ianal

IMO, In answer to your question, selling is a form of software distribution, however there are other means which fall under distribution, outside of selling or directly profiting from it.

Distrubution, in software contexts, means any form of getting software to an end user, including among other things;
allowing end-users of the software to copy from you or hosting publically/privately for downloading.

I would take [F] to mean:

Any one who creates a level, allows 3D relams to redistribute that level royalty free. You can still sell/distribute (the level) yourself, just that they can sell and distribute what you make, and not have to pay you.... ever.

And yes on face value, I think you have interpreted [G]] correctly. You are not allowed to dstribute a level unless you are authorised to distribute the binaries, which would imply, you cannot distribute fan made level without distributing the program itself, which seems strange. I'm not too sure why the program binaries would be mentioned explicitly???

Can you paste or link to entire text. I think context might important because yes reading those two paragraphs would indicate a strange non conventional 'CLA'.

Also, does this apply to shareware version? so while still strange, it's a bit moot unless you are not allowed to distribute the shareware binaries anyway (I don't know who would fall under such a restriction).

spiroyster wrote on 2021-06-01, 17:03:

Also, does this apply to shareware version? so while still strange, it's a bit moot unless you are not allowed to distribute the shareware binaries anyway (I don't know who would fall under such a restriction).

Nope, this is the Atomic Edition license. Here's the whole of it:

DUKE NUKEM 3D: Atomic Edition v1.5 (tm), including all versions, patches and upgrades (the "Program") Copyright 1996 3D Realms E […]
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DUKE NUKEM 3D: Atomic Edition v1.5 (tm),
including all versions, patches and upgrades (the "Program")
Copyright 1996 3D Realms Entertainment
a division of Apogee Software, Ltd.
P.O. Box 496419, Garland, TX 75049
("3D Realms"). All rights reserved.

BY COPYING OR USING THIS PROGRAM, YOU INDICATE YOUR AGREEMENT TO THE
FOLLOWING TERMS, WHICH ARE THE ONLY ONES BY WHICH 3D REALMS PERMITS COPYING
OR USE. THIS PROGRAM IS NOT SHAREWARE. DISTRIBUTING IT WITHOUT 3D REALMS'
PERMISSION IS ILLEGAL.

[1] OWNERSHIP. Except to the extent expressly licensed by us, we have and
reserve the exclusive copyright, trade secret and other rights to the
Program, and the right to use the Trademarks "3D Realms", the 3D Realms
"logo", "Duke Nukem", "Duke Nukem 3D" and any of the characters contained
within the program in connection with it.

[2] USE AND COPIES. You may use the Program only for your own purposes
"just like a book". This permits use by any number of people on any number
of machines to use it so long as -- just like a book -- there is NO
POSSIBILITY that more than one copy will be used at a time. You have no
right to copy this Program except for legal backups.

[3] NEW LEVELS. "New Levels" are data that modify or substitute for
program data, thus modifying or replacing one or more program levels.
Creating or distributing a New Level or a software tool that has no
substantial purpose other than to contribute to the creation of a New Level
infringes rights of 3D Realms and is prohibited by law except as permitted
by 3D Realms. 3D REALMS PERMITS NEW LEVELS ONLY THAT MEET ALL OF THE
FOLLOWING CONDITIONS:

[A] The Level must only work with a RETAIL episode of the program. It
must NOT work with the shareware version of Episode one.

[B] The level must not contain modifications to any COM, EXE, or DLL, or
to other executable file.

[C] The level must not contain any illegal material, or (without
appropriate irrevocable licenses) any trademarks, copyright protected
work, or other property of third parties.

[D] The level must prominently identify at least in every online
description and with reasonable duration on an opening screen

(1) the name and email address of the level's creators, and
(2) the words "THIS LEVEL IS NOT MADE BY OR SUPPORTED BY 3D REALMS".

[E] The level and any use of it must be offered solely for free (other
than any incidental online charges).

[F] By distributing or permitting the distribution of any New Level, all
owners of any trademark, copyright or other right, title or interest
therein (to the extent different from the program as originally
distributed by 3D Realms) grant back to 3D Realms an irrevocable royalty
free right to distribute the level.

[G] The distributor of any New Level or Level Editor must be authorized
to distribute the program itself (either in writing, or by being within a
category where no writing is needed under this license agreement).

[4] LIMITED WARRANTY AND LIMITATION OF REMEDIES

If this Program (including any related written material) contained a
physical defect, you may receive a replacement if you return it within 90
days of receiving it from 3D Realms. Aside from this, IT IS PROVIDED
"AS-IS", AND NO WARRANTIES OF ANY KIND (INCLUDING IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), EXPRESS OR IMPLIED,
ARE MADE AS TO IT OR ANY MEDIUM IT MAY BE ON. OUR ENTIRE LIABILITY AND
YOUR EXCLUSIVE REMEDY IS SUCH REPLACEMENT, AND UNDER NO CIRCUMSTANCES WILL
WE PROVIDE ANY OTHER REMEDY FOR DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL,
PUNITIVE, INCIDENTAL OR OTHER DAMAGES ARISING FROM IT, INCLUDING SUCH FROM
NEGLIGENCE, STRICT LIABILITY, OR BREACH OF WARRANTY OR CONTRACT, EVEN AFTER
NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. Some states do not allow the
exclusion or limitation of implied warranties or liability for incidental
or consequential damages, so this may not apply to buyers of the Program.
This gives you specific legal rights, and you may also have other rights
which vary from state to state.

[5] MISCELLANY

[A] With respect to every matter arising under this, you consent to the
exclusive jurisdiction and venue of the state and federal courts sitting
in Dallas, Texas and to service by certified mail, return receipt
requested, or as otherwise permitted by law.

[B] You will not modify, reverse compile, disassemble, or reverse
engineer the Program, or use or disclose any of our secret information
that it contains.

[V.10.01.96]

The shareware version license contains provisions for allowed distribution called "limited distribution rights" (the "New Levels" section is the same as above):

BY COPYING, USING OR DISTRIBUTING THE GAME, YOU INDICATE YOUR AGREEMENT TO THIS LICENSE […]
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BY COPYING, USING OR DISTRIBUTING THE GAME, YOU INDICATE YOUR
AGREEMENT TO THIS LICENSE

====== LIMITED DISTRIBUTION RIGHTS === KEY POINTS ==============
As provided in detail below:

[*] Individuals can -- and are encouraged! -- to give away copies of the Game
without charge.

[*] Online services (including BBSs, and WWW and FTP sites) that
are free (except for any subscription fees or incidental
Internet access charges), and BBSs with 250 or fewer nodes
(regardless of any charges to users) may make the Game
available for downloading.

*ALL* OTHER DISTRIBUTION, including by other online services such as America
Online, CompuServe, Prodigy, Microsoft Network, Ziff-Net, and similar online
services (except for authorized 3D Realms online support sections), and by
CD-ROM, shareware catalog, or retail rack REQUIRES:

[*] WRITTEN PERMISSION (WHICH 3D REALMS MAY WITHHOLD IN ITS DISCRETION) AND

[*] PRE-PAYMENT OF A LICENSE FEE OR OTHER MUTUALLY AGREED BENEFIT.

It is noteworthy that for individuals and web sites, the text uses words like "give away copies" and "make available for download" instead of "distribute". I take it that all the online services listed as "other" ("America Online, CompuServe, Prodigy, Microsoft Network, Ziff-Net, and similar online services") were paid subscriptions?

Full disclosure : I am not a lawyer, so this is just my opinion.

My personal opinion on that EULA (of which I have complete copy as I have a licensed copy of the game purchased from GOG) is that it is confusingly written and possibly self contradicting . The sentence "The distributor of any New Level or Level Editor must be authorized to distribute the program itself " does not make clear what "program" means to the author . A program, AFAIU, by definition, implies executable code and, in this context, could refer to a newly authored third-party level editor or the actual Duke Nukem 3D game itself (not that the EULA makes clear to which it os referring to here). A level is not, AFAIU, a program . The EULA author seems to acknowledge this earlier in the EULA when saying ""New Levels" are data that modify or substitute for program data ", but then goes on to apparently group program and program data together while calling it "a program"

The fact that it says "(either in writing, or by being within a category where no writing is needed under this license agreement)" then does not define in the EULA what such categories are, is icing on, IMHO, a very poorly baked cake .

I understand that EULA are normally written by lawyers and are meant to be understandable by lawyers, but I doubt that even a lawyer would not find this one confusing .

That said, AFAIU, not all clauses of EULAs are legally enforceable because, for example, they might try to disallow something that is explicitly and irrevocably allowed under local law (depending on jurisdiction). For example, the right to reverse engineer for interoperability/compatibility purposes in some circumstances is enshrined in law in at least some jurisdictions .

How any of this may or may not apply and, in case of an issue related to this actually going to court, whether the venue mentioned in the EULA would actually be forced upon you if, for example, your local jurisdiction does not allow enforcement of points prohibited by the EULA, is a question best left to a lawyer .

TLDR: this EULA could definitely have been more clearly written, IMHO. I have seen much better ones .

Full disclosure : I am not a lawyer, so this is just my opinion.

EDIT: Corrected glaring typo

EDIT2 : As to the possible distinction between "distribution" and sharing through online services, the EULA is unclear if there is one, IMHO . As alluded before, EULA are primarily written in "lawyer-speak" but, at the end of day, unless maybe if a given company's business model depends on trying to get as many people into court in order to suck damages money out of them (not referring to 3D Realms or any software developer/publisher I know of, but only to a theoretical company that might do that), I imagine that they would strive to make a EULA as understandable in order to minimize the chance of having to lose time and money in court . Maybe I am naive . That all being said, the EULA in question is from the 90s, when sharing/distribution of content online was still a rather niche thing, so we may want to cut it some slack .