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We purchased a wordpress plugin with a perpetual license. The software plugin constantly phones home to check the license is used on the domain it was purchased for use on. However, if the our wordpress administration panel, where the plugin is installed, is accessed from the IP address of the site and not the domain, the license is deactivated, because the plugin phones home from the IP address and not the domain. As a result, we need to reactivate the license.

Do we not own the software?

Does the concept of "quiet enjoyment" apply here?

What about the concept of "hidden defects"? The fact that every time, for whatever reason, our site is accessed from its' IP address and not the domain, it triggers a revocation of the license. Moreover, this time it caused damage to our business by both disabling the software/plugin and as a result the website, and when it was reactivated the database was corrupted and we lost all data between the deactivation and reactivation and ever since until it was fixed, about a week.

This is the license.

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You do not own the software, but you do own a copy of a license to the software. "Quiet enjoyment" is between you and your landlord.

Under the terms of the license you will have been granted the right to use the software, and either it specifies a particular restriction about IP address vs. domain, or it doesn't. If it says "No you can't do that", then you were wrong in your assumption and you have to follow the terms of use. I doubt that is the case (especially for a perpetual license), which means that you have a right to use the software. It's not clear what the problem is since it sounds like you do still have access to the software, it's just not as convenient as you'd like it to be. You can't legally force them to modify the software to make it easier for you.

Since you know about the problem and know how to avoid it, if you do not follow the necessary procedure, you have contributed substantially to the damage that revocation causes. You might be able to recover a bit of money, depending on jurisdiction (probably theirs), and whether their acts or omissions provably contributed to the problem. Generally, software licenses have clauses that prevent the publisher from being sued because a person used the software in a reasonable but incorrect way and something went wrong, causing them monetary damage. It's also reasonably likely that you can't actually sue them in court, because of a mandatory arbitration clause. What you can do is hire an attorney who will tell you whether you have a reasonable prospect at getting money from litigating the matter.

A defect is where a product fails to do what it is supposed to do, for example if a program that sends TCP/IP packets does not send anything, that is a defect. What you describe is more like "suboptimal implementation". Perhaps revoking the license is an actual defect, you would have to ask then what the software is supposed to do in that case. An alternative is that this is a harsh security measure, similar to "wrong password twice means lock-out".

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  • Both hardware and software licenses can have a "Quiet enjoyment" clause. There is no clause regarding the how that site should be accessed IP address or domain, so we believe its an oversight by the developer of the software. The problem surfaced only when the site was accessed by the IP address and not the domain. The problem is that the "owner of the software", in this case it is a wordpress plugin that adds functionality vital to our website, turned off access to the software. – Wayne KELLY Jun 18 at 13:11
  • @WayneKELLY "There is no clause regarding the how that site should be accessed IP address or domain" - there is, however: "to check the license is used on the domain it was purchased for use on". Developers license by the domain because that generally does not change often - IP addresses can change regularly, and you might have more than one webserver serving the application, which means multiple IP addresses. I've been a software developer for 25 years now - the way this plugin is licensed is pretty standard, and has been since before I can remember. – Moo Jun 18 at 20:17
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Do we not own the software?

No, this is specifically why software is licensed and not transferred ownership.

Does the concept of "quiet enjoyment" apply here?

No, this is not a lease of real property.

What about the concept of "hidden defects"?

Does the developer acknowledge the situation and possibly resolve to fix it? Have you brought this up to their attention? You may have a case for a refund of your licensing cost if it is not what was advertised (ie uses your domain IP not your domain name).

There are ways to redirect you when your site is accessed via IP, maybe look into that as a mitigation effort. Unless your license says something about a requirement to fix defects in a timely manner, the developer, even if it is annoying or damaging, has no real obligation to fix these defects.

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  • I second Ron here - fix the real problem, the ability for admin users to use your site via the IP address. The plugin author has no responsibility to allow you to carry out unlicensed actions - so dont do unlicensed actions. You licensed the olugin for one domain, so either license it for the second one (the IP address) or stop using the second one. – Moo Jun 17 at 19:59
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    “Has no real obligation to fix defects” is not true in most parts of the world. “Merchantability” and “fitness for purpose” are either implied into contract or are stand alone guarantees under consumer protection law. There is a legal obligation to replace, repair or refund. – Dale M Jun 18 at 8:49
  • @DaleM Most commercial license agreements have something like "CompanyName and the devicemanufacturer and installer exclude all implied warranties and conditions, including those of merchantability, fitness for a particular purpose, and non-infringement.", for example, the Windows 10 Terms. – Ron Beyer Jun 18 at 12:07
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    @RonBeyer and such terms are unlawful in, for example, Australia. See ACCC v Valve Software and their multi-million dollar fine. – Dale M Jun 18 at 12:25
  • RonBeyer - A quick search for the term - quiet enjoyment software = 6million+ results with the term mentioned in books on software law. @Moo Domain and IP address are the only 2 ways to access a site, this is an oversight of the developer, is it not? It certainly is not a "unlicensed action", it is an accepted method of use. Moreover, if the TOS specifically mentioned that we could not use our website in this manner, which it does not, how can the "owner of the software" demand we use our site in their way, just because we have installed a licensed software. – Wayne KELLY Jun 18 at 12:59

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