First Draft of EULA - MOD 1

[Tom Allensworth 1,532]

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.

[Tom Allensworth 1,532]

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.

[Tom Allensworth 1,532]

>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.

[Tom Allensworth 1,532]

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

[ronzie 21]

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?

[ronzie 21]

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.

[Guest]

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).

[Guest]

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.

[Johan_Dees 84]

>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

[Tom Allensworth 1,532]

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.

[Johan_Dees 84]

I thought that the issue was that one for example boiught XP, it should work without further issues, like the activation. Also the reactivation after hardware changes might be against the law, since you already paid for the product and it should work without any further hassle.You pay for it and you are the owner after that. I dont talk about copy and so. Just the use, and restrictions on making it usable.There is no difference in buying a bike or XP. But I may be wrong!Johan[A HREF=http://jdserver.no-ip.com]Personal Server[/A]or..http://62.238.33.10

[bob.bernstein 0]

Wouldn't there be less stress in the world if the issue of sites like FSPlanet were just ignored. Then there would be no need for the eula? Even if what ferdy is doing seems wrong to some, no one is forced to pay him. Then freeware could simply be free and no one would need to ponder legal details.Bob

[Guest]

Ostrich behaviour won't work Bob. Intellectual property holders who are OK with their work being used as long as it's not being charged for have gone after freeware authors whose work ended up being sold by third parties without consent in the past.Quite apart from the moral considerations something is needed to protect authors from things like that. A license which specifically (and in proper legalese) states that commercial distribution is not allowed as well as defining what channels ARE allowed for distribution can help a lot in that regard.

[bob.bernstein 0]

ur saying that freeware authors have sued each other, because some mis-use ensued by some third party? I was unaware of this. are there examples? Does it happen often. I wonder if this is such an incredibly rare event that the eula is an elephant gun for killing a flea?B

[ubersu 78]

Actually the GPL says nothing about tools... GPL libraries used may or may not result in the final work inheriting the GPL depending on how they are used. The text of the GPL and LGPL is available on the GNU site, along with a lengthy FAQ. That said, the GPL is clearly not appropriate as a licensing vehicle for FS software, unless authors are willing to make the source code for their creations available.I believe that the DMCA, as amended, is the appropriate shield for misuse of 'free' FS models. It gives copyright and control of distribution of an 'artistic work' for the life of the creator with no requirement for proof of monetary damages. It is not, realistically, enforceable in all countries - but I don't think any EULA will be either.Personally, I feel this whole 'issue' is a tempest in a teapot and caution authors that it is a whole lot easier to get the leagal profession involved than it is to get that profession un-involved. Given the rights that you are demanding (and may deserve...), you must then look at the use of MS copyright/patented technologies, airline and manufacturer copyrights, data rights, etc. 'Free' (and I use quotes because we can argue forever over just what that word means) software, when released on the internet, is equivalent to a secret shared...DJ