Do we need a licence to *use* our software?

Posted: Fri, 11 November 2005 | permalink | No comments

Note: All of this is specific to Australian law. Similar principles may apply elsewhere, but I've got no idea where, if any, they might apply. Also, I'm not a lawyer, nor do I play one on TV, and my writings here (and for that matter, everywhere else) are for entertainment purposes only. If swallowed, do not induce vomiting.

In the middle of a cogitation this morning, my thoughts turned (as they occasionally do) to the much loathed EULA for Nobody's Favourite OS. As we all know, this EULA is pretty brutal in the things you agree to allow other people to do to your machine, and the rights you agree to give up.

As I was, in general, thinking about issues of copyright law, the EULA got looked at through copyright-coloured glasses. And it was... weird.

As we all (probably) know, copyright law is about limiting the actions that can be performed with a work of creation, and giving the author of the creative work the ability to be the sole arbiter of who can perform those actions. The Australian Copyright Council has a nice information sheet on Copyright and Computer Software if you'd like to get the full story.

The set of actions which the Copyright holder has exclusive rights to is fairly well proscribed. The statement "All Rights Reserved" doesn't mean "every possible right is reserved", it means "those rights which I can control (by virtue of the legally-protected monopoly of copyright law) are reserved".

As far as I can tell, there is no right which allows the copyright holder to control the use of the creative work.

It's important to think about what "use" actually means. The Copyright Act and the above info sheet tend to apply the word "use" to include the act of making copies, as well as other dealings (protected or otherwise) in the copyright work, but that doesn't seem particularly useful for this discussion, because I can't think of another appropriate word to use to describe a non-copying action involving the work. So I'll stick with "use" for that, and go with "copying" for any duplication.

Obviously, the type of work that we're looking at determines what "using" that work means. A book is read, or perhaps burnt for warmth. A picture is stared at. A computer program is run. I can't find anything in Copyright law that covers reading, burning, or staring, but section 47B of the Copyright Act 1968 (Cth) deals with the "normal use or study" -- basically, the act of using the thing. It says that users are allowed to copy the program into RAM to run it[1]. Goody. So far, it looks like there's no way the copyright holder can stop us from running our legally acquired copies.

There are two flies in the ointment, though. The first is s47(2)(b) of the Act:

(2) Subsection (1) does not apply to the making of a reproduction of a computer program:
(b) contrary to an express direction or licence given by, or on behalf of, the owner of the copyright in the computer program to the owner or licensee of the copy from which the reproduction is made when the owner or licensee of that copy acquired it.

Aaaargh! Does this mean that the copyright holder can force a licence on us, against our will? I really don't know the answer to that. Hopefully, at the very least, the protections of contracts law[2] would apply to such licences. If licences can be treated as contracts, then they can be rejected. If the copyright holder can't restrict the running of a legally obtained copy of the program, then how can they compel the acceptance of a licence?

One idea that comes to mind is the process of installation. That is neither an incidental nor an automatic copy, and hence doesn't fall under the allowances of s47. So, without the permission of the copyright holder, making an installation from CD to your hard drive would seem like an infringemnet. On the other hand, the installation program usually runs directly from (for example) the CD, and if it wants to make copies of other copyright material owned by the same person or company as part of it's ordinary operation, then who are we to stop it?

But back to the idea of compelling acceptance. Looking at the XPToy Retail EULA for a moment, part of the agreement is that you agree to be bound by the terms by the action of installing, copying, or "otherwise using" the software. But if you don't agree to any of the EULA, I'm not sure how you can agree that you agree to be bound by the EULA by performing an action which the copyright holder cannot restrict you from doing. On the other hand, perhaps I've drunk too much of the GPL "You don't have to accept this licence, but nothing else gives you the right to copy this software" inplied-licence-acceptance kool-aid, and there is provision in law for licences to specify other positive means of signifying acceptance. I know that contracts can be accepted by written agreement between the parties, and with a suitable verbal exchange, so perhaps you can add "Installing, copying, or otherwise using" to that list. I wonder if "You agree to the acceptance of this agreement to give me your first-born child by blinking within 15 metres of me" would be valid? No, I didn't think so either. Does anyone know where the descriptions of permissible means of agreeing to a contract are defined in Australian law?

To get back on track, let's assume for a moment that we can refuse the EULA. Can we still use the software? s47(2)(b) says we can't contravene licence terms, but if we can refuse the EULA then it doesn't look like there are any licence terms. So we're back to relying on s47(1), which says copying for running the program isn't a problem. If you can avoid accepting the EULA, and don't do anything otherwise naughty with the software, I can't see how anyone can have any complaint, in Copyright law, with your actions.

Of course, the next trick is to avoid clicking-through the EULA "you accept" notice without falling foul of any other provisions, but if we've already knocked the paper-EULA on the head with contracts law or something, then I don't think that your click-through acceptance (coerced, as it were) is going to worth a hell of a lot more. I know the DMCA in the US did a lot to strengthen the power of click-wrap licences; perhaps those provisions got written into AusNSFTA.

Of course, this whole thing is based around a lot of conjecture and a lack of real, detailed knowledge of the law. Perhaps there's even some bits of the Copyright Act I've missed. I'd be interested to hear your thoughts on the matter. Do we need a licence to use software we've legitimately purchased? I'm interested in your comments. E-mail me at

1. I'm not quite sure why this is so majorly different to a person with an eidetic memory reading a book, but I guess it's better to cover the issue to stop lawyers getting richer.

2. There's all sorts of goodies in contracts law, from what I recall -- prohibitions against coercive contracts, and contracts presented as a fait accompli (AKA "take it or leave it") without any ability or intention to negotiate. Certainly sounds like a EULA to me...

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