Re: Business Software Alliance

On Tue, 11 Jan 2000, Keith Taber <keith[_at_]drylaw.com> wrote:
>
> With respect to the clause imagined below, would it be possible to
> require that you keep the label or pay again? Imagine any other
> industry requiring this for a few minutes.

"Any other industry" doesn't get to market goods to consumers that go dead in the middle of operation... software is different legally in many ways. For better or worse, the differences are accepted as a commercially reasonable industry standard. One of the ways in which software is different is that it is licensed rather than sold. When you change the commercial transaction to a license, first sale rules don't apply and the licensee potentially loses a lot of control over the product. The licensor can start to require just about any and all kinds of behavior as a condition of maintaining and continuing the private contract (barring things which are otherwise illegal or void against public policy). I can require you to stand on your head on Saturday mornings at 10am in front of a digital camera in return for a license to use my software.

I think that requiring a licensee to keep proof of license for audit purposes is very reasonable. It is very common in entertainment and software development agreements with royalty payments, to have a "books and records" and "auditing" right. There has almost always historically been a requirement to prove license status to receive software telephone support (before telephone support became pay-as-you-go). And, the same result is effectively accomplished automatically by technology on the Internet, when a website makes cookies a condition of the site's use.

UCITA promises to take us deeper into the question of how far private contract will be allowed to go to alter rights that you would otherwise have in connection with an intellectual product. I personally find the recent development of "anti-defamation" clauses in license agreements (which require the licensee to not say anything negative about the product as a condition of continuing license) and "no fair use" clauses (trying to eliminate the user's rights under the Copyright Act) to be far more unreasonable and ethically troubling.

-- 
Carol Ruth Shepherd
Arborlaw Associates PLLC
Ann Arbor, Michigan USA
734 668 4646 v  734 663 9361 f
business, technology, entertainment
and new media law
<shepherd[_at_]arborlaw.com>