Overview

An End User License Agreement (EULA) is a form of software license that comes with most commercial software applications. EULAs are commonly referred to as Shrink Wrap or Click-Through licenses, where the potential licensees are presented with the terms and conditions when installing the software, and must accept to continue or complete the installation.

Software is copyrightable under 17 U.S.C. § 107(a)(1), https://www.law.cornell.edu/uscode/text/17/102. Thus, like any form of software license the basis of a EULA is the grant of copyright license to the licensee. Because of the commercial nature of most software licensed under a EULA, expect the license to be non-exclusive and without sublicensing rights. The terms of a EULA are often similar to a Software License, with key differentiators being that EULAs have minimal support and maintenance guarantees, and will not provide any form of training in the use of the software.

When drafting a EULA, pay particular attention to the distinction between a sale and a license, to make sure the licensor’s copyright is not extinguished by the first sale doctrine. In short, the first sale doctrine means that once a copyrighted material—for instance a software CD—has been sold, the copyright owner’s exclusive rights extinguish with regards to that particular CD, so that the new owner may reproduce and distribute it freely. As the name suggests, first sale comes into play with the sale of a copyrighted good, but not with a license. Therefore, to avoid extinguishing one’s rights the licensor should take care the good is being licensed rather than sold. This is not as simple as calling the transaction a license rather than a sale, instead, courts look to see whether the transaction included use and transfer restrictions for the licensee. If so, it is more likely to be a license. If not, courts may call the transfer a sale. Compare Vernor v. Autodesk and UMG v. Augusto, and see the License Grant clause for more information.  

Guidance
A Guidance has not been defined yet.
1. Overview

An End User License Agreement (EULA) is a form of software license that comes with most commercial software applications. EULAs are commonly referred to as Shrink Wrap or Click-Through licenses, where the potential licensees are presented with the terms and conditions when installing the software, and must accept to continue or complete the installation.

Software is copyrightable under 17 U.S.C. § 107(a)(1), https://www.law.cornell.edu/uscode/text/17/102. Thus, like any form of software license the basis of a EULA is the grant of copyright license to the licensee. Because of the commercial nature of most software licensed under a EULA, expect the license to be non-exclusive and without sublicensing rights. The terms of a EULA are often similar to a Software License, with key differentiators being that EULAs have minimal support and maintenance guarantees, and will not provide any form of training in the use of the software.

When drafting a EULA, pay particular attention to the distinction between a sale and a license, to make sure the licensor’s copyright is not extinguished by the first sale doctrine. In short, the first sale doctrine means that once a copyrighted material—for instance a software CD—has been sold, the copyright owner’s exclusive rights extinguish with regards to that particular CD, so that the new owner may reproduce and distribute it freely. As the name suggests, first sale comes into play with the sale of a copyrighted good, but not with a license. Therefore, to avoid extinguishing one’s rights the licensor should take care the good is being licensed rather than sold. This is not as simple as calling the transaction a license rather than a sale, instead, courts look to see whether the transaction included use and transfer restrictions for the licensee. If so, it is more likely to be a license. If not, courts may call the transfer a sale. Compare Vernor v. Autodesk and UMG v. Augusto, and see the License Grant clause for more information.  

2. Discussion A Guidance has not been defined yet.