But this is what I am saying - copyright law is copyright law. Breach of copyright is breach of the law, whatever the situation, EULA or no EULA. Suppose that, at the bottom of a long EULA, you put in a statement "Under the terms of this agreement, any property belonging to the person installing this software automatically becomes the property of the vendor of the software." Do you believe you could enforce this if the user clicked "I agree" without reading the full text? If you believe that any terms become legally binding if the user installs something, then, well, an easy way to riches surely opens up before you. You only have to nail a few people like this to be on Easy Street. All your copyright law above does not cover this. I don't dispute that any creation is the copyright of its creator, and I uphold that absolutely. What I don't see in any of the law posted above is that the terms of an EULA give the software vendor any rights over and above standard copyright law, and that such additional rights are enforceable just because the user installs the product. If such a law did exist, it would be assinine, because so easily liable to abuse as in the previous paragraph. The point about who clicked a button seems to have been misunderstood. If I sign an agreement, it's enforceable because it's quite evident that I, myself, put my name to it. With installed software that is not the case. If I have software that I didn't install, how can it be said that I entered into an agreement? And of course, this is common, since most PCs come with some software preloaded. If you think that ANY TERMS (not just copyright) are enforceable just because someone buys a PC with that software loaded on it, then again, the possibilities for abuse are opened up. Don't imagine I'm knocking copyright, I'm not. I am against the idea that, for example, Microsoft have the right to control the contents of any document written using Microsoft software. (It's rumoured that the MS Office EULA contains, or will contain, a clause prohibiting the use of said software to write anything derogatory about Microsoft.)

the company I worked for till recently got round that one quite easily, in the past customers had to sign an agreement, recently it was decided legally that just by using the service they agreed to all the terms in the agreement whether they sign an agreement or even read it. Rob

Actually Phantast, you have a point there. Sorry, I misunderstood your previous post. My apologies. In the case of pre-installed software, I agree with you. My point was, if you have pirated software on your puter, you can't just say "Oh, I guess my neighbor installed it when I wasn't looking" I'm no lawyer, but I believe copyright law has been built up over a long period of time, using precedents. EULAs? I have no idea what their legal status is. mac

An eula is a contract by the owner of the item and the person who downloaded it/bought it. Violating the End User License Agreement (EULA), which comes with most software, is also against the law. EULAs tell the owner, among other things, how many computers the software can be installed on and how many copies can be made. Some software, such as Netscape Communicator is freely available, but is still protected by copyright. As in the case of Netscape it may be illegal to distribute certain freely available software packages. EULA's can and are enforced. They can be used to install spyware on your computer when you are installing something else, they can be used to remove your rights of your products without you knowing it (geocities and the public 2000), It can be used to grant rights to install programs even virus' that you don't want or need on your computer. Taken from TechTV.com What is the basic law regarding making archival copies? The short answer to that question has two parts: one part involving copyright law, the other involving contract law. First, under a provision of the Copyright Act (17 U.S.C. 117, if you care to look it up), you have the right under copyright to make an archival copy of a computer program you lawfully own a copy of, subject to some conditions. For example, you must destroy the archival copy when you no longer own the original copy of the program. The second part of the answer is that although the underlying copyright law sets forth the default position, this can be affected by a contract between the vendor and the user. Generally, PC software is distributed pursuant to end user license agreements (EULAs). These EULAs often take the form of what is called a "shrink-wrap" or "click-wrap" agreement, where a user shows his or her assent to the contract by either breaking the shrink-wrap or clicking through an agreement when he or she installs the program. The EULA for a particular piece of software may restrict users' rights to the software, including their right to make archival copies. Under some EULAs, users do not even own their copy of the software, but merely receive a license from the vendor to use the copy. The EULAs for individual software vary, so read the EULA for the software in question for details. Why is most software distributed under EULAs? EULAs are somewhat specific to computer software. Most other forms of intellectual property are not distributed pursuant to a license. You don't have to assent to a license agreement when you buy a book or music CD, for example. EULAs began as a practice by software vendors in part because there were doubts in the early days of software programming (pre-1980) as to whether computer programs were copyrightable subject matter. Some people thought that copyright should and would be limited to more creative and nonfunctional works such as literary works, and there were some doubts as to whether copyright applied at all to computer programs. The software industry used contracts to try to protect computer programs, fearing copyright law would not cover its work. Today, this practice continues even though it is now well established that copyright law does cover computer programs. Is it OK to break copy protection schemes to make archival copies? No. A provision put in place by the Digital Millennium Copyright Act expressly forbids the circumvention of effective technological copy protection (17 U.S.C. 1201). This is in addition to and separate from the copyright and contract law questions. A defense to copyright infringement, such as making archival copies, is not necessarily a defense to the prohibition on circumvention of copy protection. There are exceptions to the general prohibition on circumvention of copy protection, including for the purposes of creating interoperable programs or for encryption research, but these exceptions are rather narrow. Please note that this brief overview is a general discussion of the legal issues surrounding archival copies. It is intended for informational purposes only and is not a substitute for professional advice on specific questions. Because of the generality of this discussion, the overview may not be applicable in all situations and should not be acted upon without specific advice based on particular circumstances. For example, individual situations may differ depending on the specific terms of an EULA and on other applicable state and federal laws. Now that is just on archived copies of software but it does point out that EULA's can restrict your right to make copies EULA's are enforcable under contract and copyright laws. They come in several forms but most are called click wrap eula's or Shrink wrap eula's ----Another website Lost the page info- HOW EULA came in existence? In the early days software development focused on the creation of customised software for mainframe computers and other computers. Contracts for this type of custom software were few, and involved two distinct parties whose lawyers could discuss all the terms of such agreement between them. This model changed when personal computers and their accompanying software became mass-market items and available off the shelf. In such market, the number of users increases by big numbers. The software programmer and the user could not face to face for the license negotiate terms. Thus the terms of such licenses had to be standardised and concise. The software license agreement needed to be presented to the customer in a fashion that would allow for mass distribution of software, yet would draw the customer's attention to the conditions under which the publisher offered to allow use of the software The standardisation also arose because of the provisions of the Copyright Act and other Acts in USA. SHRINKWRAP EULA The most commonly used EULAs are of the "shrink-wrap" or "break the seal" variety types. EULAs in this form are printed: On product packaging, A diskette or CD-ROM container (such as an envelope or a plastic case), A card inside the package, A page of the user manual. The user is asked to "accept" the terms of the agreement by performing a certain action designated on the package or in the EULA, such as: Tearing open the plastic wrapper covering the box, Breaking the seal on the diskette container Installing or using the software. The user can refuse to accept and enter into the agreement by returning the software product for a complete refund. CLICKWRAP EULA Software programmers also have EULA via media other than paper. One popular method displays the EULA on the computer screen the first time a user operates the software. The user can then accept the EULA's terms by pressing a certain key, clicking on a "yes" button icon or by clicking I Accept icon or taking some other specified action. This form of contract is popularly known as Clickwrap agreement Presenting EULAs via the computer screen is especially important now that more software is being distributed electronically through Internet and other media. For this form of distribution, the EULA often appears on the user's screen before the software is downloaded to the user. If the user assents to the on-screen EULA (usually by typing "yes" or "I accept," clicking on an icon with similar words, or simply pressing the "Enter" key), the user may install the software. Some features of EULA explained. I. It grants normally a nonexclusive, nontransferable personal license to the user by the software owner to use the software subject to the agreement. II. It is not a sale of Software. The licensee does not get rights as that of the purchaser of goods. III. It prohibits user to do certain things for example Reverse engineering, Decompiling, making additional copies, renting, leasing etc. IV. The software owner disclaims certain warranties. V. If the terms of the EULA are not acceptable to the consumer then the software product can be returned to the vendor and license fees will be refunded to the buyer in case of off the self-product. VI. In case of online media the license terms should be disclosed in advance of a buyer's purchase of the product or service. In such case of online EULA, the consumer if not accepting the terms will not be required to make any payment. A principal concern for computer software producers is providing adequate protection for their programs. Generally, software is written by a programmer in source-code form, which is in a language understandable by humans. Once the source code is completed, it is processed through a compiler that produces the object code. The object code is comprehensible to the computer on which it runs but not to humans. Because of this unique way computer programs are created, the programs are susceptible to "reverse engineering" or "decompiling." The user of a program may take the object-code version of the program and process it through a decompiler, which produces a higher-level source-code version of the program. Humans can with some effort, understand this source-code version. Thus, the secrets of the software producer can be discovered by anybody who is willing, or who has a financial incentive, to go through the process of reverse engineering. As a result, software producers include an express provision prohibiting disassembly or reverse engineering in their EULA. Warranty Disclaimers Vendors, through the use of shrinkwrap licenses, seek to disclaim both implied and express warranties by including a provision claiming that the program is provided "as is" without any type of warranty. Other licensing agreements limit the warranty for a specified amount of time, usually for ninety days, one year, or both. These provisions will be subject to the laws of land. Shrinkwrap License may broadly cover following provisions. Product name (the "Software") Limited Nonexclusive, personal License Restrictions on copying No Reverse engineering, Decompiling, making additional copies, renting, leasing etc allowed. Limited Warranty Limited Remedy No Incidental or Consequential Damages Termination Entire Agreement, etc. General clauses Jurisdiction EULA's ARE enforcable. It's based on contract and copyright law and is enforced by law you can go to court on them however and you MIGHT win but usually unless the terms are completely rediculous usually not

um, netscape can be re-distributed, netscape has available customisation kits to allow you to alter the home page, and bookmarks that come with netscape, the boot splash screen and logos displayed. then it makes a copy of netscape for the express purpose of you giving it away. want a renderosity netscape? get the app from netscape and make the boot splash, the still and animated gif for the top right, pick a bookmark file and make it. phantast, why are you arguing about our eula, when we only restrict redistribution? it's not like we are trying to stop you from making a buck if possible.

Stormrage, Thanks for the info and for clearing up the EULA situation. I, personally, have no problems with someone prohibiting re-distribution, That seems the very minimum to ask if you're making your work available for free. As a professional photographer, I know that images are protected by a very strict and long-established series of copyright cases, but even there the law changes after years. In a famous case in Italy, a photographer (Oliviero Toscani - Benetton, Stefanel, etc) took a company to court (and won) because he disagreed with the MORAL use to which they had put his pictures. That set a new precedent. So if I do a shoot for you and you use those pics to promote porn or racism, I can sue under copyright law. Fascinating subject. mac

Several companies have gotten in trouble with things like that. Not sure which company it was but one of the graphic companies put a no "porno" use in their agreement and it was shot down. The thing to remember with EULA's is that they cannot go against the Fair Use laws. taken from : http://www.cetus.org/fair5.html The Fair-Use Statute The following is the full text of the fair-use statute from the U.S. Copyright Act. Section 107 of the Copyright Act of 1976. Limitations on exclusive rights: Fair use Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -- 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2. the nature of the copyrighted work; 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. (Emphasis added) The Meaning of the Four Factors While fair use is intended to apply to teaching, research, and other such activities, a crucial point is that an educational purpose alone does not make a use fair. The purpose of the use is, in fact, only one of four factors that users must analyze in order to conclude whether or not an activity is lawful. Moreover, each of the factors is subject to interpretation as courts struggle to make sense of the law. Some interpretations, and their subsequent reconstruction by policy-makers and interest groups, have been especially problematic. For example, some copyright analysts have concluded that if a work being used is a commercial product, the "nature" factor weighs against fair use. By that measure, no clip from a feature film or copy from a trade book could survive that fair-use factor. Similarly, some commentators argue that if a license for the intended use is available from the copyright owner, the action will directly conflict with the market for licensing the original. Thus, the availability of a license will itself tip the "effect" factor against fair use. Neither of these simplistic constructions of fair use is a valid generalization, yet they are rooted in some truths under limited circumstances. Only one conclusion about the four factors is reliable: each situation must be evaluated in light of the specific facts presented. The fair Use statue from the US. Copyright website (http://www.copyright.gov/fls/fairuse.html) Fair Use One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright act (title 17, U.S. Code). One of the more important limitations is the doctrine of fair use. Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law. Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair: 1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; 2. the nature of the copyrighted work; 3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. the effect of the use upon the potential market for or value of the copyrighted work. The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the authors observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported. Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work. The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission. When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of fair use would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney. Fair use though is one of those things that you have to go to court over to find out if you or the owner is right. Not a lot of people want to test that. A liscense is the legal mumbo jumbo of a agreement an eula is the fair use of that product. I have seen a lot of people violating the fair use statute, Especially in the poser community. Basically what it boils down to is I can tell you what not to do within reasonable limits. Such as redistributing and warezing. I can tell you you can only put it on 1 computer at a time. But I cannot limit your use of the item (ie I can't release a character and tell you you can't do porno with her, I cannot tell you that if you buy my software that you cannot sell it to your friend for 10 bucks. I can't tell you that you can't give it as a gift to a friend) I Can however tell you that you cannot duplicate that software and sell it to 50 friends.

The one conclusion I draw from this is that lawyers and their illegitimate offspring, politicians, have made the world far more complex, frustrating and expensive than most would like. Whether it's necessary, I don't know. Human nature and technology would seem to dictate that you can't run a modern society based on the Golden Rule alone but it sure would be nice.

Jacqui, the only argument I have against your EULA is that it isn't needed, as all its provisions are already covered by copyright law. Stormrage, the rub is what terms are considered "ridiculous". Having rights to install virus software on the host computer strikes me as ridiculous, but you tell me that is upheld. What about having the right to sell the licensee's house and pocket the proceedings? There is a very big grey area here. If this is the law in your country, it strikes me as very bad law.

Phantast, but without it, people would argue that the coprights aren't applied. a eula ensures that everyone knows that the copyrights exist and applies to the files in the archive. and the rights Stormrage is talking about are for the United States. those are the laws she is quoting.

Phantast.. Microsoft EULA that c1rcle mentioned was upheld by one court and then defeated in another, now it is being considered by another court. Their terms are what you would consider ridiculous, and yet one court said it was perfectly reasonable.. and this is in the US. Spyware is being installed if you use such programs like gator, kazaa or a host of other software and yet as soon as you click agree on the install agreement, YOU ARE ALLOWING THIS and it's upheld by the court. You can't get damages paid to you for this because YOU AGREED TO IT. Ridiculous or not this is US law. and it's being allowed every day. Shrugs No matter what you want to believe, it's there. Not sure where you are from, but I am sure it's the same kind of situation wherever you are. Since most countries take their copyright law from the US or at least have international agreements on copyright laws.

Jacqui, that argument would not work. Copyright is ALWAYS in force, whether you advertise the fact or not. The only exception is if you explicitly relinquish copyright, or explicitly permit redistribution in ways that otherwise would be breach of copyright. The law is quite clear on this in most if not all western countries. Stormrage, you illustrate perfectly what I mean by bad law. It's actually bad law in two ways, one because it dangerously imperils the rights of the individual, and two, because it's very badly defined, which is why the courts can disagree in the way you describe. Consider an EULA with any of the following terms: 1. This item may not be used for commercial purposes. 2. This item may not be used for erotic purposes. 3. This item may not be used for religious purposes. 4. This item may not be used for Jewish religous purposes. 5. This item may not be used by Jews. Which of these would be considered enforceable in a US court? I presume not number 5, which is offensive and probably illegal. But the boundary between each is rather narrow.

actually Phantast 2,3, 4, and 5 are not enforceable because it is limiting the fair use of the item. 1. is enforceable because it can effect the potential market for or value of the copyrighted work

Hmm. Assuming erotic or religious art counts as "criticism, comment, news reporting, teaching, scholarship, and research ... for nonprofit educational purposes".

Sighing But it doesn't count as that Phantast. Erotic or religious art is Art. You cannot release a set of pinup poses, and say I can't post the rendered character in that pose on Rotica. Nor can youtell me that I can't do an image with a character who is naked in your pose. You cannot put up a cross prop and say I can't use it to do the cruxifiction of Christ with it. You can tell me that you don't want me to use something for commercial work. or that I can't put it on more than one computer. Or that I can't redistribute the item. Or that I can't warez the item Is it honestly that hard to understand? The law is pretty clear and the grey area isn't as grey as some laws in the US. They aren't bad laws either, they allow people to let others use their copyritten item. Without penalty. If you couldn't image the freestuff area. Ohhh it would be there but a hell of a lot less stuff than there is now.

Oh, people can and do add this sort of stipulation (like no erotic use) to their readme files. I agree with you that they shouldn't. I agree that if they do, it can't be enforced. The point of my previous post was that "fair use" has nothing to do with it. Fair use, as I well know, consists of reproducing verbatim, text or pictures that are copyright, with acknowledgement of the source, but without permission of the copyright holder. This is permissable in reviews, for example, or in academic work. I know of one game fan site where the owner posted a lot of game screenshots. This would normally be of questionable legality, but he put very short game reviews on the same pages so that he could claim fair use. So, of my five-point EULA, you can certainly object to numbers 2-5, but you can't claim that they are inadmissable because they restrict fair use in the legal sense of the term, because they don't.

Actually yest they do and are inadmissable under us copyright laws. And fair use laws. It has to be reasonable and 2-5 are not reasonable. Now why do people have eula's AND licenses? Because it is the year 2002 and we are online. EULA's are not a license but they are a contract. You can stipulate that by downloading this product you agree to all agreements within, you can stipulate that by installing this product you agree to the agreements. That's legal. Fair use is the use of an item as described above. but you cannot restrrict someone from using an item. Only from certain things they might do with it.

Now we are coming to the real point. You've quoted a lot of copyright law, but as I see it, copyright law is not really relevant, what is at issue is contract law. Copyright and fair use govern whether you can redistribute something, and have absolutely nothing to do with what you can or can't do with it in terms of use. All my clauses 1-5 are to do with use of an item, not with redistribution of it. Copyright is irrelevant to this issue. (Oh, and my example of the game site was misremembered - it was a site with stills from Hollywood films. Most film companies try to stamp down on such sites, but if the film is reviewed, it's "fair use".) If you had a written contract between vendor and licensee, than all of 1-5 would be admissable in law (except probably 5 and possibly 4 as being in breach of other legislation). All sorts of other clauses can be valid in a signed contract, including payments, liabilities, and the right for the vendor to send people round and inspect your computer. If downloading a product consists of a legally binding contract, then, as far as I can see, all clauses should have the same force as in a written contract. The issue of "reasonable" hardly arises. If I have a contract with you which contains a clause saying that, for services rendered, you will pay me $1000 a month, and you sign it, that's legally binding no matter how small my services to you actually are. If you put a similar clause in an EULA, the only difference is that the user does not sign the contract, and may not read all the clauses. This would not be the case, though, if the legislation, under contract law, contains specific and clearly-defined cases of what may or may not be included in a non-written ("clickable") contract. For example, it may say that a EULA may control how the product is used but may not contain clauses requiring extra payment for the product. If this is the case, I doubt that the law specifically permits an EULA clause that the vendor may install spyware on the user's computer. Now, if you can find the relevant bit of contract law, we'll have a solution to the whole debate, at least for the US.

Phantast, the whole issue is your not liking us putting an EULA in out products. not our problem, we will put it in no matter what your opinion is. you think it needs to be examined, you go over contract law yourself. all software companies do include an EULA and a lot of the 3D model companies do also. might as well get used to having an EULA in files you download, since most people liked the idea and several others are also planning on putting them in. or else just don't download anything to avoid the EULA

Phantast.. not going to go over it again. This subject is quickly dying because we are rehasing things over and over. Simply put. EULA's are legal, certain things are allowed in the eula certain things aren't they can be used to get you to install spyware. whether or not you believe this.. it's your decision.

"EULA's are legal, certain things are allowed in the eula certain things aren't they can be used to get you to install spyware." And which things are allowed are not clearly defined, or are badly defined. (Badly, because if they ARE allowed to install spyware, they SHOULDN'T be. There is a difference between what is allowed in law and what is morally correct.) Jacqui, I only said that your EULA is redundant, because all its terms are already covered by legislation. Where EULAs are actually useful is where they give the consumer additional rights (not give the vendor additional rights). For instance, in specifying how many copies the user is allowed to make (e.g. copying to a laptop). What might be more useful to you would be a copyright declaration. I know that Dendras has done some research in this area and come up with a template document. It doesn't change the status of anything, but makes the copyright situation clear in the correct legal terms.

laws don't have morals Phantast. Never did. Maybe it would be better if they did but they don't. What is useful to us we use. What we doesn't pertain to us we don't use. Everyone has their ways of doing things. Dendras does buisness his way, you do buisness yours and we do buisness our way. We don't and won't copy anyone while doing buisness. I Hapen to prefer EULA's rather than a copyright declaration. Because as you have said it's redundant. but since it seems people want a mile of paperwork in each item.. might as well eh? We are in the process of redoing our license and EULA thanks to this discussion.