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A simple question: if a freeware has the license "Free for non-commercial use", can I use it on my office pc?

Would that be considered "commercial use"? Commercial use sounds like integrating the application into your commercial product to me, is it correct?

fixer1234
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Marco A.
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5 Answers5

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This is an ambiguous area, but it seems most people would say no, you can not use "non-commercial" software in an office environment.

Creative Commons did a study on this in 2009. From their study (emphasis added):

The empirical findings suggest that creators and users approach the question of noncommercial use similarly and that overall, online U.S. creators and users are more alike than different in their understanding of noncommercial use. Both creators and users generally consider uses that earn users money or involve online advertising to be commercial, while uses by organizations, by individuals, or for charitable purposes are less commercial but not decidedly noncommercial. Similarly, uses by for-profit companies are typically considered more commercial. Perceptions of the many use cases studied suggest that with the exception of uses that earn users money or involve advertising – at least until specific case scenarios are presented that disrupt those generalized views of commerciality – there is more uncertainty than clarity around whether specific uses of online content are commercial or noncommercial."

ernie
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From a compliance standpoint, I've had my company audited for licensing, and we've found copies of Office Home and Student (which falls within the ambiguous non-commerical use description). Microsoft and our licensing consultants told us the definition of that is "where the software is primarily used in a revenue-generating operation or environment."

My opinion:

I take this as "if it's being used mostly for work-related tasks in a for-profit business, ya can't use it."

Regardless if it is freeware, I wouldn't do it as it would put my business in possible jeopardy, and no cost is worth that.

Distributing/incorporating a piece of software in an application you're developing as you described it (for instance bundling Adobe Reader or packaging Java with your app) falls under a different Licensing Agreement with most companies, and they have separate requirements for doing that than just using their software as an end-user.

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I think by commercial use they mean in no way can you profit from it, whether directly or indirectly, so in short, no you should not use it in your office environment unless you are a registered NPO or NFP... at least that is my take on it but I am not a lawyer...

TheXed
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    Use in a Non-Profit is still commercial use, unless there is a specific exception in the license terms. – Ecnerwal Oct 09 '13 at 01:15
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Assuming you are in the United States, you can use it anywhere you please. In the United States, anyone who legally possesses a copy of a copyrighted work may use it with or without a license. The list of things one requires permission from the copyright holder to do does not include normal use. This is why you don't need a license to read a book you purchased.

The exception would be if you specifically agreed not to use it commercially.

17 USC 106 sets out the exclusive rights of copyright holders:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Notice that ordinary use does not fall into any of these categories.

David Schwartz
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  • Of course, most software, including freeware, includes an EULA that provides that use of the software constitutes agreement to the terms (falling under contractual law overriding the USC). Would that not fall under "specific agreement not to use it commercially"? For instance, download a copy of TeamViewer free and see how emphatic they are. –  Oct 08 '13 at 22:28
  • It doesn't matter whether or not the EULA provides that use of the software constitutes agreement to the terms because you cannot be compelled to agree to the EULA and thus not required to agree that use of the software constitutes agreement to the terms. You would have to specifically agree to the EULA for anything it says to have any effect on you. (This is a layman's opinion and is not legal advice.) – David Schwartz Oct 08 '13 at 22:30
  • If the software allows you to use it without agreeing the EULA, it could be argued (and the developer may need to rethink how they do restrictions XD). But reverse engineering software to bypass the EULA and use it anyway may be a violation of adhesion contract law. But anyway, I don't want to go too far offtopic :) –  Oct 08 '13 at 22:33
  • If you accept a click-through agreement by clicking through it, then you are bound by that agreement (assuming it's not unconscionable or something bizarre like that). – David Schwartz Oct 08 '13 at 22:35
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NOT such a simple question. To even begin to answer anything except a reflexive "NO" (given "free for non-commercial use" and "on my office PC") we would need to know:

  • Specific software EULA
  • Type of organization (commercial, non-profit, government, education & level, etc.)
  • Country (as some of above can be quite different)
  • Ownership of PC (or other applicable hardware)
  • General intended use by you
  • Type of application

Many "free for non-commercial use" examples I've looked through use an arbitrary but reasonably clear definition: ok to install on your personal home PC but not on an employer-owned PC. So, yes to a family PC but installing an entertainment oriented app on an independent software developer's home office PC is perhaps slightly grey (as long as it is for entertainment) depending on the wording. Other examples stress intent more strongly: OK for a software developer to install an audio player but not an IDE on an employer PC. Still others (like MS) distinguish sale/production/deployment from educational/experimental (with development in one or the other).

Each author defines "freeware" (and its many overlapping variations such as personal-use freeware, charityware, donationware, postcardware, adware, etc.) slightly differently. The creative commons study @ernie mentioned is only one many references that illustrate the complications. Take a look at the the newsgroup alt.comp.freeware over many years (if you can wade through the trolls) for many discussions from a user perspective and an extensive list of sometimes conflicting definitions. (My favorite link is dead.) Some developer newsgroups have similar discussions about licensing.

You could contact the author for clarification if really not clear but remember that the author is providing a free product and trusting you to decide responsibly. Do you really need to ask? Does the author's FAQ/forum/site already answer the question?

BillR
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