by Wayne M. Krakau - Chicago Computer Guide, May 1998


Yo ho! Yo ho! The pirates’ life for me! Oops! That’s the Disney Channel take on of piracy. (So, maybe you were expecting the Discovery Channel or at least A&E?) This is actually another installment in my series on the ins and outs of software piracy. As in the previous articles in this series, any attempt to use these semi-coherent ramblings as actual legal advice would be foolhardy at best, borderline suicidal at worst.

License misinterpretation is, in my experience, the most common piracy. Often, people don’t read the license that comes with their software, and I have a hard time blaming them. Assuming that you can find the license agreement among the tons of advertising and other extraneous literature commonly bundled with software, and, that your eyesight is strong enough to read the fine print, you will often see something like the following (With apologies to Jerry Pournell who published a pair of similarly themed paragraphs in his Chaos Manner column in Byte magazine, sometime in the mid 1980s.):
Paragraph 1 - This software is such absolutely worthless junk that it cannot be reasonably assumed by anyone with an IQ higher than a grapefruit, to be useful for any actual business purpose, or, for that matter even physically safe to install on a PC. Therefore, even if this software cause flames to shoot out the back of your PC, trashes all of your data, and permanently puts you out of business, you can’t blame us.
Paragraph 2 - This software is so incredibly valuable to human civilization that if you so much as think of violating this license agreement, you agree to pay the authors (Nobel Prize, Pulitzer Prize, and Sainthood pending) enough money to design a time machine and go back in time to prevent your great-great-grandparents from meeting, thereby eliminating both your existence and your ability to pirate this software. Assuming that you run out of funds prior to the completion of said research, in lieu of the above penalties, you will surrender your firstborn child, who will then be properly trained to respect sacred agreements such as this.
The opening paragraphs are often so outrageous that people assume that the whole license agreement is completely unenforceable nonsense (definitely not a safe assumption in these litigious times). And, after you’ve made it through these paragraphs, you have to try to figure out under what conditions you can actually use the software. As I’ve said in the first installment of this series, even the attorneys that I have as clients can’t interpret many licenses. That’s why so many users give up and just skip reading the agreement.
Instead they rely on secondary sources like ads, summaries printed on packages, software company salespeople, their reseller, or the implications of the title of the product (Network Version, 5-User Pack, etc.) Any one of these sources can provide misleading information, and none of them is guaranteed to be a valid legal defense in case there is a dispute (though they might make good "mitigating circumstances" in the right circumstances).
From my point of view, as a reseller, I’ve frequently received misleading information from my distributor sales rep, my distributor dedicated product manager (for the software in question), and even from my sales rep at the software company. To solve this, I use the same technique that I use when talking to tech support representatives. I simply won’t get off the phone until I get a straight answer.
For licensing issues, I request the exact product numbers and quantity that I need for the specific client in question. If that answer doesn’t correlate to the verbal explanation of the license restrictions, I ask for another explanation. To double-check this information, I request a fax of the written form of the license agreement along with any other related policy statements. Sadly, I sometimes have to make multiple phone calls to various people within the software company to get an accurate answer. However, using this method, the worst case would be that I still didn’t understand the exact specs of the license restrictions, but at least the client would have the right combination of products to keep them out of trouble.
Next month I will continue with some of the variations on licensing that you might encounter. Meanwhile, I negotiated a truce with my parrot. He can’t get the bottle of rum open by himself, and he can’t drink very much anyway (besides, there’s nothing more pitiful than a drunken parrot who has fallen off his perch), so we agreed to share the rum.

�1998, Wayne M. Krakau