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It's my understanding that programs come with a EULA (End User License Agreement) to inform the user that they are allowed to use the software but under certain conditions.

Hypothetically speaking, if a program doesn't come with a EULA, does that mean someone in possession of it (who isn't the owner) would be breaking the law if they used it? For example if someone found a USB stick lying on the ground and it had software on it but no EULA, could they use the software?

  • What you're looking for is a copyright license, not a EULA, although the EULA is likely to contain one. With a valid license, you can do whatever he license says. If you don't have a valid license, but lawfully own the individual copy, you have certain rights of use and backup specified by copyright law. – David Thornley Nov 5 '18 at 17:59
  • @DavidThornley I'm not looking for anything, I'm simply asking what does it mean if no EULA is supplied. – swandiving Nov 9 '18 at 12:31
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Hypothetically speaking, if a program doesn't come with a EULA, does that mean someone in possession of it (who isn't the owner) would be breaking the law if they used it?

If the copy on the stick was lawfully made with permission of the copyright holder, then you can lawfully use the software. Someone who lawfully comes into possession of a lawfully made copy of the software (that was not a backup) has the right to use that software in the ordinary way.

For example if someone found a USB stick lying on the ground and it had software on it but no EULA, could they use the software?

Maybe, but it would be hard for them to know whether they could or not. It might be a backup. It might be an unlawful copy.

There was a case where a person found a CD in the trash that was clearly an original. The package had a shrink wrap agreement, but he found the CD without the package. The court held that he had every right to use the software on the CD (since it was a lawfully-made copy and not a backup) and was not bound by the EULA (since he hadn't opened the package). But he was very fortunate in being able to demonstrate these facts.

  • What does it mean that "the copy was lawfully made"? You mean that the person who made the copy had permission to do so? – swandiving Nov 9 '18 at 12:36
  • @swandiving Either had permission to do so or didn't require permission to do so. That is, if the copy was made without violating the author's rights under copyright law. Assuming the author's rights were violated by you acquiring the copy in the first place, you have the right to use it as a right of possession. It's just like any other right of possession. The right to eat a banana is a right of possession, so if you lawfully possess a banana, you have the right to eat it. But not if it's a stolen banana. – David Schwartz Nov 9 '18 at 17:00
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Under US copyright law, lack of a license is a significant problem. In general, you may not copy any literary work without the copyright holder's permission (computer programs are classified as literary works). The purpose of the EULA is to provide that permission. Suppose that the original stick owner illegally copied a program onto the stick (or hard drive), lost (sold) it, you found (bought) it, etc. and now you own the storage device. Turn to 17 USC 117 which allows a limited exception to the permission requirement:

it is not an infringement for the owner of a copy of a computer program to make or authorize...

While you might be the owner of the stick (disk), you are not thereby the owner of a copy of the program that exists on it. To be the owner of the program itself, the owner of the program (the author) must transfer ownership of the program, that is, the copyright. The author could 'sell a copy of the program', but they usually (always, as far as I know) do not sell the program, they sell a license to use the software, and they do not sell the software itself. (A subtle distinction, and the law is full of them).

An illegal copy of a program does not become legal by being laundered through lost-and-found, or by being sold. If it was illegal in the first place, it is illegal until you get a license from the copyright holder. 17 USC 109 does allow the transfer of a legal copy:

the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

This does not make it legal to transfer illegally-made copies, and this law pertains to the case where a person actually owns a copy of the software, rather than just having permission to use it. This clause does not say that a license is always transferable. Sometimes the license that a person buys will allow the license to be transferred, and sometimes it doesn't. To give a concrete example, certain software is sold via a significantly-cheaper educational license, and that license is not transferable (so students cannot get rich selling cheap copies of software to businesses).

Being in legal possession of a device which contains illegally-copied software is not against the law, what is against the law is making further copies. Typically, use implies further copying, since storage devices cannot perform the action that the program does. If you are interested in the copyings that take place when a computer program is executed, you could ask on one of the techie forum out there, but in general, a copy is transferred from the storage device to some buffer and various parts of the program are copied into memory as they are executed. This all happens behind the screen, just like installing a program: it all involves copying.

The courts could even decide (but they have not) that Congressional intent was to not include the automatic copying that comes with program execution. But §117 is already in place, and cannot reasonably be read to mean that "if you have an illegal copy of a program on a permanent storage device that you own, and your computer can run the program without copying to another storage device...".

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    I believe the second paragraph of this answer is incorrect. If you lawfully acquired a lawfully-made copy of a program, that is, nobody has already violated copyright, then you are the owner of that copy. The rights that an owner of a copy have are rights of lawful possession from physical ownership. What you're talking about, where you have a license to use a copy and do not own the copy, there must necessarily be some kind of agreement (shrinkwrap, for example) that you agreed to that took away your normal rights as owner of a copy. If no EULA, you have the rights of ownership of a copy. – David Schwartz Nov 4 '18 at 19:37
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Taking the USB stick is stealing plain and simple. However, assuming that the person turned it into the police and after it wasn’t claimed legitimately gained possession of it (because the police give it to the finder or they bought it at a lost property auction), they own the stick and everything on it.

Without a licence they can do whatever they like with it except copy it. If the program will run off the stick they can use it. If it needs to be copied first, they can’t.

  • Seems someone didn't want a correct answer, but one that told them they could use the software. – gnasher729 Jan 25 '18 at 20:10
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Possibly. For instance if the program is known to be in the public domain, it would not need an EULA on the stick. Also, in a order to use the USB itself software on the USB stick will be used and of course it would be impossible to agree with it before having used it.

OTOH, if it contains a copy of MS Office 2016, the finder would not be able to use it legally without complying with MS EULA.

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