Myth of the EULA, part 2

This is a continuation of the Myth of the EULA, part 1.

Myth 2: I have rights because I paid for the software

These variations play on the idea that once money changes hands, what once was yours is now mine.  This is true with an important caveat:  you only get what you paid for.  Buying a a gallon of milk for $5 doesn't get me the whole cow.

Purchasing boxed software does not confer upon a buyer any rights in and of itself, other than to the bits of plastic and paper themselves. It doesn't matter for the purposes of the law that you were able to leave a retail establishment with a box or that money was exchanged for the mere option of future use of software. There is a countless number of such situations in commerce. The fact that you are offered as a convenience an option to make the purchase up front and evaluate the terms later is not a loophole.

At the outset, a purchase is just that: an act of commerce. A copyright holder produces copies and offers them for sale on the following terms: pay them $50 and agree to a set of conditions, and you can have this copy.  If you pay $50 and walk away with the box, you haven't perfected the distribution yet.  You've obtained some rights that Mr. Copyrightholder can't successfully sue you about--you can set the box on fire if you'd like or sell it on to someone else--but you're not totally in the clear.



The $50 is necessary but not sufficient to complete the act.  It is unequivocally insufficient to go to a bakery where the owner agrees to sell you a cake, offering to take $10 up front and the balance tomorrow, only to pay the $10 and then decide that the balance is too high.  This loops into:

I didn't know what the terms were until I opened the box! The store won't take the open box back!

There are two separate issues here, and only one of them relates to the software.  One has to do with the opportunity to review terms and the other has nothing to do with the copyright issue (retail returns).

The inability to return the open box for a refund is not a function of copyright, the software license, or the law.  It is a retailer policy designed to prevent customer fraud; that is, people from buying software, installing it, and returning it for a refund without also uninstalling the software.

Second, the terms are not actually locked away.  It is just a matter of convenience: software vendors make it possible for you to make an impulse purchase of a box. You choose when to inform yourself as to the license terms--you can do it in advance of purchase by looking online or requesting a copy if it is not easily found.  You can also do this after purchase but before opening the box.  The copy in the installer is a fail-safe, a way of ensuring that you have to see them at some point.  It is not intended to be the only way to see them.  If you didn't ask the baker what the total cost was before you walked out with the cake, that's on you.

The Doctrine of First Sale says that once the copyright owner sells me a copy, I can do whatever I want.

Copyright gives the rightsholder six exclusive rights (i.e., property interests):  the right to control copying, creation of derivative works, distribution of copies, public display, public performance, and digital transmission.

DFS is an important and longstanding limitation on copyright, which arose because copyright owners in the past had a nasty habit of trying to use their copyrights to reach beyond what they had the right to control.  The classical example of this is the ban on resale of books by asserting their right to control distribution. DFS in American jurisprudence stands for the notion that once a copy is sold, the copyright owner does not have any influence on what the buyer does with the copy.  It separates the tangible good from the licensed intangible property conveyed upon it.

You can buy a book, sell that one book to someone else, give it away, burn it, eat it, dip it in paint.  With boxed software, you can use the disc as a coaster, smash it to bits for a mosaic, or melt the whole thing down.

What First Sale does not do, however, is terminate the copyright interest.  You still have no right to reproduce, distribute copies, make derivative works, or engage in any of the other restricted uses.  You cannot make copies of the disc (except for archival purposes under certain conditions), install it onto a computer, or do anything that would actually make the software useful simply by buying it.  Buying the disc gives you the right to read its contents, nothing more.  Your $50 box isn't all that useful on its own and isn't worth $50 yet.  What you need for almost all commercial software is permission to make a permanent copy and sometimes a derivative work--in other words, to install it first.

Before you can install it, you must get permission, and that permission is not legally granted until the moment the copyright holder gives his/her consent. That does not occur with commercial software until the license is accepted.  All you have obtained, and what you have full DFS-derived rights to, is a paper box and a plastic disc.

The Softman v. Adobe cases are an interesting outlier--the exception that proves the rule.  They paint how complex a simple act of distribution can become, showing that if not properly managed, it is possible to separate the license agreement from the copy to the point where the license terms do not apply.  The final conclusion is, however, the same: you can only buy what is sold.  Getting a legal copy of software without license restrictions relies on mistake, not on the normal operation of law and commerce.

A software license is invalid because you don't need a license to "use" a copyrighted work

"Use" is indeed not one of the six major rights of copyright--a key holding of Bobbs-Merrill Co v. Straus, a landmark 1908 case. Assuming you have legally acquired a copy of a copyrighted work, you do not need a copyright owner's permission to read a book or watch a movie or listen to a song.  You likewise don't need Adobe's permission to sit down and draw something in Photoshop.

The catch is in the "legally obtained copy" part.

Without agreeing to the license, you haven't legally obtained ownership of a copy. The copyright holder controls distribution, and are free to place whatever terms on that distribution that s/he sees fit, confined only by the limits of the law. Moreover, the copyright holder controls copying, which is an essential step in the utilization of most software (though note that copying incidental to the mechanical operation of a computer, such as caching and loading portions into RAM, is non-infringing, "ephemeral" copying under most circumstances).

For a non-copyright analog, consider the purchase of a ticket to an amusement park or other venue. The ticket itself is your bit of paper to do with as you please, but when you get to the venue and you learn that you can't do x and you want to do x (be it flash photography, bringing in food, not wear a shirt, whatever), you can pass on it. The fact that you've already paid for the ticket does not excuse you from the rules and policies of the venue. The same applies here. You bought the package, yes, but that package isn't complete until you've been granted rights in the copyrighted work.

If you're not engaging in copying (i.e., installing) or participating in the act of distribution (e.g., purchasing software), then you can just sit down at a computer, launch software that's already on it, and use it without a second thought. But the owner of that copy is responsible for anything you do that results in legal liability while you're acting as his or her agent, just as you're responsible as a property owner for the conduct of guests at your house. That's why your employer may have its own set of rules and agreements separate from those of the software vendor.