Expert: John Varghese - 7/26/2010

Question
Dear John Varghese,

I have noticed that many Freeware have a legal note stating “free for non-commercial use” I wanted to ask you about three different scenarios and whether they are in breach of this legal notice...

1) A IT Technician (sole trader) is specialised in improving computer performance, primarily by the use of free software such as cCleaner & AVG –NOT any illegal or cracked software- ... He charges a small fee for this service (not for the software but for his work, time and expertise) and with the service package he offers he also includes CD which has these freeware on, with tutorials and instructions, which he gives to the customers.

2) Same scenario as above only this time his customers want more than one CD so he offers any CD for £1/$1... So what is the small charge for? For the cost of the original CD, and the extra instructions and tutorials included.

3) The technician doesn’t include the CD as part of any package or deal but instead gives it as a ‘free gift’ to keep his customers happy (and so that they can use this free software themselves without any assistance).

I’m not expert on Software or Law so please excuse my ignorance..

Thank you for your time,
Ray.

Answer
Dear Ray,

When we are talking of software, we need to understand that the word "free" is used in the sense as it is used in the word "free"dom and not in the sense it is used in the phrase "free" lunch. What it means, in other words, is that when any software is "free" it does not mean you do not have to pay for it, but it means that you are free to use it, and to make further modifications in it, for your own use. Also, when you say you are purchasing a software, you dont purchase it in the same way you purchase a burger, you are getting licensed for it, and you are just allowed to use it in a particular manner. If you are using it in the manner you are allowed to use it, you are within your rights, but the moment you wander from the manner you are allowed, you are in violation of law. Think of it as using a highway- you can walk, or sit or rest in a highway, but the moment you are setting up a home there, you are in violation of the law!. So "free for non commercial use" means, if an individual downloads it and modifies it for his own use, or for use of his business, it is free use in a non commercial manner, but if he tries to modify it and sell it, he would be violating the license conditions, and he may have to pay damages.
Having this in mind, we can see that in none of the scenario's,except in 2 the person is violating any right, though when he sells the CD, as in scenario 2, it becomes a commercial use, and he may be held liable for the same. Hope this is sufficiently clear.

Regards

John Varghese