It's a question we've asked before, but we still haven't heard any good answers. Why do software products come with licenses, when most other types of copyrighted works don't?
"The EULA Library is a great idea, but I have a more fundamental question," one reader recently wrote. "If I buy a book, or clothes dryer, or TV, or computer, it does not come with a EULA. If I use the thing illegally, I can be prosecuted. So, why the complicated licensing for software? If it's business software, there are details about concurrent users versus seats, maintenance, etc. But for software that just sits on one computer? Insofar as software makers are concerned about illegal copying and distribution of software, they could deal with that without an 'agreement.' That problem exists for music CDs and DVDs, but they don't usually have EULAs -- though they would like to, I guess. Why can't they just display a prominent notice that anyone who illegally copies and distributes the product will be prosecuted?"
A common misconception is that copyright law somehow mandates that software be "licensed, not sold." In a recent discussion on my website, a reader pointed out that is simply not the case. "Copyright laws around the world specifically allows you to make copies needed to use software you have bought, that includes installing it on your computer," the reader wrote, pointing to
Section 117 of the U.S. Copyright Act as an example. "There is NO need for any license at all for such a thing. The fact that someone writes a document calling it a license does not change this fact and does not make it illegal to do so without such a license."
The same reader argues that by definition one doesn't license product but a right to do something. "Typically a license is a permission to do something, something you are not allowed to otherwise," the reader wrote. "For example, one can get a license to reproduce and sell copies of a work protected under copyright, since that is forbidden otherwise under copyright law. But how does that apply to someone 'purchasing' or otherwise acquiring software, music, or whatever? Yes, I am aware that the ones producing software, music and such like to use 'licensing' and 'license' but that does not magically turn it into something true ... It is like claiming you suddenly need a license to sit on a chair you bought, and if you don't get that license, it is illegal to sit on the chair."
So where does the idea that software must be licensed come from? The easy answer of course is the software publishers. But the harder question is why so many think that licenses have something to do with copyright law when in fact the only reason for EULAs is to take away rights we'd otherwise have.
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