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bob.bernstein

First Draft of EULA - MOD 1

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nice work Thomas. one question, how does this protect the copyright in countries outside the US, where the laws and legal rights are not the same? I have dropped the EULA completely from my recent uploads because I feel like it is just a waste of time. It has had NO effect in the past, why would this be any different.excuse my ignorance on the subject. I think this is an important issue, and may even revive a waning freeware movement. I cant tell you how tired i am of getting email chewing my butt off for one problem or another, only to find out it was D/L'd somewhere else and not even the original package. can my work REALLY be protected outside (or even inside) the US?thanksjoe binka

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"can my work REALLY be protected outside (or even inside) theUS?"Actually, Joe, it can!For the past 2 years I and some associates have been researching and refining a legal process that would allow you to claim and then capitalize said claim against any party that injures you. I'll not explain the process here (no reason to reveal the strategy to the pirates), but if you'd like more info feel free to PM me.Greg

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I understand your frustration. What this EULA does is to set a value for your work, specifically stating that it is not Freeware and only the sites you designate have a specific license to distribute it. By placing a monetary value on your work, you have established a method to actually measure your financial losses were someone to distribute it in any fashion without your permission. Hard numbers that can be used to assess "damages" against unauthorized sites or individuals. Whether you are inclined to collect those damages is a question that remains for you to decide, but what it will do is give a site or individual pause before busting your copyright or EULA terms.Edit: It also finally does away with the question of interpretations of "freeware" and the rights of authors. Using this EULA, there is absolutely no doubt that this is NOT freeware. Thus, varying subjective interpretations of what a site or individual can do with that file are now made moot. It is not freeware. It has a value, and you control the license(s) for distribution. Any site owner or individual would be exceedingly stupid to bust the EULA in the face of having to pay potential damages for having done so.

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Thanks Tom, appreciate your work on this.CheersDan.

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I'm thinking of repaints in particular...How does this interact with licensing, i.e. the right of a trademark holder to profit from their stuff?Previously, there has been no need for people who own trademarks, particular designs, etc. to come after people who repaint. I believe this was done with the understanding that because there was no money made by the repainter, there was no value to dragging them into court to get anything.By putting a value on one's efforts, you have now given corporate people a way of quantifying their potential "losses", and it might give them ideas...Derek

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TomWhat happens when someone uploads files to AVSIM that are already on AVSIM to begin with.I develope the Active ILS series of airports found in the FS2004/Misc section. This is the only site I upload to.No one to my knowledge has been able to write approach/ILS XML data for airports with new runways that also have a new ILS and be able to get ATC to use that runway when visibility falls below 3 miles except me.However my EHAM_ILS_jv.zip is being taking a part and put into other uploads without any consent or acknowledgements. The latest is the EAHM_AFCADv4.00.zip that has showed up on AVSIM. This guy did not even change my original date and time for 2 of my files that he took out of my eham_ils_jv.zip and put in his upload. He just changed the name of the Flatten file and the ILS file.If I put a $10.00 fee on my hard work and he now has 942 downloads since Nov. 25 would AVSIM be liable for the $9,420 in the future? Who can I contact to see if his files can be removed?ThanksJim VileActive ILS Series of Airports

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Jim, we have a very simple policy. If there is a file on the AVSIM library, and you contest it for any reason, then we'll remove it until such time as you and the author of the other file come to terms. All you have to do is send an email to library@avsim.com explainging your case and the file that is offending your work.

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Hi,With regards to coding in XML - you need a patent on that!! Copyright only prevents someone from literally copying your work. I write XML, and I too can write complete airports in XML, including the ILSs, but if I was to then upload this original works to AVSIM, you couldn't do anything about it. If however, I took your work, copied it, and re-packaged it doing near enough EXACTLY what yours does (down to the name of the product), then you would have a good case. Copyright does not protect the idea (writing ILSs in XML), just the works. You need a patent if you want to protect the idea (ILSs in XML), but that can't be done as the info was created by someone else and publicly available before you applied for a patent, so you couldn't do it.The other problem is that the structure of XML is such that it is difficult to write outside the bounds of XML whilst not duplicating something somewhere. It's tricky to explain in a forum!!If someone has ripped off your work though, good luck sorting it out!! :)Best regards,Vulcan.

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Hi Tom and a happy new year to you and your crew Looks good but for one point IMHO. I mean the 'use upon a single system' detail. I have 3 computers running FS and sometimes the same add-on programs (although I can only use one at a time). Case this becomes standard, the paragraph below would currently make me a EULA-violater of such 'freeware' files. Obviously something, I wouldn't want to be. Therefore, perhaps a mention 'per household' or alike would be more adequate? Just an idea... >>OWNERSHIP AND RIGHTS:Ownership of this software resides with ________. Violationof any term of this EULA requires that you remove thissoftware from your system. You are granted a single,non-exclusive, license for use of this software on yoursystem. Your rights under this EULA are strictly limited touse upon a single system. You are bound by the restrictionsregarding distribution of this software, and violation ofthat stricture requires removal of this software from yoursystem.<< Thanks for your efforts, good luck and kind regards Jaap

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Interesting idea Tom. I see a lot of work in that. :-)It raises some questions for me as well. Any clarification appreciated.1. If it is not freeware, what is it? Legalware? :-)Freeware has a value, otherwise, why is there copyright law? Calling it NOT Freeware makes it no less hard to defend or any less freeware. Legally, has anything really changed in the eyes of the law?2. This appears similar to the "free for home use", but not business, education, or government (which is payware). It this the premise upon which this agreement is based?3. Listing the distribution sites grants named sites to a "license to distribute"? What other rights or limitations are assumed with that responsibility? Are these articulated anywhere?4. Finally, if your customers then understand that my uploads are NOT Freeware, will the email kudos I get be substituted with complaints, ridicule, and demands for changes, fixes, and upgrades, for free. :-)Thanks for listening. :-)

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Tom,Thanks for putting in the effort to develop this. I like it although I have a couple of comments,1) This EULA may cause users (especially the younger ones) to worry about the implications of using the file and cause them not to download the file, a similar situation to free music downloads from the internet2) The second question is around the use of freeware tools for creating what now becomes payware. Will this infringe on the usage rights of these programs?I think both of the above points are covered but it still is worth discussing.ThanksShez

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Hi Jim,Need to discuss something about my Cleveland scenery. I have an update which I want to discuss with you because your AFCAD is being overwritten with the new data from the extended 6L/24R.RegardsShez

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Tom, thankyou for this groundwork , i will be following it closely.Milton, i think the trend away from what is known as Freeware is due to some websites charging to acess and download this software and therefore makeing a dollar from soneone elses work with no renumeration to the orig author, I think you will find most Freeware becoming Select ware ( only from Authorised websites ) for distribution where violation will result in a financial penelty.The only thing i can think of for end users is the Copyright Law of the individual country concerned allowing legal owners of the original products creating a backup copy or the inclusion of a statement in the EULA allowing One copy of the files may be backed up onto a CD per licensed Orig.People tend to forget, they dont own the software, only a license to install and use it onto One system ( unless stated in the EULA ).I think this is going to be the way to go for Freeware ( sic Selectware ) as well as payware due to the actions of a minority.rgds Jeff

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I have almost the same question. If the product becomes payware what about the tools that we use and only allow freeware production?ThanksJos

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As far as I am concerned, the "only on one computer" is an optional phrase that could be left out entirely. "One license per Household" would probably be a better approach if the author is concerned about that aspect of the EULA. I will change the wording in the next revision to reflect the household statement.

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Milton, good to see you in the discussion."1. If it is not freeware, what is it? Legalware? :-)Freeware has a value, otherwise, why is there copyright law? Calling it NOT Freeware makes it no less hard to defend or anyless freeware. Legally, has anything really changed in theeyes of the law?"Intrinsically, freeware does not have a value. Let's say that you filed a suit for damages from xyz distributing your freeware. If there is no value associated with the program, then how could damages be assessed? By assiging it a value, then damages can be assessed and levied if need be."2. This appears similar to the "free for homeuse", but not business, education, or government (whichis payware). It this the premise upon which this agreementis based?"Not really. "Free for home use" would not prevent the poaching and redistribution of files that we see daily. This is a much more narrower license that specifically addresses the redistribution without authorization issue."3. Listing the distribution sites grants named sites to a"license to distribute"? What other rights orlimitations are assumed with that responsibility? Are thesearticulated anywhere?"Excellent question and the answer to which is in process. The responsibilities and limitations need to be worked and probably included in a second "distribution license" that the named sites agree to."4. Finally, if your customers then understand that myuploads are NOT Freeware, will the email kudos I get besubstituted with complaints, ridicule, and demands forchanges, fixes, and upgrades, for free."Eh, another good question. I think there will have to be some education process here and that folks will have to understand that the software they are downloading is free as long as it comes from the licensed distributors.

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>1) This EULA may cause users (especially the younger ones) to>worry about the implications of using the file and cause them>not to download the file, a similar situation to free music>downloads from the internetAs I indicated to Milton, I think there is going to have to be an education process so that everyone understands the EULA and its implications.>2) The second question is around the use of freeware tools for>creating what now becomes payware. Will this infringe on the>usage rights of these programs?I think we are going to need to discuss that with the authors of those tools. By putting a value on your work, that does not mean you are selling it if it is distributed through the approved locations. Through those channels, it remains free. Now, you could argue that a similar situation exists today where sites that charge for first class membership, compiliations, etc. etc. are already in violation of those usage rights. I have not seen any problems with the "free" requirements of the tools in those cases.

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I need to think about that for a bit... Yes, this does have the potential to get the legal begals interested.

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I have a problem with:1. The right of the author to exercize to withdraw the license at his will. I have no interest in software that once installed on my machine is subject to a cease and desist.2. Modification:I maintain the right, so long as not distributed, to modify panels, textures, etc., for my personal use. In doing so I realize the limitation of not securing support from the author once modifications are attempted. Copyright already includes protection of derivative works.Derivative works should be allowed with the permission of the author needs to be added. There also is the issue of look and feel. If I author a King Air panel, you do one, they are bound to have similarities. Does this agreement prohibit distribution by each author because of the similarity?

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Asd you know there is a cost to operating web sites. I have no problem with an annual subscription that allows a priority connection because of the extra cost to the site maintainers as long as a public free port is available. I would be concerned if a charge was made for each download as that would be definitely "selling" another persons product.If you wish to investigate licensing look at the GNU public licenses and others that have come about. Some FS apps have already been distributed under this. Other license examples are available on the Free Software Foundation. All protect the author from damages, something I did not notice in yours.

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You're partially correct Johan.You buy the physical distribution media and whatever other stuff is in the box.That does not necessarilly include the software included on that.Your contract with the manufacturer can further limit your rights to use that software to (for example) a limited set of hardware or a limited time.That contract does NOT prevent you from selling or giving away the physical media but the license which governs the use of the product on that media may limit your rights to use the software unless said media are also in your legal posession.What Dutch law DOES state is that a store/reseller cannot refuse to take back the software if the customer does not agree to the license.It also states that the license MUST be presented for signature (for which clicking a button to agree with the license will suffice) before the software is installed. In other words wording like "by installing this product you agree to the enclosed license" will only be legally binding if and only if the user is able to review the license before he continues the installation process (some software companies got burned by this when they never showed the license at this stage, only putting it on the user's harddisk as part of the installation system).Some people have argued that this makes shrinkwrap licenses invalid and a printed paper license must be included on the outside of the box but that was turned down (if not thrown out of court).

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As to the GPL, I refuse to use anything that's released under it in the creation of my own products for the simple reason that it dictates that anything created using a GPL licensed tool or library MUST itself be licensed under the GPL, something I explicitly do not want.Protecting the author from damages is mostly a glossy cover. It has no legal value whatsoever. If a user can make it clear that the author could have known damages would occurr a judge will declare the clause void.This has been shown many times and isn't likely to change (and shouldn't).But as everything this thing will not work well outside the USA. Different countries have different laws that apply under which clauses if not the entire license may well be invalid.

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>Tom, thankyou for this groundwork , i will be following it>closely.>>Milton, i think the trend away from what is known as Freeware>is due to some websites charging to acess and download this>software and therefore makeing a dollar from soneone elses>work with no renumeration to the orig author, I think you will>find most Freeware becoming Select ware ( only from Authorised>websites ) for distribution where violation will result in a>financial penelty.>>The only thing i can think of for end users is the Copyright>Law of the individual country concerned allowing legal owners>of the original products creating a backup copy or the>inclusion of a statement in the EULA allowing One copy of the>files may be backed up onto a CD per licensed Orig.>>People tend to forget, they dont own the software, only a>license to install and use it onto One system ( unless stated>in the EULA ).>>I think this is going to be the way to go for Freeware ( sic>Selectware ) as well as payware due to the actions of a>minority.>>rgds JeffThe part about ">People tend to forget, they dont own the software, only a>license to install and use it onto One system ( unless stated>in the EULA )." might be true for the US, but I read somewhere, cant recall yet where, that for example in the Netherlands one doesnt buy the license but the software, and there may be no restriction in usability of the software, thus you buy it and its yours.Like of example the XP activation. If you buy XP its yours, not the use of it.But since MS is mighty there is not much fuss about it here.Again, above is not 100% sure, I cant find the story I read about it yet.Johan[A HREF=http://jdserver.no-ip.com]Personal Server[/A]or..http://62.238.33.10

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Added some further terms and corrections.INTRODUCTORY NOTES: Please do not include the following notes in your End User Licence Agreement (EULA). See START OF EULA BELOW and edit accordingly to match your specific requirements or situation.1.) All content inclosed in 's should be filled in by you or your team.2.) Items that have "xyz/abc/etc" seperating them are choices for your selection. Remove those that do not apply.3.) Where you find "_____________" insert your name or your team's name or in the case of monetary value, the amount you deem fair and reasonable for your efforts.START OF EULA (edit all material below dashed line and include in your zip file.---------------------------------------------------------------------------END USER LICENSE AGREEMENT (EULA)File Name: Author: Copyright Date: Web Sites Uploaded To: BY DOWNLOADING AND USING THIS SOFTWARE YOU EXPLICITLY AGREE TO THE FOLLOWING TERMS OF THIS EULA. NOTICE:This package is NOT Freeware. It has a commercial value of $____ per copy. That fee is waived if you have downloaded this package from the above site who are given license to distribute this file from ____________. If you have downloaded this file from anywhere but the above mentioned site, you are required to pay the author of this program the sum of $_____ per copy. Further, any site hosting this file beyond those specified above and without an approved license to do so, is responsible for every download of this file from their site. Webmasters will be liable for $____ for every copy downloaded. Payment can be arranged by contacting . Websites hosting this file without a license to do so are also liable for all legal fees resulting from collection proceedings against them. DO NOT UPLOAD THIS FILE TO AN UNAUTHORIZED SITE.COPYRIGHT:The program you have downloaded is Copright, 2005 by ________________. All rights are reserved to ____________. You may not copy, disassemble, distribute, modify or upload to any other site, place within a compilation or charge for the program without the express written permission of the author.OWNERSHIP AND RIGHTS:Ownership of this software resides with ________. Violation of any term of this EULA requires that you remove this software from your system. You are granted a single, non-exclusive, license for use of this software on your system. TERMINATION:___________________ reserves the right to terminate this license at any time, for any reason. Upon termination, you will immediately remove this software from your system.DISCLAIMER:(A) THE USER OF THIS SOFTWARE EXPRESSLY AGREES THAT USE OF THE SOFTWARE IS AT USER'S SOLE RISK. NEITHER ________, ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT THIS PROGRAM WILL BE ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOFTWARE.(:( THIS SOFTWARE IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT. THE LAWS OF APPLY TO THIS SOFTWARE.© THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER virus, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. (D) IN NO EVENT WILL _____________, OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING __________ SOFTWARE BE LIABLE FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE. USER HEREBY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO THIS SOFTWARE.

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