from
www.scl.org - society for computers and law a uk website which quoted the above case.
Jeremy Warner then picked up Lorne's strand on license strategies. A graduate of Aberdeen and Edinburgh Universities, he holds a Masters in IT and Telecommunications Law from Strathclyde and is an associate in Biggart Baillie's IP and Technology group.
Jeremy began his licensing presentation by saying he had typed "licence hunting" into an internet search engine and discovered that you have to be over 18 to hunt moose in Canada! But the basis of the discussion was use licence versus ownership, and the misunderstanding that can occur between the software industry and its customers. Lack of clarity can (and has) led to bad feeling, misuse of software, and litigation - as ever, prevention is better than cure.
Traditionally, the software licensing strategy would inevitably involve an end-user licensing agreement, where the customer is the end-user and not the purchaser. Thus, the licence is not a sale, only a licence to carry out activity that would otherwise be prohibited by copyright restrictions.
Jeremy took us back ten years when it was commonplace for software contracts to prohibit the software being moved onto a new piece of hardware. As networked computing became more commonplace, these reduced use restrictions became more painful for users. Licensing for a set number of users, rather than specific hardware, now takes precedence. We are also seeing a move towards software that cannot be used until the licence is accepted - shrink-wrap, click-wrap or web-wrap - where users are at least given the opportunity of becoming more aware of the licensing terms by accepting them up-front.
Jeremy added that another recent trend was a move towards fixed duration licensing. Traditionally, there has been a single payment for perpetual use, but we are beginning to see fixed-term licensing and Microsoft is an obvious example of this. Whether this is borne out of a desire to reinforce the license rather than sale point (perhaps in light of US product liability suits?), or simply to boost income, is a discussion that could continue into the small hours. Whatever your viewpoint, it is certainly a challenge for the industry, as demonstrated by Microsoft's recent delays and its desire to broker deals with major users.
Clearly there is an economic element to this on the part of developers,
but Jeremy brought a US case to the audience's attention from November 2001 - Softman vs Adobe. Here, Softman was bulk-buying bundled software from Adobe and selling the individual programs separately on a Web site. There was no reseller contract in place, Softman had not accepted any EULA and, despite Adobe's protestations, the court favoured Softman and accepted that they were free to distribute the software they had purchased. Taken together with product liability that would apply to a sale but not a licence, and it becomes clear why large software developers such as Microsoft might be keen to reinforce the licensing point.