It's there, but the question also is, "Is it included with calculators sold in a store?" I'll have to make sure I check Target when I get off work today to see if any of the packages contain any reference; I keep forgetting.

The EULA is not a "license" in any normal sense. It is a contract.

I think the crux of the whole matter is whether that contract is binding.

If the contract is not binding, then you have full rights under copyright law to install, use, and make backup/archival copies of the software. You can also sell your copy of the software as long as you do not keep any copies of it (otherwise you would be infringing the copyright).

If the contract is binding, the question then becomes whether all terms are valid and enforceable. Many courts have held that state contract law does not preempt federal law for terms found in many "EULA" contracts, such as the right of the end user to reverse engineer the software or to sell the software (first-sale doctrine preempts a contract). I do not know whether forbidding the use of the software on an emulator not obtained from TI would be preempted by federal law, but I suspect that TI could possibly be guilty of anti-competitive practices by mandating the purchase of an additional product (a calculator or emulator sold by TI) to make use of the software (vertical tying).

I argue that the contract is not binding because you are not otherwise required to accept it in order to use the software, and using the software cannot indicate your acceptance of the contract. The terms and conditions are also not presented at the time of sale and therefore are not part of the terms and conditions of that sale. Only the implied contract of sale (where money is exchanged for a product) applies. And yes, the software is sold, not "licensed". Software is not special in this sense (despite what the trolls in the software industry want you to believe). It is no different from a book or an audio CD or a movie DVD/Bluray. Additionally, for a contract to be valid, it must contain the element of consideration, which requires that promissor and promisee both promise to give something of value to the other party. An ELUA contract may not even be valid because the software purchaser does not receive anything of value by entering into the contract (as I mentioned already, the software purchaser has the right to install, use, and make backup copies of the software under US copyright law); only the software publisher receives something of value: the purchaser promises to refrain from doing something that they have the legal right to do (this is called a "legal detriment").


Whatever the case, the worst outcome for using the TI-OS software on an "unauthorized" emulator (ie, one not obtained from TI) would be getting sued for breach of contract. TI would have to (1) prove that you actually accepted the contract, (2) prove that the term and condition is enforceable, and (3) demonstrate actual damages.

I don't see how that holds any bearing whatsoever on this discussion.

Critor: It seems clear to me then that their statement indicates the new clause is because they're coming out with a new product, not because they're specifically trying to reduce the use of emulators in and of themselves.

I can't find any mention of it on the packaging or in the getting Started Guide online (PDF). Of course, there are other documents kept within the packaging it's hard to say which document has it, if at all, without buying it. I'm pretty sure they'd include it somewhere though.

christop: You're confused about a number of things. Under our legal system, software *is* licensed and not sold.

Am I confused for having dissenting or unpopular opinions or for calling into question some common wisdom in the software industry? The common wisdom is that "software is licensed", but where does that come from? Hint: it's not from consumer rights advocates.

As a software developer, I do not assume that documentation and specifications are correct and truthful without critically evaluating them first, and that extends to the licenses themselves. This is especially true when some documentation (such as a license) apparently conflicts with other documentation (such as copyright and contract law). Many of us in this industry (and many outside the industry) believe that software is somehow special and deserves special treatment under the law (compared to, say, a book or an audio CD).

From a legal point of view, courts have ruled both ways on the matter, so it's a mixed bag. Some courts say that, since a transaction meets all criteria of a sale according to the Uniform Commercial Code, it is a sale, even if the software publisher calls it a "license" (they could call it a "potato", but that doesn't make it true). For example, see Softman v. Adobe or UMG Recordings, Inc. v. Augusto (the latter case involves music CD's but is otherwise similar to the first). Some other courts have said that, despite the transaction meeting the criteria of a sale, it is not a sale but a "license" simply because of the presence of documentation accompanied with the software whose sole purpose is to remove consumer rights without giving anything in return. I feel that these latter rulings set bad precedents.

So perhaps I am being naive and/or optimistic that courts in future will preserve our rights as consumers by making more sensible rulings on this matter (that software is sold, not licensed). You might want to live in a dystopian world in which we as consumers have very few rights over the software we purportedly buy as software becomes more deeply entrenched in our lives (it's your right to want this), but I certainly don't.

elfprince13: I want to learn what consumer rights you think you have with software. Imagine that you buy a software package from a retail store. The software does not come with a license nor any mention of a license (this is how it came from the software publisher). Can you legally install and use it on a computer? Can you legally make backup copies? Can you legally sell the software when you no longer use it? What is your reasoning behind your answers? (Yes, this is a different scenario than software that comes with a license, but it will help me understand your thoughts and opinions under a simplified, baseline scenario.)