I own a perfectly legal development environment (PowerBuilder 8 Pro, yeah, yuck it up) which I got for a great price, about 10% of the suggested retail price. I don’t plan to use it until next winter, however, I have some co-workers who would like to get their hands on a copy of PB 8 pro but don’t want to fork over the two grand required.
I am firmly against copyright violation, and theft, and they are sort of against it as well. The question I have is can I lease them the software for an 8 month period and then pull the license back to me? Or should I sell them the license with the agreement that they will sell it back to me in the end?
I plan to peruse the software license agreement sometime this weekend, but I don’t have a head for legalese and will probably misinterpret the SLA anyway.
Does anyone here have any experience in this matter?
Most SLAs will not allow this sort of thing. Normally what you describe would require a “reseller’s agreement”, not a “software license agreement”.
The key here is that you did not technically purchase the software. In all probability, you purchased a license to use the software. And you cannot lease that license. I’m sure that sounds like a strange distinction, but it is the standard arrangement in the US software industry.
Credentials and disclaimer: Yes, I write software SLAs and resellers’ agreements for a living. No, I am not a lawyer.
Now, with all that said – I haven’t seen your SLA, and neither have you. For all I know it’s got some crazy terms. But I highly doubt what you describe would be allowed for any commercial (non-freeware/non-GNU) software.
I have to disagree, at least in part. Although most software companies would like to, they cannot control the distribution of software once it has been properly licensed (i.e. sold with a permanent license and a copy such as a CD-ROM). Software falls under the first-sale doctrine, to be found in 17 USC, sec. 109. Following the definition of sec. 101 the first sale doctrine only applies to ‘copies’, to wit “material objects (…) in which a work is fixed (…)”.
This means that there are two questions left.
is leasing also covered with the first sale doctrine?
can the software company contractually forbid leasing, even if the first question is answered to the positive?
Ad 1. Truthfully, I’m not sure about this. I would defend that European law does in fact support this, but no judge has yet ruled on it. I do not know how American law sees this (any legal dopers?)
Ad 2. Again, I’m not sure. The thing however, in your case, is that you probably have never signed a contract with the software developer. My guess is there is only a shrink-wrap license. It is still dubious whether these licenses are binding. (there are positive and negative judgments in US law). The software company really would want it very much to be binding, but luckily the desires of software companies do not yet constitute law. The wording of ‘SLA’ s’ may also be very stringent, but that is completely irrelevant if the SLA/license itself is not binding.
So the OP’s actual question is not really answered with this, partly by lack of knowledge of facts, partly by my lack of knowledge of US law. I would however dare to venture that what is allowed is to sell it to someone else. This would definitely fall under the first sale doctrine. You would then have to make a another contract that allows you to buy it back. If you want to have added security you could of course sell it to them for exactly or more than the actual value, so they would be very likely to offer it back to you at the end of the desired ‘lease’ period. This is not an actual lease contract, but has the desired effect if everything goes well. If you want to make a watertight arrangement I’m afraid you should hire a lawyer.
If you want to read more about the application of the first sale doctrine to software and Internet downloading, you should check the two reports on this subject: NTIA and Copyright Office. Warning: both are from 2001, and I’m not sure whether any new developments have occured. They specifically refrain from tackling question 2.
NOT a legal opinion, but, presumably you’ve not installed nor used the software, correct? Hence the license doesn’t apply to you, and you have but a physical commodity, which you can sublet at any time. Should you lease it to someone else, they would be bound by the license terms, so they may in fact be prohibited from subleasing. Many software licenses state, though, that the license can be terminated by ceasing to use the software, i.e., removing it from the system. The people leasing the software, then, are no longer bound by the license, and are able to return your commodity to you intact.
I should probably clarify something that may or may not affect the discussion. The software would be used by both parties to develop commercial apps outside of our employment.
mok, you are correct regarding the distinction of license to use vs. ownership, but AFAIK possession of the physical media and documentation represent that license. Even though I have installed the software to try it out, I would remove it from my system while the software is out of my hands.
Based on what everyone has said so far, if I would do this, I would have to sell the product, and hope to get it back. Having said that, I do think that the other party will not remove the software from their machine after the term has expired and I will then be party to piracy. Given that it is no skin off my back, and that I have already used the software as a tax write-off for my side business, I have decided to not go through with this.
I think you have made a wise choice, FordPrefect, if your estimate of what the other party might do is correct. Even if you’re not sure what those others are going to do, it is better to try to steer clear of even a suspicion of piracy.
I have a smidgen of experience in software distribution but am not a lawyer nor do I write SLA’s.
On the original point, the general intent of selling an individual license is that only one instantiation of the product be used. If you install it on one machine, and different people sit down and use the machine at different times, that may be viewed as being within the intent of the license. Even if you move it from one machine/user to another, (de-installing it from the first machine) many would view it as meeting the intent of the license.
HOWEVER, the point above about developing a product (application) opens up new issues. Licenses for development tools contain additional terms regarding distribution of applications developed with those tools. This is particularly true if the distributed product/application contains resources that were part of the original product. Example; Microsoft Visual Basic allows users to distribute the run-time librarires with the product, but I believe (guess?) that the permission may not apply to anyone other than the original buyer of the license.
bobk2 that is another of my concerns. I think that the act of distributing the application in its compiled form with the runtime libraries does not force me to keep the license. AFAIK, PB and VB applications can be distributed under a freeware licensing scheme, which would imply that distribution of the the runtime engines does not require ownership of the development tool.
However, my (and the other party’s) intent to maintain the software in the future requires that we both have license to the development tool. I think this is important, especially coupled with my fears over potential piracy. Which is a sticky issue, because these guys are my friends and as much as I see them keeping a copy I don’t want to accuse them of such.
Given the last conversation with one of them, I get the impression that they are very concerned with placating me by following every rule I would set forth… but after they get possession? I think TTT is right, that my decision was the best, and I should stick with it.