I too have been wondering what in the world 3(c) in the EULA means, and even as an IP attorney / developer, I've read it over and over and have been left scratching my head as to what it could possibly mean. Below are some of my observations and speculations and are not legal advice. If you are unsure about something, get it in writing from MM!
Paragraph 3(c), states that "...you may not rent, lease, or sublicense the Software." Interestingly, the ColdFusion and JRun EULAs also have a paragraph 3(c), and in those, it is only that one sentence. Even Dreamweaver has that 3(c) sentence, which is a very strong argument that that *particular* sentence is not applicable to hosting. In the Flex EULA, read with the sentences above it, that seems to mean that you can't share your copy of Flex on a rental basis to allow third parties to "create any content". That said, however, given the addition to 3(c) in the Flex EULA, I think it is clear that letting third-parties use your Flex license to create their own applications that they have developed would violate the EULA. It states that, "...you may not host, on a subscription basis or otherwise, the Software (1) to permit a third party to use the Software to CREATE any content..." (Emphasis added.) The rest of that sentence seems as if it might contemplate that ASP apps used (but not created by) by third-parties are generally acceptable, by stating what could possibly be read as an "exception" or counter-example: "...you may not host...the Software...(2) to conduct conferences or on-line meeting services for a third party." That is only ONE reading, however, and the EULA is extremely ambiguous. Could it instead mean that even if YOU created the content, you can't host it on an ASP basis, as some have speculated? 3(c) refers to "third party" and "create", but could other parts of the license agreement be construed more broadly? Generally, the legal rules of construction are as such that the specific controls the general, and, moreover, insofar as the EULA might give rise to any contractual liability, ambiguities in such a document are generally construed against the party who drafts it. I find it quite surprising and sad that MM has failed to be more clear on the matter. What's worse is that the even if someone from MM "says" that it's okay or not, that is not necessarily legally binding or enforceable (though depending on the circumstance it might be). If someone does "interpret" clause 3(c), make sure you get it in writing. The actual license agreement is what governs, and it seems as if someone were to rely on a reasonable interpretation of the EULA and MM later said the end user was mistaken, that such a material mistake as a substantial misinterpretation of the scope of the EULA could possibly be grounds for demanding a refund. If they alter the agreement in such a way as to attempt to retroactively impose restrictions that weren't apparent in the current EULA, I could see where that might expose them to other liability as well. MM would better serve its customers by choosing a less restrictive interpretation of the EULA and making it clear. Unfortunately, there is little to compare this to, in order to get a better idea of what it could possibly mean. Flex seems to be unique in a number of ways, and its ridiculously high price tag coupled with a more restrictive licensing scheme of unknown degree makes it extremely hard to gauge whether it is a wise investment. If the more restrictive view, e.g., no ASP hosting, is the right one, then MM is likely further impeding Flex's growth in what will prove to be a competitive race for dominance in RIA's. I would like to reiterate the question and invite Macromedia to respond: Are ASP services provided to, but not created by, third-parties within the scope of the Flex license agreement? -- Flexcoders Mailing List FAQ: http://groups.yahoo.com/group/flexcoders/files/flexcodersFAQ.txt Search Archives: http://www.mail-archive.com/flexcoders%40yahoogroups.com Yahoo! Groups Links <*> To visit your group on the web, go to: http://groups.yahoo.com/group/flexcoders/ <*> To unsubscribe from this group, send an email to: [EMAIL PROTECTED] <*> Your use of Yahoo! Groups is subject to: http://docs.yahoo.com/info/terms/
