On Wed, Feb 22, 2006 at 08:17:38PM +0000, Frank Wales wrote:
> No, it isn't; licences are *not* contracts, and never have been.
I never said that a license *is* a contract. But when you buy
a license, and thereby agree to its terms, that act creates
a contract between you and the entity that grants the license.
> Licences are so called because they grant you permission
> to do something, but that's all they can do; they cannot oblige
> you to do anything. Furthermore, a licence agreement, no matter
> how sternly worded, cannot take away rights granted to you by
> other legal authorities.
Again I never said it could. It usually grants you permission to
do something provided you observe certain conditions. Usually that
permission is void and you no longer have a license when those
conditions are violated.
> A contract *can* limit what you can do, but contracts require legal
> niceties, such as "a meeting of minds" and "consideration",
> neither of which are possible in a shrink-wrap licence agreement.
In some circumstances, just raising your hand can create a contract.
When you buy a CD, or some software, the circumstances are usually
quite clear. There is not need to spell them out. There's no need
to put a 'No trespassing' sign on your door. Thieves already know
this.
> Even if a licence agreement claims it's a contract, it isn't.
Agreed, but see above.
> For example, if your local laws already permit you to make copies of
> a CD for personal use, then an accompanying licence agreement
> that says you may not copy it is irrelevant, since you already
> have permission to copy it, and you don't need it again.
> No matter how much that annoys the CD's creators, they would
> have no legal power to restrict your copying when the
> law lets you do it anyway.
Correct, but that contributes nothing to your point that a
license is not a contract. And when your local laws do not
permit you to copy said CD, then the conditions of the
license *do* apply. Anyway, making such a copy for anything
else than personal use *is* illegal in most places.
> Also, if a licence agreement only grants you permission
> to do something under certain conditions ("you may only run
> this software if you don't reverse engineer it"), you might be
> allowed to do it anyway, since there are many laws that already
> grant you permission to do things without needing to agree to the
> licensor's terms.
There *may* be. That's no reason to assume you have no obligations
at all.
--
FA
