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Software Transferability? (or the lack of it)
"I seem to recall hearing stories of courts overturning these schemes; does anybody have any specifics? Cases/judicial opinions, perhaps? I've checked FindLaw, Google, and others, but haven't found anything (haven't found anything upholding them, either...). Have these clauses ever even been to court, or do the companies just depend on FUD to bludgeon the end user into compliance? Anybody with experience, I'd love to hear it. Lawyers, your opinions? (Lawyers, would you be willing to fight one out in court, if given the chance?)"
As many of you may know, the concept of "owning" software is fallacy. You own nothing. What you do posess when you purchase your new piece of commercial software, is a corporate-skewed set of limited-use rights, which are getting more and more limited each day. For those interested, the latest print issue of Wired (October, 2001) has a big "article" on this (see p.170). It attempts to illustrate thru humorous example, what software has been seriously doing for decades.
No one would own (or lease) a car if the contract said, "You must not sell this car, in the event this car is no longer used, send it to the nearest junkyard.", so why is this true for software?
The reason MS stopped those auctions is because most of them are pirated software. Or it is software licensed to OEM (you cannot separate the software bundled with the hardware) at a much lower price. If it is a shrink wrap package, I don't think you have a problem reselling.
¦ ©® ±
A German court has ruled that you can even sell your OEM versions, and Microsoft can't do anything against it (even though they tried). But in the US this is probably different, thanks to the DMCA...
I believe this was subsequently written into law for records, but this may have been turned on its ear by passage of UCITA, which gave EULAs teeth.
Yep, I know it sounds stupid (and means, for example, that online documentation has more restrictions than the exact same information printed on paper). But there are federal legal precedents for that interpretaiton. Check out, for example, MAI vs. Peak Computer, from 1993.
IANAL.
Many years ago, Nintento was suing stores selling used Nintendo games. However court decided that it was legal to sell used games. Unfortunately I don't remember more about this - maybe someone else does.
Took years before MS lost the case, but now selling OEM versions was officially declared legal despite MS telling you the opposite. (The full shrink-wrapped edition could be sold legally before, despite MS telling you the opposite).
...
But of course MS raised the bar and now nearly all preinstalled MS versions are delivered with "recovery only" CDs, which simply don't make sense on a different computer
Bye egghat.
-- "As a human being I claim the right to be widely inconsistent", John Peel
What about people who are still using computers that are considered obsolete and unsupported by software manufacturers?
There isn't any shrink-wrapped software available to them, but if they buy and use second-hand software they may be breaking the law.
It almost makes you think that there's a conspiracy designed to force people to upgrade...
but you could sell your lease. this happens very often.
similarly, you should be able to sell a software license as long as you're not still using it.
What's worse - they hassled the hell out of me when I came back to buy more product. Their online order site shut my account off and when I called in, their ordertaker had some mention on the ordeal on file and had to get manager approval to even sell the product to me.
I kind of think that it sucks, you pay $200, use it up and throw it away. Like an expensive condom. And you can't give it away to a friend to use or study with. Why do we have no rights as consumers to products we've paid for? From music CDs to software this seems to be a trend.
We should put a stop to things like this before it gets worse.
Software is like prostitution. You got the product. You sell the product. You still got the product. The consumer doesn't get money back just because he's done with the product, it's a totally different concept than just buying tangible things.
Copyright protection allows full transfer and/or resale of copyrighted material and all copies made for personal backup. Software does not get an exemption .
In Germany, this has been further extended. You can even resell your Microsoft Windows OEM license as a full blown license, provided you transfer all copyrighted associated material.
In the US, the issue becomes more complex for EULA protected software. One issue is that the company claims the consumer agrees to a contract he never has a chance to read before purchase. The contract allows the consumer to be refunded for the software, but not from the software owner, Microsoft. No. You have to get the refund from the resaler. In practice this does not happen so you are forced into accepting a license whose terms you cannot read before purchase.
There is some reason to think that EULAs of this form will ultimately be stricken as illegal, and software only protected by copyright. In fact, some people think this is already the case (read http://cr.yp.to/).
So, to sumarize, software is not like tangible things. In some views, it is just like copyright, and is completely re-sellable. Even after use.
An article about the Uniform Computer Information Transactions Act
I was able to sell the CD, but the auction winner could not use it because the CD key was tied to my credit card number and sony online account. Sony refused to transfer the account or reset it. They claim it's to stop people from auctioning ebay characters or items, but since I only played the game for a few hours and then deleted the characters this was not an issue. They really want to force people to buy the new Everquest CD. I suspect to be seeing a lot more of this in the future.
Peace, or Not?
This is a horrible analogy. First of all, the First Sale doctrine DOES APPLY to recordings of Musical works - meaning when I buy a CD (admittedly it's a copy of a piece of art) I have the right to sell that CD to anyone whom I chose.
Hence used CD shops all around the world.
What's different about software is that you agree to the EULA before you open or install the software.
The real question is whether or not that EULA is even a valid agreement, since it attempts to nullify certain rights the courts have traditionally upheld, such as First Sale doctrine.
In a similar note, I remember reading about IBM getting into Anti-Trust trouble back in the 70's because they would NEVER sell their software or hardware. You HAD to lease it from them, meaning they never transferred ownership of anything to you.
Of course, from a corporate standpoint this makes perfect sense. Economically, a firm will always maximize profits if it only leases (either rights of use or whatever) it's products and services. My question is why no one ever thought to bring this up in the Microsoft case.
IBM was forced by the courts to sell products and software if they were also going to lease them. Of course, they continue to do both, but it's interesting that this was the focus of one of the most successful anti-trust cases in our nation's history, and yet somehow the DOJ missed it in the Microsoft Case.
Anyone have any ideas on how this doctrine has held up in the courts and how it might affect the future of Software as Services???
BJ Hoffpauir
Sr. Systems Architect
Time Trend, Inc.
www.timetrend.com
PS - I read about the IBM issue in "Proudly Serving My Corporate Masters" - a great book!!!
http://www.proudlyserving.com/
Bryan "BJ" Hoffpauir
No, you are wrong. Grammatical corrections AND language translation have been held by case law in the US to not be copyrightable. Books such as Moby-Dick(written in 1850-1851), under US copyright law, have no copyright protection. They are in the PUBLIC DOMAIN. You can, by law, copy them as often as you wish and mail copies to every one in the US.
Software, when purchased in a store is exactly the same. Before you are forced to read the shrink wrap lincense but after you purchase the product, you may sell it to whoever you wish. This is assuming that the shrink wrap lincense is legally enforcible.
UCITA legislation recently passed in Maryland and Virginia. One of the purposes of UCITA was to make shrink wrap licences legally enforcable. If you live in one of those states they are. If you don't they most likely aren't. But the courts are still wrestling with this one.
The best thing to do is to take a little time and go research the issues. You can find the laws online(no your laws[other than building codes, but thats another story] are not copyrighted!). You can find the case law on-line. Do the research and come to your own conclusions.
-- If you cast your bread on the water, sometimes it comes back angel food cake.
Because the contract/license you agreed to prohibits it.
Good point about the drivers license, I should have included it. But the government (state government in the US) does still own your car. Basically, the title and drivers license are both a EULA between the government and yourself.
There is a legal procedure you can go through to get the actual legal ownership of your car. It involves some very technical forms, and is defined in international agreements. But unless you do, you don't own it.
Ever try to buy a car from a junkyard? Not just a door, or engine, but the whole vehicle? In most states it is not allowed. Let's say that I sell my 1967 Camaro to a junkyard because the transmission is shot, and I don't have the money to fix it. The body and frame are in good shape, but no one at the time wants to buy it, so I junk it. They put it out in the junkyard with the other junk cars, and a year later you see it while looking for a fender for your 1970 Corvette. You see the Camaro is in good shape, and the note on the dashboard says "Bad transmission", but everything else looks great. You ask about buying it, and are told that they can't legally sell any vehicle in the junkyard. They can only sell parts from the vehicles, because the title has been turned in to the state.
The junkyard owns the 'physical instance' of the 1967 Camaro, with its unrusted fenders, beautifully smooth leather seats, and working engine. It can sell any of these objects as used parts. But it cannot sell the 'vehicle' that is the 1967 Camaro, because the state owns it, and by law says it cannot be resold as a car.
There are two different things that are being owned here, but they are the same physical items. Only lawyers could come up with something so complicated. Now, some states do allow junkyards to sell 'vehicles', so I am not saying the above situation pertains to everyone. But it is the case in some states, from my personal experience. I was looking for parts for one of my cars once, and saw a beautiful car (I forget the model), no rust, engine was clean, seats/dash/uphosltry was perfect. Note said "Bad tranny" (which meant the car's transmission in that case, not a personal reference). Everything else being OK, I asked if I could buy it for $1000 to work on, and was told that they couldn't because the state owned the title. They could sell everything from the vehicle except the VIN plates, but not the vehicle itself. Again, this is not the case in every state, but it is in most.
Nice theory. And it works real well when there is a bilateral agreement to the contract between two known parties, but it falls over rather badly in the consumer arena.
Scenario 1: ABC Corp. would like to use Windows whatever with the entire MS productivity suite across the entire company. MS rep shows up, delivers a contract, company lawyers strike this clause, add that clause, MS negotiates, both companies come to agreement, the check is written, the software is delivered. Now, if that contract denies ABC Corp. to transfer the licenses, it probably (all things being equal) can't transfer them without getting a rider.
Scenario 2: Joe Sixpack goes and buys a copy of GruntPage from WorstBuy. Under traditional consumer law, the software publisher doesn't have a lot of recourse if Joe decides that GruntPage doesn't meet his needs. And neither does Joe. He can try to get a refund from WorstBuy, but they are only likely to give him a new copy of GruntPage, provided he shows them that his copy was materially defective, but he's not likely to get a cash refund on an opened software product. Joe can, however, sell his copy of GruntPage under First Sale doctrine, the EULA not withstanding. There is no current case law that I am aware of that allows the unilateral restriction of the transfer of copyrighted materials.
I've said it before, but I can't really believe that MS or any other consumer software producer really believes that these click-thru, skrink-wrap, so-called "contracts" will really withstand a court test. The only thing that I've ever seen the BSA and similar orginizations go after are standard copyright violations, and I really don't have a problem with that.
The usual IANAL disclaimers apply, and if anyone can point me to a link(s) to counter anything I've written, I'd love to see it.