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A common pattern in software distribution is to have an installer program that pops up and offers the user a license to the software, and prompts the user to accept it. This End User License Agreement will almost always include a term explicitly granting the user the right to install and use the software.

I've never seen a license agreement like this make that license conditional on having actually paid for the software. Sometimes they will mention that one needs to e.g. "activate" software against a server or enter a product key for the license to apply, but even in those cases it doesn't seem common to stipulate that e.g. the key must have been purchased by you.

What if the user gets their installer by downloading it for free from an unauthorized distributor, instead of by paying for a copy from someone licensed to distribute them?

If the user runs the unmodified installer and it immediately offers the user a license from the software author, and the user accepts it and complies with it, do they end up with a properly licensed installation?

If not, why not? Why would the software author's automated offer of a license not "count"? Or are terms in the license handling this situation much more common than I realize? Or has the author managed to revoke the user's license without knowing about its existence?

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  • Isn’t it a temporary evaluation licence in many cases of installers? Nov 29, 2023 at 13:30
  • Sometimes, especially if the application has its own internal way to take a key or to activate, but many installers seem to offer a full license.
    – interfect
    Nov 29, 2023 at 13:38
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    @interfect I’m curious what some examples would be, and what the T&C actually say Nov 29, 2023 at 15:56
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    The unauthorized destributor would be distributing a copy of the whole disk/installer, which would include the license. Presumably they copied it from a purchased copy without authorization. One example document is the Blizzard EULA at blizzard.com/en-us/legal/fba4d00f-c7e4-4883-b8b9-1b4500a402ea/… which says you get a license and notes that you "may" need to actually buy some games before you can physically play them.
    – interfect
    Nov 29, 2023 at 18:17
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    @interfect The Blizzard EULA is for their gaming platform, not for their games; they say "To play Games, you may need to add a Game license to an Account", clearly indicating that the games have their own licenses, so you'd need to look at the license for a specific game for the rest of the details. The Frontier EULA even more clearly states, "To Use the Game you are required to pay a fee." If you actually read the full EULA of any commercial software you will find that they actually do state you have to pay.
    – Herohtar
    Nov 30, 2023 at 4:28

2 Answers 2

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I've never seen a license agreement like this make that license conditional on having actually paid for the software.

Careful reading of license agreements shows that this isn't accurate. Commercial license agreements do not grant rights to illegally acquired software.

Microsoft Windows EULA

Applicability. This agreement applies to the Windows software that is preinstalled on your device, or acquired from a retailer and installed by you...

So versions downloaded illegally aren't covered.

Adobe General Terms

License. Subject to your compliance with the Terms and applicable law, we hereby grant you a non-exclusive, limited, revocable right for you to install...

...

11.2 Termination by Us. Unless stated in the Additional Terms, we may at any time immediately terminate or suspend your right to use and access the Services and Software, without refunds for any pre-paid fees, if in Adobe's sole discretion:

...

(B) you fail to make the timely payment of fees for the Services and Software, if any;

Autodesk License

1.1 License Grant. Subject to and conditioned on Licensee’s continuous compliance with this Agreement and payment of the applicable fees, Autodesk grants Licensee a nonexclusive, nonsublicensable, nontransferable, limited license to Install and Access the Licensed Materials

...

2.1.1 No License Granted; Unauthorized Activities. The parties acknowledge and agree that, notwithstanding anything to the contrary in this Agreement, no license is granted (whether expressly, by implication or otherwise) under this Agreement (and this Agreement expressly excludes any right) (a)... (b) to any Autodesk Materials that Licensee did not acquire lawfully or that Licensee acquired in violation of or in a manner inconsistent with this Agreement,

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    This is the correct answer. The OP likely has not closely read many EULAs. Even the ones linked to in the comments on the question mention payment or additional licenses being required.
    – Herohtar
    Nov 30, 2023 at 4:32
  • I'm even more confused now. Microsoft Windows is downloadable straight from their website, no retailing needed. Surely a good can't be considered retailed, if no account is made, no payment collected, and is given away to everyone as they please?
    – tuskiomi
    Dec 1, 2023 at 1:55
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    @tuskiomi You can download it, but you have no right to install or use the software without a license acquired from retail or with your computer purchase. This is no different from the fact that you can't install multiple copies of traditionally-distributed software from the same media without buying additional licenses.
    – user71659
    Dec 1, 2023 at 3:45
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    @tuskiomi I think you're confused by the computer manufacturer's preinstalled license key. Windows pulls it from the system firmware and uses it automatically, so it only appears there isn't any license validation. If you have a homebuilt system or a pre-built with Linux/FreeDOS (typically servers), then you have to enter a CD key manually. Enterprises can also set up license servers that are automatically discovered. In all cases, the key is automatically activated over the Internet, or else Windows goes into restricted functionality mode.
    – user71659
    Dec 1, 2023 at 7:09
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    @user71659 No, I'm not. presently, you may install windows 7, 10 and 11 without an internet connection, and without entering any key, on a hand-built system, without any modifications to the software, and with all core functionality in tact.
    – tuskiomi
    Dec 1, 2023 at 15:22
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A computer can’t enter into a contract

A EULA is a contract between the software company (not the computer) and the end user. If the software is obtained in a manner authorized by the publisher, then the publisher has extended the offer, and the end user accepts.

Pirated software does not come from the publisher or an authorized agent of the publisher. It cannot be binding on the publisher because they were never a party to the contract.

Let’s say there are three parties, A, B, and C. A and B write and sign a contract that says “B and C agree to (contract),” but C doesn’t sign it. A and B cannot enforce this contract on C, even though the contract references C, because C was never a party to the contract.

Also

Pirating software is always a crime, even if you have not accepted the EULA. By copying the installer to your computer, you have already committed a crime. Even if you could somehow argue that you got a valid license later, this does not erase the crime you already committed.

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    "Pirating software is always a crime." Is not universally true. For example, software piracy is legal in Belarus under certain conditions. Whether or not it's always ethical is a different matter.
    – bishop
    Nov 30, 2023 at 2:46
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    "Pirating software is always a crime..." Seems tautological. Keep in mind we have an international audience and laws will vary. Would you tag your answer with the jurisdiction(s) your answer covers? I'd be interested to see the law that makes mere possession of an installer illegal.
    – Schwern
    Nov 30, 2023 at 4:27
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    Software piracy isn't always a crime. Sometimes it's only a civil matter: law.stackexchange.com/questions/87442/…
    – James_pic
    Nov 30, 2023 at 10:07
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    @Parrotmaster: Doing things without authorization isn't always a crime. Nov 30, 2023 at 21:42
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    I often see printed sheet music with the legend "Copying is theft". I often feel they should relinquish their right to any remedy as a penalty for making such a false claim. Whether or not it's a crime, it's certainly not theft. Dec 1, 2023 at 18:23

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