Arrrrr, ye scurvy Flash-pirating dogs!!!

June 12, 2007 by Dave Haynes

If you’re reading this, you’re probably in the digital signage industry. And you’re probably a pirate.

You probably didn’t even know it, probably don’t even have a good “Arrrr Matey!” in you, but you’re a pirate.

The great, great majority of the industry’s software solutions providers use Adobe’s Flash player to put out slick, vector-graphic media files and cool, action-scripted data screens. All but maybe a dozen of 300-plus industry companies are knowingly, or unwittingly, breaking Adobe’s End User License Agreement for its Flash player.

The “EULA” is quite clear and specific about it, and I quote:

3.1  Web Player Prohibited Devices. You may not Use any Web Player on any non-PC device or with any embedded or device version of any operating system. For the avoidance of doubt, and by example only, you may not use a Web Player on any (a) mobile devices, set top boxes (STB), handhelds, phones, web pads, tablets and Tablet PCs that are not running Windows XP Tablet PC Edition, game consoles, TVs, DVD players, media centers (excluding Windows XP Media Center Edition and its successors), electronic billboards or other digital signage, internet appliances or other internet-connected devices, PDAs, medical devices, ATMs, telematic devices, gaming machines, home automation systems, kiosks, remote control devices, or any other consumer electronics device, (b) operator-based mobile, cable, satellite, or television systems or (c) other closed system devices.

So while most companies out there are using the Web Player — aka the browser plug-in — they are ignoring that bit about prohibited devices.

You can use Flash by purchasing the software libraries from Adobe’s reseller, NEC, but it is only selling the libraries for up to version 7 of Flash. If you are using version 9, for example, as a client or a vendor, you are flapping legally out in the breeze. Adobe is busily developing Flash Lite for the mobile market and has no plans to release the later libraries in the next year or so.

An industry contact says Adobe has a “significant piracy team” but has not, as yet, gone after anyone. And it is not clear if they ever will.

There are a few schools of thought here.

1 – Adobe hasn’t seen the point of going after the little knucklehead companies that still account for most of us. Why sue someone with minimal revenues? But with big companies like 3M and Cisco jumping into the business, there are now companies that would get Adobe lawyers all twitchy.
2 – Adobe is biding time and thinking about some sort of license fee, per player, when the market starts to mature.
3 – This just hasn’t drifted on to the Adobe radar yet.
4 – Adobe is covering itself but really isn’t fussed about the use of the players. After all, the use of Flash players in a fast growing market means more people buying Flash authoring tools.

My firm is one of those apparently freakish entities that actually bought the proper licensing, and I started sniffing around on this because we’re actually at a competitive disadvantage by adhering to the EULA. When I have asked industry friends about their own companies’ positions, I either got shrugs or “deer in the headlights” looks (because they didn’t know about that little bit in the EULA).

One colleague expressed doubts that the EULA is enforceable. Damned if I know, as this was never covered in any episodes of Night Court that I saw.

I’m not sure I would like to be sitting across the table from a major client, with him or her pushing a piece of paper across the table that has Adobe letterhead on it. That would be a bad moment.

A final note from the EULA:

YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY THAT OBTAINED THE SOFTWARE AND ON WHOSE BEHALF IT IS USED. IF YOU DO NOT AGREE, DO NOT USE THIS SOFTWARE.

  1. Dave, interesting to see this … I wrote about this topic almost two years ago:

    http://www.kioskmarketplace.com/article.php?id=14972&na=1

    … and was greeted with thunderous indifference.

  2. Ian Matheson says:

    Hey Dave,

    I am a deer in the headlights… It will be interesting to see how this legal issue will be handled when Adobe launches their new flash/flex based application development program this fall. It would be an ideal application for developing content for kiosks, content distribution programs, tablets etc…

  3. Michael says:

    >>>t would be an ideal application for developing content for kiosks, content distribution programs, tablets etc

  4. Michael says:

    >>>…It would be an ideal application for developing content for kiosks, content distribution programs, tablets etc…..

    …yes quite – and my theory is that at that time, when there are ten million players out there illegally playing Flash, Adobe will start enforcing this license. $50 per player, please – that would be half a billion dollars. Give an 80% discount for quick payment and you still end up with a neat $100m in the bank.

  5. […] all know people who have been doing that for years on their networks. There’s also that still sticky question out there about whether using anything more than Flash 7 for signage is […]

  6. […] wonder if the player was using a legit license? It looks like Flash 9 when I squint, which is a no-no. Explore posts in the same categories: […]

  7. Dave, we purchase our licenses from what was NEC – B-Square. Anything new on this subject?

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