this is correct, that the GPL is unenforcable becuase the the FSF through the GPL and not Congress dictated the terms thus any works released under the GPL is in Public Domain through the principles of Latches while at the same time arguing that IBM can not give code to the Open and Free Source comunities, in paticular the Linux communities, becuase the contract between ATT and IBM has a derivitive cluase in it.
3. Does the License conform to UCC or where passed UCITA for a contract.
A side note is that these contracts are challanged, sometimes sucessfully, all the time.
Also may be a good idea to write about the history of these licenses and also point out that the term Use, as in the AT&T license on Unix is very different on lets say teh MS Windows EULA.
Finaly should the stub EULA article be merged with this one, whic is not so much a stub.
All the documents I have seen that call themselves `EULA's are agreements* (not licenses). Whereas the document says a `EULA' is a type of license. Should this not be rectified. Also, maybe point out that the word has no agreed on definition (and certainly is not a techinical legal word), therefore is used in various different ways by different people.
[* Ones that, yes, are actually probably invalid in most jurisdictions, including, as I understand it, the EU; but, nonetheless, they attempt to be agreements between two parties as opposed to a one-way grant of permission.]
--Joe Llywelyn Griffith Blakesley 14:23, 2004 Nov 12 (UTC)
