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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?
To take an example from another arena: if I write to one of the media syndicates and get permission to use a Peanuts cartoon in some publication I'm working on, I can't then grant others access to use that cartoon, because I don't own it.
Again, I'm not saying I agree or disagree with this particular way that people use/buy/license software.
car, in the event this car is no longer used, send it to the nearest junkyard.", so
why is this true for software?
It's true for software because the buying public has come to accept it as a condition for using the software licenses that they purchase. Obviously cars aren't software, particularly since when you buy a car, you buy the car. In a way, of course, a lease is like a license to use the car and, I suppose, the lessor could put that language in the contract, but the buying public wouldn't accept it. The bottom line is the subject line.
-h-
However, at present you can legally resell music that you legitimately buy, and you definitely can make a perfect copy of an audio CD.
The only think that makes software 'special' is the license agreement saying, "You don't own this item. You have the right to use the contents of it according to our restrictions, and exactly nothing else."
That's the key--not the copyability of it.
"People who do stupid things with hazardous materials often die." -- Jim Davidson on alt.folklore.urban
"Hi, my name is Bill, and this is my 900lb gorilla. Although I really don't know what he's going to do, if you do something I don't like, I'll try to make him stomp on you. Do you want to take that chance?"
In other words, unless you are guaranteed to win the case, you're not likely to take MS to court over their license agreement. At that point, the license agreement becomes a de facto law.
"People who do stupid things with hazardous materials often die." -- Jim Davidson on alt.folklore.urban
If you sold a car you were leasing you would be tossed in jail for grand theft auto, it's sort of implicit in the idea of lease. Which is why MS and others are moving (back to) a software leasing model.
Best Slashdot Co
We could call it a new DMCA: Deny Monopolistic Corporations from being Assholes. :)
"I am a cipher, a cipher, wrapped in an enigma, smothered in secret sauce" -Jimmy James
Well, close, but not quite.
Yes, MS can keep on selling the product, just like a prostitute can. However, the sale of software concerns a tangible good, whereas prostitution is a *service*.
Since software is a tangible good, it is possible for the consumer to recover part of their initial investment by reselling ("transferring") it to someone else. This is what is prohibited by the EULAs, since the software vendors a) don't want old copies of their software out there and b) want everyone to upgrade to the latest version of everything.
Since "transfer of title" clauses in EULAs have largely been ignored by consumers and unenforced by the courts and software manufacturers, they are now trying to figure out how they can accomplish a) and b). The answer is software *services*, or the ASP model. By doing this, everyone signs a contract saying "for $xxx my 50 employees can use Office 2005 for 1 year." Since the software is never distributed on CD-ROM, the service is never placed into a form that people can resell (transfer). Since people are forced to go to the manufacturer for the software, and since the manufacturer determines what versions are available when, for how long, and at what cost, they can accomplish both a) and b).
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...
Your facts are legitimate, but your conclusion is illegitimate and downright wrong. The DMCA is a revision to copyright law that prohibits trafficking in circumvention devices. It has nothing to do with the enforcability of End User License Agreements. There is a law which is being supported at the state level called UCITA which deals with this topic.
Obfuscating the purpose of the DMCA lessens the logicical correctness of our argument against it and in so doing weakens our cause. In the future, please be more vigilant.
I DO NOT GET EMOTIONAL ABOUT ANYTHING!!!!!!!!!!!!!!!
It is true that software has a more ephemeral quality than other products of our modern civilization, but the trend is clear. The Music, Publishing, Broadcast, Cable and Movie industries are taking notes, and getting more viscous and devious in their pursuit of squeezing every possible dime of revenue from the public.
What make this all the more insidious and timely is the tracking and invasion of privacy most of these schemes require to enforce. Encryption is a bandaid that will never work without tracking and verification. If companies offered a good product at a fair price that we had complete control of how we wished to use these products, software pirates, cable tappers, CD rippers, would be seen as petty criminals instead of modern day robinhoods.
Mark my words in the wake of the WTC bombings, media companies of all types will jump on the band wagon of information tracking, where no individual may view or own any type of information without someone, somewhere, knowing what they are looking at.
It doesn't get much more Orwellian than this.
Letter To Iran
There is a fundimental flaw that software is permitted to enjoy the protection of copyright (and trade secret and patent law for that matter) and yet can still be sold thru contract law which can be used to get around those aweful fair use provisions found as part of any other kind of copyrighted good or service. No other form of good or service is restricted by all four of these methods in such a way.
If software is sold thru contract, then it should not legally be permitted the public's copyright, and vice versa. It is that all these methods can be applied and that a simple OR of all the resrictions implied that results in the greatest loss of freedom to the consumer.
I do not believe proprietary software even meets the means test for something that can or should be permitted to use copyright. Copyright implies publication. If I write a book in a language nobody can decipher, I have not published a work, nor can the public recover their rights to the work once the copyright expires. EULA contract sales and copyright are mutually exclusive.
The GPL is a wonderful example of a copyright contract and could even be used as a model for creating copyright contracts for proprietary software. But proprietary software that chooses to use contract law to impose and restrict rights should never be permitted the privilege or protections of copyright since it refuses to honor the obligations that copyright also incurs. If anything, we should lobby to have copyright protection invalidated for such goods (or perhaps a class action), for this is clearly a misuse of copyright, and removal of copyright is a perfectly valid legal basis to address such misuse.
This stikes a chord. Is it just me or are we moving into a kind of digital serfdom and an age of modern feudalism? It seems big corporations want do do away with private ownership altogether. Just like the pesants of old were tied to the land the aristocrats allowed them to use, we're held prisioner to software licenses that strip us of all rights and subject us to any corporate whim.
As long as we "know our place", pay our Microsoft tax, and don't speak against our lord and masters, they'll graciously allow us to use their software. However, anyone who dares speak out risks loosing everything.
With no real competition, large corporations can make demands that would have been unthinkable a few years ago - all we can do is accept. In the digital age, software is no longer a luxury, and it becomes increasingly difficult to function without it. Those who control that software and can dictate the terms will have more power than any government - and who do they answer to?
Even a land-owning aristocrat could take pity on his peasants now and again, but a corporation is a soulless entity who's only concern is maximizing profit.
Oh, but record labels and book publishers would LOVE to limit sales of used product. There was recently a push to prevent music stores from carrying used CDs; see this article. Garth Brooks, the country singer, was particularly outraged that his CDs could be resold without his getting a cut of the profit.
Further, book publishers have recently been getting miffed that public libraries let people read books without having to buy them, and are looking to set higher prices for public libraries, or worse yet, to ban libraries from making certain books available. (I'm having a problem finding a reference for this.)
Only as long as you didn't buy an upgrade licensed version of Office 97, or Office 2K. If you bought an upgrade, then you still only have the one license, and you can't (legally) sell or give away your previous version.
A computer once beat me at chess, but it was no match for me at kick boxing -- Emo Phillips
Even if the courts decide that you may legally transfer your license, it won't matter. For example, Microsoft will have mandatory customer registeration of their software soon. Your software will ensure that you have registered your software and won't run otherwise. The registration process will ensure that only one person can register a given copy. This means that once you register your copy of your software, Microsofy will only let you use the software. You may be able to legally transfer your license to another party, but I believe that Microsoft wouldn't be obligated to ensure the transfered license is effective; that is, they aren't required to make the software work for the purchaser of the re-sold copy.
Microsoft has proven time and time again that no matter how hard they're giving you the shaft, you're still buying the software. Thank you, sir, may I have an upgrade? It seems to me that this is needless controversy. Speak with your dollars. If you don't agree with the license, don't buy the software. It's no use complaining after you've already signed the contract. I wish companies would make license information easily availible online, so that we could find out what we're getting into before we lay down the dough.
there's more than one way to do me.
Think of it like a drivers license. Just because I have a card that is my drivers license, doesnt mean that I can just sell my card to another individual, and then that person has a drivers license. Doesnt work that way. However if I damage my card I can get it replaced for the cost of the card, not the total cost of getting a license.
A Software CD is like the card. I bought the license to use the software, and I cannot sell that license by selling the CD. I can get the CD replaced for just the cost of the CD and shipping ~$7 if it gets a scratch and doesnt work.
Cars are not like software, if it breaks down, I have purchased the right to use that car, I have purchased the car, so I cannot have it replaced when it breaks down. I may have a warranty, but that is more like insurance.
As for music and video, I am not sure if I purchased a license or the CD. If I purchased a license, then I could just get my VHS tapes replaced at the cost of the DVD, because I already have a right to the information on the DVD. Wouldnt that be great, just mail in your old VHS tapes and for ~$7 a piece you could have them all on DVD.
-the Hun
--
Bad Spellers of the World Untie!
I'm a Tasty-vore. If it's Tasty, I'll eat it.
Or am I missing something?
Your missing something. If I sell my refrigerator, I sure as hell don't need to provide the original sales receipt, packaging, and users manual. By your logic, it might be stolen, so I can't sell it. Guilty until proven innocent is what you are preaching.
Software licenses work exactly the same way. You have the right to use, but not to transfer the right to use
No they don't.
Reboot macht Frei.
...is Microsoft's real response to this. They know they're on shaky legal ground with this whole thing, and the only way to get off it and onto something solid is to not sell any licenses. And the only way to stay in business after they stop selling licenses doing that would be to sell subscriptions to use their software.
After this changeover happens (when/if it happens) they'll probably provide freely downloadable thin clients for Word, Excel, etc, and you'll have to pay whatever they determine the market will bear (because even Microsoft has to consider what the market will bear, whether they are correct or not is another topic) per month, per product you want to use.
In this situation there's no tranferrable license you need to worry about because you give away the only software you distribute to anyone for free, as it's useless to those who don't subscribe. You control the only software with any functionality and no one other than yourself will possess that software. Anyone else running a server that allows people to use Word that you haven't specifically allowed couldn't have bought it anywhere because you don't sell it, then you're well within your rights to throw them in jail for theft.
IMHO one of the great things about ebay is that it brings capitalism to the masses. Millions of people all over the world can now now make their lives more efficient (in an economic sense) by trading even the most trivial things that they own. It's a grand bazaar where everyone profits. So it's not surprising that we see EULAs in conflict with the philosophy of ebay.
EULAs are anti-capitalist. They are the product of a lobby economy - one where people who bribe politicians get to determine where resources in an economy should go.
-- SIGFPE
My sister has, for the last few years, been running a "grey import" company. Basically, some guy in the states buys up a load of microsoft products which are marked purely as OEM, not for resale, not to be sold outside of the US etc. As far as I understand it, the guy in the US is basically classified as a villian, even though he buys most of his stock from US system builders who have gone bust. However, my sister buys his stock after he has shipped it to the UK, where all these dumb clauses aren't applicable under EU law. Therefore her company is completely ligit - a publicly owned company, with a 'net presence etc., and able to sell microsoft products at a vastly reduced price to normal retail outlets.
A few years ago, microsoft were really trying to stamp out companies selling grey imports: Basically turning up at the office of some tiny company one monday morning with 15 lawyers and 70 boxes of legals. These companies closed down pretty darn quick. However, I think one of these companies took the case all the way to the EU court and won! Hence, my sister is now safe in her business.
I'm sorry I cant rember the exact details, but my sister has this great legal schpiel whenever anyone accuses her of being a crook - EU case numbers, reference subsections, grand judge rulings (I'll try and get her on slashdot later to fill in the details). All I can remeber about her little diatribe is that it usually ends with the sentence "Microsofts license is almost as buggy as its software".
She has allways been a good bussinesswoman & salesperson (she even managed to flog me one of those millenium bug kits, convincing me my computer would die otherwise, even though I know for a fact ahe actually knows nothing about computers!).
A while back she was approached by one of the major linux distributors about being their UK distributor. She took one look at the GPL and almost died laughing. I remember her words:
"How the fuck am I supposed to make money selling this? It makes the MS licence look good."
As I said, she's allways been a good bussinesswoman!
I would argue that software is not a tangible item in the same way that the recording of a musician's performance is not tangible.
Before there was recording technology, you paid for the services of a musician (either going to a concert or renting his services personally). When recording became possible, musicians made recordings of their music. This had benefits for both the musician and the people - both got what they wanted in a more convenient form.
But there was a problem. When the musician performed live, he was in control of who listened to his music and what they did with it. So they made a license agreement to make sure that people did not do something with the performance that the musician didn't want them to.
I believe that software is the same thing: it is the services of a bunch of people that can make your computer do something useful packaged conviently. It's no different from a musician's performance on CD.
In the past, it was in the licenser's best interest to get as many copies out as they could. A person who used an older version of your software was better than the person who used your competitor's software.
But things have changed. MS has been proven to be a monopoly. No competition means you care if someone's using an older version of your software. Technology is now permitting people to use works in ways that the original author never intended (eBooks and electronic versions of news articles for example). Plus, the economy has been heading down - so companies are looking at ways to prop up their profitability.
Personally, I can only see license agreements to only get even more restrictive in the near future.
Any good could be considered as a service by that line of non-reasoning. (e.g. 'I bought a car' v. 'You bought the right to go places, not a car')
No, the truth of it is that you bought a copy of a work. Rather like a book. And a hundred years ago, it was determined that copyright holders cannot, merely by virtue of their copyright, restrict in any way, people from reselling that work. It's called the First Sale doctrine.
The question really is whether or not the licenses included with software are valid in whole, or in part, and if so, at what time do they become active? It has very, very little to do with software specifically, but rather contract law in general.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Just a small question that I think backs up your position,
Do shopkeepers have to buy a special licence to sell software on to us or by the terms of M$'s own licence are all upgrade copies of all their software illegal because we have bought them from shops. Surely if we follow the line of reasoning in their licences then when the retailer buys a copy of windows from them then they are not allowed by law to sell it on to anyone else.
If this isn't true then somehow at some magical point then the package that you have acquired in the shop undergoes a transformation from Item of goods to work of art. and so is covered by copyright licensing rather than object sales laws.
If you want to follow this to a really convoluted end then It could be argued that Software pirates are not doing anything illegal as long as they never install the software on their computer
A serious case could be made that you really are purchasing the software, because you don't see the EULA untill 'after' the exchange has been made. So effectively the EULA is changing the purchase, a transaction between you and the store, to a licensing agreement after the fact.
The fact is that you never signed the EULA before making the purchase.
This is entirely different from the legacy EULAs and licenses because because the contract was agreed to and known before the money was exchanged.
Clearly MS is doing a bait and swap with their software. As far as I know that's illegal.
If someone is passing you on the right, you are an asshole for driving in the wrong lane.
While the idea of "software as a service," could certainly be used to avoid some of the problems with EULAs this is more of a side effect of the architecture than the actual purpose of the idea. Certainly, software services have beneficial revenue effects for the companies building these services -- more consistent and predictable revenue -- this is especially true for software companies in the business of developing large enterprise software applications -- SAP, Baan, Peoplesoft, etc. -- which have experienced significant problems related to the cost of implementing and upgrading their applications.
In a more immediate time frame, the licenses and registration requirements accompanying new Micros~1 products such as Office XP -- online and machine locked registration -- seem to be aimed at allowing Micros~1 to avoid the judicial process altogether. Instead, if you wish to resale your registered software you will have to sue Micros~1.
Ahh, but here is the catch. The EULA license agreement was not between you and microsoft, but rather between Microsoft and your OEM. So in actuality if you sell your copy, oops I mean the OEM's copy of windows you commit theft. Your OEM paid for each os install and agreed to be bound by the EULA. The EULA agreement was provided by Microsoft as a service for OEM's, and not individuals to provide an OS for customers. This loophole means as a consumer you are powerless under protection of various consumer laws including first sale doctrine. After all, you never really paid for it. Your OEM is the true consumer who is eligable under these specific laws. Obviously the OEM's will not protest to the government. So your OEM is legally allowed to sell their copy of windows but if they do, MS will stop selling them any more copies. You legally have no protection at all whatsoever unless you buy the more expensive non OEM version. Oh wait! You agreed under the EULA not to do this when you bought it yourself! Remember if you buy it yourself then you must agree to the EULA. Great legal loophole, hu. :-)
It seems those guys at Microsoft really put alot of effort and thought thru this to get away with everything from consumer protection laws, to first point of sale laws, to even wiping out potential competitors by having the OEM's decide for consumers which OS we use. Very clever trick. Bill Gates was a law student at Harvard before he left to found Microsoft. I am sure he learned some these tricks through there as well from his father who is a very sucessfull lawyer.
http://saveie6.com/
Over here, they went to court once or twice. However, even OEM-Windows may be sold without computers.
Here, Software is a product and once it left microsoft's hands, whoever owns it may sell it in any way he likes.
Don't have the details, though.
What if you selected NO on the EULA? I have not found a store that will let you return software if you read the GD EULA and find it to be a unacceptable. Seems like it may be a hard agreement to enforce since you can not refuse to buy the product if you do not like the agreement cause you can not read the agreement unless you buy the product and then it is too late to return.