illegal creativity?

Peter Alcibiades palcibiades-first at yahoo.co.uk
Fri Mar 20 03:17:10 EDT 2009


Not a lawyer, so this may or may not be useful.

It will depend on jurisdiction.  As well as on exactly what you did.  

If you have not licensed the database in question, you haven't entered into
the agreement, and its terms cannot be binding on you.  Suppose its part of
the OSX EULA that you agree not to make tools which will allow installation
on non-Mac machines.  This might be binding on people who buy and install
OSX and click through the agreement, but it cannot bind someone who has not
clicked through. 

If the user takes your software in such a case and does an export, are there
grounds for proceeding against him?  Not as described, it is you and not him
that has developed the export function.  He has simply used it.  If he has
entered into an agreement not to export his data?  Well, its not your
problem.  He may have entered into all kinds of crazed agreements, its up to
him how he manages them.

If you have clicked through, you have (at least in the US) really entered
into a contract not to do it, but not all contracts you enter into in this
way or other ways are enforceable in all jurisdictions.  It even varies from
country to country in the EU. For example, if you click through an agreement
in the UK which abridges your rights under consumer protection law, it will
not be binding or enforceable.  This is why if you look at mail-in guarantee
forms that come with consumer goods, you will find a declaration to the
effect that sending it in does not affect your statutory rights.  No EULA
clause that abridges your rights under consumer protection law will be
enforceable in the UK.

So will a clause as described be enforceable in the EC or the US?  The
essence of the case as described is that the buyer of the software is being
restrained by the EULA from doing something.  What he is doing is apparently
not being done with the software, so it is not a restraint on how the
software is used, but on other behavior, after the software has been bought
and installed. 

It is still controversial in both jurisdictions whether and to what extent a
supplier can restrict what use a buyer makes of his software after the
purchase.  So it is still a question whether such clauses as only permitting
installation of OSX on Apple branded machines, only installing Office under
Windows (as opposed to under Wine), not installing Vista Home on a virtual
machine, are enforceable. In the EU, restraints on how you use something
after you've bought it are said to be viewed negatively by EU competition
law. But at least in the case where the clause says, you may not use this
software to construct programs which export the data in CSV form (for
instance) the clauses are attempts to restrain use of the program you have
bought.

Even so, I'm doubtful that this would actually be enforceable.  You've got
to imagine a court ruling that while it is technically possible to use the
database package to write an exporting tool, the supplier can forbid you
from doing it by contract.  Does anyone know of any cases like this?

The case being discussed here appears to be a more extreme case than the
above however.  It appears to be restraining behavior which does not involve
use of the software in question. It seems to be saying that when you have
bought this software you have agreed not to use any other software to do
something.  It would be analogous to a clause which said that you agree that
if you install this software, you will maintain your body mass index below
25, or mow your lawn once a week in summer, or wear a black turtleneck at
all times. 

If the first sort of restraint is dubious, this seems completely
implausible. Are there any cases in which a EULA has been used to restrain
behavior which does not involve the use of the software it is packaged with?

Bottom line, if I had not licensed the software in question, I would not
worry at all. If I was not using the software in question to construct the
export function, but using some other software, even had I licensed the
software which contains the restraint, I likely would not worry.  

If I were using the software in question to construct it (that is, writing
the export function in that software, and had licensed it), I would worry a
little and maybe get advice about the state of the law on post-sale
restraints on use, and the enforceability of EULAs in my particular
jurisdiction, where that means, the particular country I lived in.  But I
would be very surprised to be told I was in any danger.

But I am not a lawyer, its just an opinion....



> I am about to complete a database tool (commercial) and "suddenly" 
> remembered license terms of one commercial database prohibiting creation 
> of tools capable to import databases created with their product into any 
> other database system.
> 
> Although this export/import was not a purpose of my program I wanted to 
> add this as an additional feature. Now I am not sure if it is legal at 
> all? Or is it? Or it depends?..
> 
> 

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