Thursday, September 07, 2006

I know there are some great legal minds out there, so...

Gratuitous personal use of the blog for Legal advice follows:

The situation:

I have been granted a free licence for a piece of software that can be used to develop other software. It is a tool, none of the end-product would have any trace of the tool's code or use any of the tool's functions.

The issue:

The license for this tool has the following clause:
You may not use the Software or any information made available for display using the Software, or any outputs generated with the Software, or any application developed with the assistance of the Software in any commercial or business environment or for any commercial or business purposes for yourself or any third parties.

You may, however, use the Software for non-commercial research or personal use only.
(bold mine)

The question(s):

1. Can they really do that???? It's like saying that you can't sell a house made with the hammer I sold you, but you could give it away.

2. Is that enforceable in any way?



I am a huge believer in the rights of software authors; I make my living at that game so it follows that I would be in favor for getting paid...

This seems over the top stupid. If I read this right, I must uninstall my free (for beta testing) copy post-haste and pitch it forever. Anyone buying this tool would almost certainly be in violation of this clause as open source software often is used for commercial purposes.

Maybe Dr. Frisch isn't the only one that is "teh crazy"®.

14 Comments:

At 5:39 AM, Blogger Sinner said...

If you are not commenting on the issue in this post, please use the previous open thread.

Thanks.

 
At 5:52 AM, Blogger Hawksp said...

Sinner,

I dunno.

It sounds pretty harsh. (and I don't know much about the the private sector) But I do know there are some pretty unreasonable rules about people developing things while working for some firm and said things belonging to the firm. I guess it can apply at work or in your spare time. They get away with it.

Probably doesn't help.

 
At 5:58 AM, Blogger Sinner said...

I'm am very familiar with "anything done on our systems or on our time is ours", I insist on it as an employer, but this is somewhat different.

I want to use this tool, but if that means that anything I ever write can never be sold for profit, I can't.

I guess I could use it for my open-source projects, but I think that would still violate the license and I would constantly be installing it and uninstalling it because I work on both open-source and closed-source projects.

Also, even if I did uninstall it, would that be a shield? I doubt it as it seems unreasonable that someone would do that and a jury would disregard any claim to have done that.

 
At 6:23 AM, Blogger Hawksp said...

The only other thing I would ask is if the software you're using is totally independent of the final product, what would be the means that they would use to show a relationship to the two.

An engine that say, runs 1st person characters in a game would be evident because that becomes part of the game. But by what you said, the development tool you’re using is not actually necessary for the final product to operate. To me it would be like Bic telling me I can’t use one of their pens to write the next great American novel.

Say their rule does stand. If you stand to make a profit, is it possible to contact them and ask them about licensing?

And I'm trusting teh cycle. I'm just going to be on a late shift again and I might miss it.

 
At 6:45 AM, Blogger BrendaK said...

Is it possible that you have an 'educational' version of the software? I know that some programs are free to educational institutions that have the same kind of clause, but you can purchase the real deal and be license free from there on.

I believe Visual Basic used to have a deal like that.

 
At 7:10 AM, Blogger Sulla said...

Here's the approach I've used in the past, and my wife as well.

use the free/beta/educational discount software to learn something. (The Macromedia suite academic edition, for example, is not supposed to be used for commercial websites. Or Foxit PDF reader is free for personal use, but they make their money marketing it to businesses.)

If something commercial actually comes from it and it's proved its usefulness, buy a copy, use it once, and call it legit.

When it's a hundred bucks or less, not an issue.

If it's $10,000 a seat...I'd think hard before even looking at it.

 
At 7:16 AM, Blogger Sulla said...

by "learn," of course, I mean "develop."

She picked up an educational copy of Corel Paint. Nice discount. Until she's ready to use it in her business, it's not a big deal.

But when she's ready to use it for a client project, she'll purchase a nonacademic license.

 
At 7:38 AM, Blogger Sulla said...

OTOH, some of the EULAs I read are chiefly butt-covering exercises.

"we're not held liable if you die from using our product," etc.

One even makes explicit mention of using it on any computer connected to a weapon of mass destruction.

Cuz, you know, it would suck to have a suitcase nuke with a laptop trigger fail because of too much Nigerian email spam.

I miss Borland's "stuff our lawyers make us say" no nonsense license agreements.

 
At 7:44 AM, Blogger Paddy O'Furnijur said...

To answer your questions directly:
1. Of course they can. They can put anything they want in the license. They could insist you only use this product while wearing red boxers (they may make an exception for redheads). If you don't like the terms, don't use the product.

2. Ahh, here's where the problem lies. If that phrase is only in the license for the beta version, or for an academic version, but not in the commercial version, then it is most likely enforceable. The publisher's damages are loss of revenue from a sale of the software. Your damages would be...nothing. The software didn't cost you anything.

Since you mentioned that it is a beta license, contact the publisher and ask about licensing once the software is released. Ask about both the cost and that specific portion of the licensing agreement. Mention that you would like to evaluate the software, but want to make sure you can eventually get a version for commercial use before you go to all the trouble.

 
At 8:17 AM, Blogger Denny Crane said...

If I understand correctly, you're using a free license for the purpose of beta testing. Therefore, I assume the final product will be licensed for a fee (although your final version may be gratis if you're registered as one of their beta testers). Is this correct?

Regardless, they are free to impose whatever restrictions they want on the use of their betas. Moreover, they a free to impose whatever restrictions they want on free software. After all, they're not working their asses off to give you free tools for you to build profits. If they make your profit generation easier, they're entitled to a little something, you know, for the effort (Caddy Shack).

That said, the detection issue is a different story. From what you said, it sounds unlikely that you would be caught. That doesn't make it right, but it sounds fairly safe.

 
At 10:13 AM, Blogger Sinner said...

To clear some stuff up...

I help to beta test the software, they have now released it and sent me this free license as compensation for my beta testing efforts.

It is not an ED version, which, oddly enough, I CAN use most ed versions for my research. My legal department says no to this for "real work" but I am still considering it for my personal projects.

I love the product, in fact they are using my quotes in advertising and referencing my books.

I just can use the final version due to this license restriction...

As Paddy said, I don't like the license so I will not use it...

 
At 10:24 AM, Blogger Denny Crane said...

Have you called the vendor and asked for a less restrictive licence? If they're using your quotes, etc., they should be flexible in granting you a full license.

 
At 10:30 AM, Blogger Paddy O'Furnijur said...

Denny Crane!

What he said (it can't hurt to ask).

Paddy O'Furnijur!

 
At 11:21 AM, Blogger Sinner said...

Thanks All!

It seems that the verdict is that I am reading this right and have to legal recourse but to forgo the use of the tool.


I will drop them a note and ask.

Maybe if I threaten to remove the tril version from my next book CD, they might see it differently.

 

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