Are loose in-box licensing agreements binding? I just purchased a vacuum cleaner and upon opening the box, there was a loose sheet of paper with a licensing agreement. The agreement said that using the product constituted acceptance of the agreement and that if I did not accept the agreement, I had to return or destroy the product. No explicit, active action was required to accept the agreement in order to use the product. My primary question is whether an agreement presented in this format is binding in the United States. I have a secondary question regarding this agreement. It placed restrictions on how the product could be used and on transferring the product to another party. Does the United States allow such restrictions on physical products such as vacuum cleaners or do purchasers automatically have the right to freely use and transfer products in accordance with the law?
I can't speak for the US but in Australia this would not be binding. You entered a contract for the vacuum cleaner the terms of conditions of which were made known to you at the time of purchase &ndash; the ticketed price, any store or website displayed terms and whatever was written on the outside of the box. Any alleged terms that were not made known when you entered the contract e.g. because they are inside the box are just that: alleged. In addition, the manufacturer would have committed an offence under Australian Consumer Law by misleading you that such terms were binding. This could lead to a fine in the multiple millions of dollars if the breach is widespread and egregious enough.
I was told that when you sign something in the UK, then it is your signature, no matter what name you are using. So if you sign a contract with my name, then it's your signature and you are bound by the contract. Things might be invalid because you signed and not me. For example, if you sign a contract selling my car in my name, then that contract is not valid. If some document needs signatures of two witnesses, and you sign with your name, then with my name, then there are no two signatures. As far as I know, signing under a false name is not in itself criminal, but might very well be supporting fraud, for example, and might therefore be illegal. The contract for the sale of my car, signed by you using my name, would very likely be part of fraud and therefore criminal.
Summary from comments. (Hat tip @jqning) Daniel Nathan Ballard writes here: [It] is not only improper it is UNLAWFUL and may result in serious repercussions... Such a misuse may constitute false advertising... (“It is no doubt true” that affixing the ‘Trade Mark Registered U.S. Patent Office” notice on goods that are not protected by a federally registered trademark creates “a prima facie case of fraud against the public… .”). ... Such use is also a form of “unclean hands” that can bar the user’s registration of the mark. ... Such a use may also bar the maintenance of an infringement case. ... And the fraudulent use of the trademark registration symbol DOES provide other marketplace participants with standing to oppose the user’s registration of the mark. http://www.avvo.com/legal-answers/use-of---symbol-but-not-federally-registered-1125746.html
Congratulations, intrepid legal enthusiast or learner! What you'll need A legal dictionary, especially if you're just getting started. If you don't own one, you can try Black's Law Dictionary A little bit of patience and time. Or maybe a lot, depending on the particular case and the particular question you're trying to answer. Maybe a normal dictionary, too. Again, if you don't own one, there's plenty online. Onelook is a dictionary search engine, so it'll search a lot of dictionaries at the same time. Okay, I've got those things, now what? Alright, there's a few things you should know. Firstly, decisions of superior courts are binding only on those inferior courts within the same hierarchy. This means that you can appeal to a higher court so long as it has appellate jurisdiction. Generally, a state (meaning a country) will have a supreme or highest court, with appellate jurisdiction over all other courts - in Australia, this is the High Court of Australia, in the United States, this is the Supreme Court of the United States, and in the United Kingdom, this is the Supreme Court of the United Kingdom. Secondly, decisions of a court are generally binding only on the matter in dispute. For example, if in a case, the matter of whether the police owe a duty of care to citizens in detecting crime, a comment on whether the police had correctly parked their vehicle is not binding - it is called obiter dictum (plural obiter dicta). What we're looking for in a judgement is the ratio decidendi (plural rationes decidendi), which is the reason for the decision. This is what is binding, and would be considered in future decisions. The problem? It's not always easy to tell the ratio from the obiter. Finally, often, the only way to know whether our interpretation of a case is right is to see whether it is applied in a future case, or overruled. Examples, examples! Sure. Let's try something easy to start with. Do product manufacturers owe a duty of care to their customers? Yes. The decision in Donoghue v Stevenson [1932] UKHL 100 found that product manufacturers - in this case, a ginger beer manufacturer - have a duty of care to ensure their products are safe for use or consumption. Lord Atkin said: The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. Okay, so the answer to this question is yes. How do I verify it? Get the source of the judgement. Without this, you're going to be relying on hearsay. The next best thing is a subsequent judgement that applies the one you're looking for, because if the judgement says what it's supposed to, it'll be mentioned in the subsequent judgement. I've found this one. Decide whether the matter in dispute is actually being decided. In our case, it is. But if I was quoting this from a judgement on whether product manufacturers have an obligation to transfer title for goods supplied on a credit agreement, it wouldn't be binding. Find the quote. If you've been given a quote. Otherwise, grab a cup of tea or coffee and get ready to read. A lot. If you can't find something that says, or means, what it's supposed to, it's probably not accurate. Make sure the judgement hasn't been overruled This is tricky, unless the judgement database you're using has a way of searching it. Most do. In any case, it's much like trying to prove a negative. In fact, it's exactly that. But always check whether the judgement has been overturned on appeal. Make sure the judgement hasn't been obsoleted by statute Again, this is tricky. It's proving a negative, again. And trying to find statute might be an answer for another time. Is that it? Pretty much, I think. These are at least the main points. There's a whole laundry list of things you shouldn't do with judgements, but they're more about reasoning than legal principles. It's a skill you can really only develop by using, and I'm constantly practising myself. Many discussions about cases are precisely about what their effect is. Yes, the decisions and orders are usually pretty clear-cut - for example, the decision is that the manufacturer has a duty of care, and the orders are for damages and costs to be paid. But what it means beyond that can be murky. Luckily for us, judges have become better at writing their judgements so that others can understand. Also, for more important cases, where the entire country, or world, is watching, others will interpret it for you - consider Obergefell v Hodges, for example. Not everyone can be trusted, but everyone, taken together, is a much more trustworthy source than just one person. In the end, there's not a mathematical formula for determining what judgements mean. There's some interpretation involved, some judgement. There's not always going to be one judgement that's enough to prove your matter. I'm struggling to end this post neatly so I'll just finish it with a cliff-
The CC-ND license seems to be what you are looking for. However, Sec. 2(a) has two conditions, one allowing copying and distribution of the unmodified original (as stated in A), but also allows the user to modify but not distribute a modified version of the work (they may "produce and reproduce, but not Share, Adapted Material"). This would mean that a reader could rewrite your paper, as long as they keep it to themselves. If this bothers you, I think you could not rely on a standard named license, instead you'd have to provide your own – such as CC-ND 4.0 without clause (2)(a)(B). Rewriting a legal document is a risky proposition, even for a legal professional, because you have to carefully think through all of the implications of any new punctuation, adjectives, and deletions. If you contemplate deleting clause (2)(a)(B), you should come up with a line of reasoning that compels you do delete it in order to accomplish your goal, and check that the deletion doesn't thwart that goal. That is why people pay money to lawyers (and also why you need to make your goal clear to that lawyer, lest the agreement be inconsistent with your goal).
Your terms and conditions must comply with the laws in: Your jurisdiction (California) Your customer's jurisdiction (each of the US states, Canadian provinces and ultimately countries and sub-jurisdictions in Europe) If they do they will generally be enforceable; if they don't then they will not be enforceable and you may be exposing yourself to civil and criminal sanctions. While not immediately relevant to you, Australian Consumer Law has such sanctions to goods sold into Australia from anywhere in the world; I am not familiar with other jurisdictions. With respect to your comment that you will not accept returns or refunds, this would expose you to potential fines in Australia of $220,000 for an individual or $1,100,000 for a corporation - under Australian Consumer Law returns and refunds are a consumer right. I strongly suspect that most of the jurisdictions you are selling into would take a similar position. A general "catch-all" like "to the extent permitted by law" may reduce the risk of being prosecuted but it would not eliminate it entirely. Again, in Australia, the provision is that you must not engage in deceptive and misleading conduct - merely suggesting that you will not give a refund even with the limitation above - may still be deemed "deceptive and misleading" if the court feels that a reasonable consumer might assume that they are not entitled to a refund. You need professional legal advice on this.
The issue you identify isn't really a copyright issue. The same issue would arise if the product contained public domain images in the advertisements that aren't present in the work itself. Essentially, the question comes down to whether there was actionable deceptive advertising. Usually, these claims arise under specialized consumer protection statutes that offer remedies and means of enforcement different from an individualized fraud lawsuit, and usually a deceptive advertising claim is easier to prove than traditional fraud lawsuit. Traditional fraud lawsuits normally require a showing of damages caused by reasonable reliance upon the misrepresentation, which is uneconomic to prove in the case of an individual small consumer purchase. Usually, deceptive advertising of consumer products is established in a lawsuit by a government official in charge of regulating deceptive advertising or a class action lawsuit, and often statutory damages are assigned to each violation rather than requiring detailed proof of economic harm for compensatory damages from some but not other images being present. Often fine print in the advertisement or in a purchase form before buying the product discloses the disconnect. Also, the mere presence of an image in an advertisement doesn't necessary imply that it is included in the product. So prove of deceptive advertising liability in these cases is often difficult even with these relaxed standards. There are many gray area and close cases, and often, businesses settle these lawsuits rather than litigating them. A more specific answer would require knowledge of which jurisdiction's laws apply, which is often a non-trivial question in Internet based advertising lawsuits.
Recall the basic principle of copyright law, as detailed in 17 USC 106: The copyright holder has the exclusive right to make copies; prepare derivative works; or distribute copies by sale, rental, lease, or lending. Other people can legally do these things only if they are given permission by the copyright holder, typically via a license. (Remember, the literal meaning of the word license is permission.) Often, the copyright holder will require a prospective licensee to accept various terms and conditions before the license will be granted. If there is &quot;no EULA&quot;, or if there is one but the purchaser has not agreed to its terms, then the purchaser has not been granted any such license, hence does not have permission to do any of the things listed above. If they do so anyway, it is illegal copyright infringement and they will be liable for damages. To use a firewall analogy, copyright law is &quot;default deny&quot;. So let's take your questions one by one: Do they own the software? US law has no concept of literally owning software. The closest thing is owning the copyright, which the purchaser certainly does not. It still belongs to the vendor that wrote the software (or whoever they may have later transferred it to). Can they legally alter the code of the program they purchased? No, that would be preparing a derivative work. The copyright holder has not granted them a license to do that. (There are some exceptions for purposes such as reverse engineering and interoperability, see 17 USC 1201(f)). Can they legally redistribute it No; again, that is the exclusive right of the copyright holder, and the purchaser has not received their permission. or transfer ownership? Maybe, if the first sale doctrine applies. Its application to software is complicated. The user has a better case for being able to sell the software if it exists as some tangible object which is transferred (physical media, pre-installed on hardware, etc). Can they legally modify the code of the program for others who have also purchased the same package? No, that would be preparing a derivative work. Can they take that software and install it on a secondary machine? No, that would be making a copy.