A software licence that was modified to become 'perpetual' did not necessarily last forever and could be terminated, the High Court has ruled. The term 'perpetual' referred not to the fact that it was incapable of being brought to an end, but to the fact that it had an unlimited term so long as neither party chose to terminate …
As the Plain English Campaign might say...
...use fancy words at your own peril!
I always thought of perpetual as being never-ending. So there you go.
Simple words cannot be reinterpreted this way.
The Law needs...
very specific interpretation of EVERY WORD in a Contract - but every clause needs to be read in light of every other clause. Because they didn't set out new "Termination Clauses", the old ones were in effect.
So - it's nothing to do with using fancy words, it's to do with Lawyers writing a sloppy contract variation agreement. They should have specified that because Clause 11 said that this was a perpetual agreement it was not capable of being terminated by either party. (Had it only specified one party it would have been an unfair clause and therefore unenforceable).
Not only every word...
but also the punctuation: http://www.theregister.co.uk/2006/10/26/the_case_of_the_million_dollar_comma/
I've always considered
that perpetual in this context would mean "continuously renewing", i.e. an ongoing license without termination date. It's fairly common for software with ongoing support cover paid for in periodic installments, e.g. anti-virus. The license to use the software expires when you stop paying, rather than after one year, two years or ten years.
The judge got it right.
same with "life membership"
There was a case some years ago of a sports centre offering life membership. A lot of people took this out on the assumption that it really meant "life". The gym cancelled these memberships after (about) 5 years. When taken to court, they won - somehow the judge decided that 5 years was a reasonable length of time for the membership to last.
I suppose this phrase can now be consigned to the "meaningless" bin, along with: unlimited, our highest priority is, core values, massive (savings/discounts/screen-size etc.) and guaranteed.
 isn't the core the aprt of the apple you throw away as being useless?
The use of "lifetime" is an annoying one.
Most people assume, as those gym members did, that it means "for life".
What those offering it mean is "for the life of the product", ie until they decide to end its life.
" isn't the core the aprt of the apple you throw away as being useless?"
No, that's the user isn't it?!
You see what I did there...I'll get me....
 isn't the core the a part of the apple you throw away as being useless?
No. Not useless. I have a Cockatoo that loves apples, she'll happily tear them apart, for the pips in the core, then throw the rest away.
Very little apple wastage now... Shame about her call being like a scream, oh and the overall damage that she does. Kinda like a kid really.
Perpetual Motion Machine
A perpetual motion machine is one which is capable of running ad infinitum without further input (of energy). However there is nothing that says it cannot be stopped and started, just that while it's running, it doesn't stop on its own (yes, OK, it's slightly deeper into the laws of thermodynamics, but you get the concept).
In the normal concept of software licenses, a perpetual license would be one that is capable of running ad infinitum and that does not need to be renewed in order to continue running. This appears to be at odds in this agreement where there was a requirement to renew a part of the agreement at regular intervals.
Where a part of the contract sets limits on the license (e.g. renewal time), the license cannot be both perpetual and subject to the restriction.
Sigh, so now we have to re-word our contracts
So what word are we supposed to be using when we mean 'just let us run the damn software we paid for'
A 'perpetual licence' seems an appropriate phrasing, until now.
No, not really. The judge said that this word "perpetual" means "not limited by time", not "not breakable by anything or anyone, not even the end of the universe". In particular, it does not mean that you (or they) are unable to terminate the agreement. It would be a good wheeze if it did mean that: a never-ending revenue stream that the original "buyer" cannot escape from having to pay (except by going bust, of course).
By the judge's definition, "perpetual" is a very good word for "just let us run the damn software we paid for."
IANAL, so who won?
er . . .
The lawyers did. They always do.
Might be serious for contracting
The normal wording in most development contracts is that I give you a perpetual licence to the code I write for you - but I still own it. Otherwise i have to rewrite every little utility library from scratch for each client.
If this ruling means I can decide to cut off your licence for software the moment you pay me - then you aren't going to accept this deal anymore and are going to insist on owning the software in full.
Which means I am going to have to prove that the xml config file parser I wrote for your app is different from the xml config file parser I wrote for the next client.
Re: Might be serious for contracting
If you insist on such legal shenanigans, I believe the term you want is "perpetual, irrevocable". I'm certain I've seen that before in one of those stupid software licenses.
Skype + ebay
Didn't the guys who sold Skype to ebay do something similar? Granted them a perpetual license to use some underlying technology... then terminated that license shortly thereafter. Seems to me the word 'perpetual' just means 'ongoing until something else in the contract applies', which seems common sense enough for the word to be omitted altogether.
Hang on... the media?
Isn't "perpetual" the word recording companies and websites use to tie you into their service...?
In a way it's a pity they lost, because, subject to what Tom Kelsall said above, it would have forced the software supplier to support the product as long as the miller used it.
i.e. Imagine MickySoft being forced to supply security patches for IE6.....
What I don't get is...
...that everyone above seems to be in broad agreement with my first post, and yet someone silently "disliked" it. Don't hide - come out and tell us what you found so objectionable about what I wrote.
No they weren't forcing the maker to support it - they just wanted to use software they had paid for without buying a new support contract.
It's more like MS revokes your licence for WindowsXP when Vista comes out forcing you to buy the new OS.
It's common on big iron where support is part of the OS licence. When HP bought DEC they upped the support price on our VMS licences to persuade us to switch to HP-UX (so we switched to Sun)
in the world of UK copyright licensing, "perpetual" means "limited"...
while in US copyright ownership, "limited" means "perpetual".
Black is white, day is night, and the small guy is roadkill.
What about the user's data?
Can't termination also convey a reasonable support request that all of the clients data be made available to the client in a readable format?
As a ps:
There are probably sector guidelines and traceability issues related to batch processing and so forth that have to comply with some regulations somewhere and if so it seems reasonable for the client to request that client data is presented in a non-proprietary easy readable format as part of an exit strategy under existing support arrangements yes?
Or is that too obvious by far?
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