[X4U] Boot Camp [A]

[Randy B.Singer]

Stroller said:

>We like throw about analogies here on the internet, so here's one of  
>mine:
>Saying that it's wrong to buy an OEM copy of Windows for your own use  
>is like saying it's wrong to buy a 1kg bulk-bag of bird seed to plant  
>in the ground.
>It says "bird seed" on the bag! It's for feeding to birds! If you  
>want to grow sunflowers then you should go out an buy one of those  
>little paper packets of seeds from the garden centre (not the pet  
>shop!) and plant those! Those bird seeds are only licensed for  
>feeding to birds, and if no-one bought the little expensive packets  
>of sunflower seeds (which happen to be packaged by the same company,  
>and which cost 10x the price-per-volume) then the company would go  
>out of business! Shame on you!!


I'm afraid that your analogy doesn't work at all.  In your example you 
aren't purchasing a "license" for birdseed. You are actually purchasing 
birdseed.  The label on the bag that says "birdseed" does not create a 
license. A license has to be specifically created. Your example is a 
simple contract for sale.  Once you have purchased your birdseed you can 
do whatever you want to with it.  

The only limitation is that if you decide to plant it, and nothing comes 
up, you have no legal recourse, because you only contracted to purchase 
seeds that were suitable for use as birdseed, not that were capable of 
germination.  (In fact, most birdseed sold is sterilized and will not 
germinate.  That's why it can include marijuana seeds for certain types 
of birds that like them.)  At best, the label on the bag that says 
"birdseed" creates a term of the sale.  But there is no license of any 
kind involved.

A software license is just that.  You aren't contracting for the sale of 
the right to own the software itself. You never own the software.  You 
are contracting for the right to *use* the software. That's what licenses 
are all about; use, not sale. 
http://en.wikipedia.org/wiki/License
That software license just about always comes with specific written 
limitations.  Often (but not always) one of those limitations is that you 
can't resell that software.

If you sell that software anyway, you have breached your contract and the 
software developer has a civil cause of action against you for breach of 
contract.  You would be open to criminal charges also.  (Selling 
intellectual property that you don't have a license to is a crime.  It's 
much more obvious when you make a ton of copies of a software CD-ROM and 
sell them, but it is still a crime when you do it on a smaller scale)

The person who purchases that software from you hasn't broken any 
contracts.  However, they don't have a valid license to use the software. 
 Since software is intellectual property, the software developer has a 
civil cause of action against the purchaser.  There are probably criminal 
implications also.

This isn't just an intellectual exercise.  Businesses get busted in a big 
way all the time for using unlicensed software.  If an entity like the 
Software Publisher's Association gets a tip from a disgruntled employee 
that a business is using unlicensed software, what they often do to that 
business is something to behold.


 

Randy B. Singer
Co-Author of: The Macintosh Bible (4th, 5th and 6th editions)

MACINTOSH OS X ROUTINE MAINTENANCE
http://www.macattorney.com/ts.html