Copyright vs. EULA

By River Braun, J.D.

Copyright vs. EULA

By River Braun, J.D.

Both end user licensing agreements (EULAs) and copyrights protect software creators, but there are important differences in the protections they convey. Such protections adhere at creation and protect software creators from infringement and piracy. EULAs, on the other hand, are legally-binding contracts between the end use of the software and the software creator. If you do anything in the digital realm, you have no doubt encountered these agreements, which often appear before you download a piece of software or access a website in which you grudgingly skim through and agree to before using the program.

Computer keyboard with a green button labeled "EULA: End-User License Agreement"

EULA Format Basics

Whether you purchase a piece of software digitally or in hard-copy form, you will be presented with an EULA. It may appear as a paper document in sub-10 point font (also known as a “shrink-wrap" license), or as a pop-up that you must agree to by clicking a box. If you do not agree to the terms, you cannot download the software. These types of agreements have also been referred to as “clickwrap" or, in the case of website EULAs, “browswrap," and have been the subject of debate since their inception. Websites include terms of use, terms and conditions, and privacy policies.

Regardless of whether you read every word of these licenses, you are legally obligated to abide by them. It might be time to start reading those contracts to which you're blindly agreeing. If you're the owner of software you want to protect, note the above and have fun, but understand that some clauses may be downright illegal and unenforceable.

Copyright Basics

Copyrights protect original works like software code from infringement. This means nobody else can copy it, modify it, or otherwise pass it off as their own. In addition to software creators, such protections can extend to musicians, artists, writers—essentially anyone who has reduced their creativity to a tangible form. Copyright laws are what keep pirates from copying the latest DVDs and selling them out of a backpack at Venice Beach.

EULAs are actually extensions of such protections, granting a single user or enterprise the right to install and use the software. Since these programs are so easy to copy and distribute, software companies must zealously pursue those individuals that violate their rights. Without a EULA in place, it's more difficult to sue violators for damages.

Infringing a EULA

EULAs describe the limitations of use and the responsibilities each party must undertake. For example, it may restrict the download of the software to one device. If a user downloads the software on his own device and then downloads it onto his six best friends' devices, he is in violation. But, what if the user downloads the software and the software somehow causes the device to quit working, or deletes everything on the device? If there is a not a clause limiting the software company's liability for damages, then the end user may be able to sue the company for damages.

In many cases where a company alleges breach, they will also allege copyright infringement. Depending on the circumstance, though, the law may limit a company's ability to sue for infringement if the action is merely a violation of a EULA condition. In 2011, this was made clear in MDY Indus., LLC v. Blizzard Entm't, Inc.

Reselling Software

Federal law has prohibited the resale of software since 1996. This was the year that ProCD v. Zeidenberg was decided. In fact, under ProCD, it is illegal to sell any information obtained from software you purchased. While it was argued that the “First Sale" doctrine, found in copyright law, should apply, the court disagreed, finding that a EULA trumped the law and made the sale of used software illegal. If you've accepted and downloaded the software, it is yours to keep, exclusively or for as long as the terms provide.

If you have created a piece of software, or an entire program, keep this information in mind when determining if you want to register for copyright protection or enter into a EULA. Ensure that you enter into a legally binding contract before allowing anyone else to use your software.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.