Slashdot Mirror
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?
But what about books? Once you buy a book you're free to resell it. And don't tell me you can't make a perfect copy of it. What about music and movies? Shouldn't the whole "used CD" and "previously viewed movies" sections of media outlets be illegal?
You buy the right to use it. In that sense, the software vendor (the only owner) grants you the right to use the software. You can't transfer this right, I guess, since it was granted to you by someone else.
So what we need is an extra agreement by the software owner that they will uphold the license to someone else if you "sell" it.
I still think this whole thing sucks though. But what really pisses me off is when you buy a software and just by opening the box you can't return it. So you buy that game that's supposed to run fine on a Pentium 75MHz with 16MB of memory and when you install it in your Pentium 133MHz with 64MB of RAM the thing doesn't run. Too bad. You can't return it because the software industry thinks you're a "PIRATE". Sucks.
No but you can sell the LICENSE...that is if it isn't explicitly prohibited *in* the license...which it looks like it is. So do licenses deserve the same status as property? I mean, do I *own* the license, or am I just a party to it??
It's 10 PM. Do you know if you're un-American?
However, that is not thew way in which most people come into contact with software.
Software is, typically, sold just like books. You go to a store, you buy the book. Just like you go to the store, and you buy the software media.
The book, like the media, is then owned by you. You have signed no binding contract, you are bound to no "agreements" beyond that of copyright law.
You may not copy and redistribute the book, NOT because it says you can't in the first few pages (which it almost always does), but because copyright law says you can't.
I would hold that this entire concept of ":licensing" and especially "shrink wrap" licensing where one is expected to be bound to a license AFTER having bought the software media in question, and without signing any formal agreement is a complete fabrication of software companies to foster this attitude.
This goes on all the time. Hell, I have a book that I recently purchased from a major bookseller. It was written long ago and the copyright has long since expired, as such, it contains no copyright notice... however the publisher STILL put a notice in the first few pages to tell me that I may not copy this book, in whol eor in part.... a paraphgraph with exactly 0 legal force whatsoever.
-Steve
"I opened my eyes, and everything went dark again"
I've sold my share of Microsoft software on eBay, and had my share of auctions cancelled by the beast, so I think I know how this works.
I've considered suing Microsoft regarding all of this (seriously) but have put that on the back burner for now.
Microsoft is of the opinion that they never sell their software, they only license it. Most people who have some MS CDs sitting around got them in one of two ways, either bundled with hardware or in a retail transaction. Those two cases are handled differently.
In the case of bundled software, MS requires that it be resold with the orginal hardware. Since systems can be upgraded, they are pretty reasonable about what they will consider to be the original hardware. Since eBay can't police exactly what hardware is being sold with what software, you see people selling Microsoft Windows with broken hard drives and stuff like that. When I have to sell something and include some hardware, I usually tape a capacitor inside the envelope (no shit).
In the case of retail packages, Microsoft requires that you sell the software complete with everything that was originally in the box. So if you threw away the friendly pamplet on "ten reasons you will love the talking paperclip" then you have rendered the rest of the package unsellable in the eyes of MS.
One good way to get around all this is to use the "Buy-It-Now" feature of eBay. List your item with a reasonable BIN price and it can get snapped up quicker than MS can have it canceled.
Asta!
Just because someone can, doesn't mean they will. If that were true, the world would be a lot less crowded. It's hard for me to stomach the accusation that I WILL do something illegal just because the possibility for it exists. I CAN steal a car, I CAN 'clear' my workplace of annoyances, I CAN copy CDs. . .
I shouldn't be punished purely because I may do something I shouldn't. Let me at least have the chance to fuck up first...sheesh.
-Just because you're not paranoid doesn't mean they're not out to get you.
To me I'm paying for the right to use a single copy of that software since that is what i paid for. All the lisences I've read say you can only use the product on 1 computer since that's what you paid for. Therefor, if I have Office 6.0, remove it, and install office 97 or 2000 on my computer... I am no longer using my office 6.0, and the lisence is again valid for use on a single computer. I can therefor "transfer" my lisence to a friend for a fee, and they are legally allowed to use that lisence since it would again be used only on ONE system (just not mine anymore). This is how I've always understood it.
The way I see it, the current EULA's assume you are a thief. In this light, it's wrong to sell the software and keep a backup. EULA's assume that everyone will do this. This may be closer to the truth, but to assume all your customers are thieves is crap.
There should be nothing wrong with selling your copy of Word if you plan on buying a new copy or stop using Word.
However, to keep sales up, Microsoft and others must write it into the contract that everyone must pay for the wedding whether they are divorced or not.
MHO.
In many states, the commercial code says that if a product is to be licensed or leased, (like a car) the full disclosure of the lease or license agreement must be available before the exchange of tender. If the agreement is not available, and a transaction takes place, then it is not a lease or license, but an outright sale. Since the EULA is only available to you after you purchase and open the product, would this not make it an outright sale? IANAL, however if it is an outright sale, shouldn't I be able to do as I please with MY product?
In the wild there are no dumb lions tigers or bears. Only humanity subsidizes the continued existence of the stupid.
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.
Just because the shrink wrap packaging has been removed doesn't mean that it's pirated. I tried to sell an old personal copy of Office 97 on Ebay, and Microsoft had the auction stopped. And my copy of Office was not a pirated copy - I bought it directly from a store. There is an appeals process where you can get Microsoft to allow the auction to be reinstated. Unfortunately Microsoft wanted me to show them the original receipt (which I don't have anymore). They also demand that when you sell Microsofot software, you must include *all* the original packaging including the box. Basically they stop all non-shrinkwrapped auctions of Microsoft software, and make the seller prove it's legit. Bastard jerks. They deserve all the piracy they get after this.
OK, last week I went down to the DMV and bought a license to drive. Now I have the "right" to drive on the roads. This week I decide I don't want to drive any more so I sell the license to Joe Blow down the street.
Does Joe Blow now have the "right" to drive?
Software licenses work exactly the same way. You have the right to use, but not to transfer the right to use.
I was looking for a new free popmail service and came across Juno. I, living in Canada, had to enter the address of some hotel in Atlanta, Georgia in order to download the software due to some new encryption export laws or something. Anyway, I decided to actually read the license agreement this time and this is some of what I found in it (I especially like how it is essentially a violation to not have your computer on and connected to the net all of the time):
1.2. Please refer to your initial signup communications for specific information with respect to your service level. Juno may discontinue or alter any service level or aspect of the Service at any time, without notice, without liability and in Juno's sole discretion.
2. Your Obligations
2.4. You expressly permit and authorize Juno (and such third parties as may be authorized by Juno, subject to the Privacy Statement) to furnish you, electronically when you use the Service or by any other means selected by Juno, information prepared by Juno or by (or on behalf of) other entities, including advertising information and solicitations. You acknowledge that any such information, advertisements and solicitations are an inseparable part of the Service, and you understand and agree that the furnishing of such information, advertisements and solicitations to you cannot be terminated unless the Service is also terminated. Some third parties furnishing you with advertisements and solicitations through the Service may permit you to "opt out" of receiving such communications from them, in which case you can do so by following the instructions they provide. However, Juno is not responsible for any such party's failure to comply with its own "opt out" policies, nor does Juno endorse the views or content of any third party advertisements or solicitations. All such advertisements and solicitations will be understood to be "requested" by you through the act of using the Service, and each time you use your account reaffirms such request. Juno's policies relating to privacy and the collection and use of subscriber information are set forth in the Privacy Statement, which forms an integral part of this Agreement.
2.5. You expressly permit and authorize Juno to (i) download to your computer one or more pieces of software (the "Computational Software") designed to perform computations, which may be unrelated to the operation of the Service, on behalf of Juno (or on behalf of such third parties as may be authorized by Juno, subject to the Privacy Statement), (ii) run the Computational Software on your computer to perform and store the results of such computations, and (iii) upload such results to Juno's central computers during a subsequent connection, whether initiated by you in the course of using the Service or by the Computational Software as further described below. In connection with downloading and running the Computational Software, Juno may require you to leave your computer turned on at all times, and may replace the "screen saver" software that runs on your computer while the computer is turned on but you are not using it. The screen saver software installed by Juno, which may display advertisements or other images chosen by Juno, is an integral part of the Computational Software and you agree not to take any action to disable or interfere with the operation of either the screen saver software or any other component of the Computational Software. Juno may set different requirements for different subscribers with respect to the Computational Software (including without limitation whether use of the Computational Software is required and the volume of computations required to be performed) depending on service level or other factors we determine. You agree that, as between you and Juno, you shall be responsible for any costs or expenses resulting from the continuous operation of your computer, including without limitation any associated charges for electricity, and that you shall have sole responsibility for any maintenance or technical issues that might result from such continuous operation. You agree that, as between you and Juno, Juno shall have sole rights to the results of any computations performed by the Computational Software, including without limitation any revenues or intellectual property generated directly or indirectly as a result of such computations, without further compensation to you. If your usage of the Service is infrequent, Juno's ability to obtain the results of completed computations may be impaired. Consequently, you expressly permit and authorize Juno to initiate a telephone connection from your computer to Juno's central computers using a dial-in telephone number you have previously selected for accessing the Service; Juno agrees that it shall exercise such right only to the extent necessary, as determined in Juno's sole discretion, to upload the results of completed computations to Juno in a timely fashion; and you agree that, as between you and Juno, you shall be responsible for any costs and expenses (including without limitation any applicable telephone charges) resulting from the foregoing. Any software, data, or other materials downloaded to your computer in connection with the activities described in this Section 2.5 will not be used to collect personal Identifier Information (as defined in the Privacy Statement) from your computer and will comply with Juno's privacy policies, as reflected in the Privacy Statement. You agree that you will not attempt to reverse engineer any such software, data, or other materials or transfer or disclose any such software, data, or other materials, or the results of any such computations, to any third party. You acknowledge that your compliance with the requirements of this Section 2.5 may be considered by Juno to be an inseparable part of the Service, and that any interference with the operation of the Computational Software (including, but not limited to, any failure to leave your computer turned on to whatever extent Juno requires of subscribers at your service level) may result in termination or limitation of your use of the Service. You acknowledge that Section 6 of this Agreement shall expressly apply to the activities described in this Section 2.5.
slashdot shenanigans
I certainly don't accept it. I ignore it.
One of my favorite places to buy software
has been at used PC shops. They often had
quite recent copies of used software, in-the-box,
and with all the docs.
I don't see MS running around trying to close
these little shops down.
While I find MS' concept of enforced single licenses loathsome given my all to often need to use their stuff on multiple machines, I can't really find an issue with this (the new XP thing is what I'm talking about).
Howevere, the single license I purchase isn't and shouldn't be for MY use. I buy a car with parts made from a variety of manufacturers, and for some reason I can still sell my car to someone down the road. Should I be forced to remove the alternator, the tires, etc., before I resell it?!?
This whole argument is ridiculous, and it's a tribute to the utterly laughable state of the justice system on MULTIPLE fronts that they let stuff like this go forward. Just because it is software and CAN be duplicated DOESN'T mean it will be or MUST be, and the courts seem to operate on the worst case assumption rather than benefit of the doubt.
Hell, I thought this was a democracy predicated on individual freedoms.
-rick
You know that someone is going to come along with a remake of the infamous Apple 1984 commercial, promoting a rebellion against the Beast. Maybe with a take on the old myths of hell, where all of the people think they are eating the finest grub, but instead are revealed to be eating ashes and slime from the Abyss. The number of Advertising campaigns that could be mocked up around this are amazing.
And irony of Ironies, they could even be paid for by IBM. I can even imagine a voice over that says something like "hey we thought we were evil. Then we met Microsoft, evil on a scale that is simply awe-inspiring." Or mock commercials with the Ferengi advertising for Microsoft .Net
All you have to do is push the idea of "Don't Get Suckered by Microsoft!"
"It is a greater offense to steal men's labor, than their clothes"
As someone with a very strange cognomen pointed out earlier, a long time ago some book publisher tried this "licensed, not sold" stuff with a contract printed on the flyleaf of the book. The courts disallowed this, and created the first sale doctrine. That is, when you sell it, you have no say over what they buyer does with it.
The difference with software is less because of the less tangible nature of the product (bits aren't tangible, but the CD and manuals certainly are), but that judges are over-impressed with arguments that cyberspace is different. And precedents concerning software license agreements were set several decades ago, when the judges were not sure whether copyright law covered bits at all, and software patents were even more dubious, so the (then generally quite reasonable) license agreements were the only real protection software writers had. Since then the copyright law has been amended to clearly protect bits, the old ban on patenting mathematical algorithms has somehow disappeared, and so software does not need license agreements to protect against piracy. But they are still putting out those license agreements, and getting more unreasonable about the terms every year.
Maybe eventually enough technical savvy will filter into the courts that the judges will decide that software should sell under the same rules as everything else. That does not imply just the first sale doctrine -- what would really hurt MS is if the courts decide to apply the UCC's mandatory warranty of merchantibility to consumer software sales -- that is, if software follows the usual rules, the software vendor would be responsible for the software working _right_ in home computers. Given that possibility, their continued pushing of egregious license agreements and on-line activation seems almost like a corporate death wish, an attempt to push until they fatally tick off some judge.
But right now it might be more effective to agitate for legislative action, instead. The software vendors may be flooding Congress with contributions, but the corporations that buy software instead of selling it outnumber them many times, and they are getting hurt by this !@#$%^.
We need an anti-UCITA:
First Sale: Purchasing an individual software distribubution gives you the right to put it on any one computer of your choosing, to resell it, give it away, or even loan it as long as you can ensure it is operable on only one computer at a time. (Note that this does not apply if it is leased, not purchased, but the package had better make it clear that this is a lease for a specific time period. Also, it does not apply to site licenses, IF the full licensing agreement is presented before the sale.) Nor can individually purchased software be locked to the first computer you install it in, or shut itself down after a time period. If the vendor chooses to install and use a remote-shutdown feature to combat piracy, then if they shutdown a legal copy, they are liable for $100/hour until it's back up, and all incidental and consequential damages.
Implied Warranty: The UCC law makes many common "limited warranty" clauses null and void, like one saying that if the steering linkage falls off your car, your heirs are entitled only to a new steering linkage. Per UCC, the carmaker is responsible for the accident, too. Putting software fully under that now would put software vendors out of business, but as long as they get off scot-free for bad quality and even get to charge you for the bug-fixed version, most of them won't improve their quality. We need at a minimum the right to take the software back and get a full refund if bugs, which prevent it from operating as advertised, are not fixed promptly and at no cost. Also there should be compensation for phone bills and time and hold, and punitive damages when tech support tells you it isn't a bug and they already know about it.
This is in Canada, but the actions occurred because of bi-lateral trade agreements, that said something to the effect that software could not be rented (presumably because people are too dishonest to remove it from their systems when they were done with it.)
Personally, (and I write software for a living) I though it was a great way to increase sales. I think people who took it back wouldn't have bought the software in the first place, so those sales wouldn't have taken place in the first place. He was moving product, where other stores weren't.
It's things like this that make me think that capitalism is dead for the little guys in the world.
And here's the root of the problem.
To Microsoft, you are not 'purchasing' a product. You are *licencing* software. This is fundamentally different than buying a car, or a book, or anything else, where there is a definite product. This is how they try to tell you you can't re-sell it.
Now.. the problem is, according to the average consumer.. it LOOKS like a product, you can walk into the store and buy it off the shelf.. there are no negotiations, no lawyers involved... just a click-wrap agreement that we all know nobody reads.
Stores *Treat* it like a product.....
So it's a deception.
Please....If I purchase a bunch of paper with ink printed on it, it's still a book that I OWN. The author didn't provide the information provided in the book as a service. I purchased the information in that book the same way I purchased the information contained on my CD. I don't have the right to re-print more books, but I have the right to sell the book the same way I do my software. YOU may think of software as a service, but currently it is not sold as a service. When's the last time you went to the services department in Best Buy to pick up software? Can you feel the content of a book? Just because my brain in crunching the content, it doesn't make it any less of a *tangible* good.
It does apply to tangible goods. People lease cars, the phone company used to own your actual phone, my cable modem belongs to RoadRunner, and just about anything in the world can be rented to own. The real difference with that stuff is that you have to actually sign a contract that clearly states the terms and agreements-- and you get to read the contract before you pay the money to the vendor. But in most of those lease cases, one of my terms of agreement is that I can keep the item in question by paying a fee (which would allow me to later sell it).
However, if I buy software from Best Buy or Fry's or Computer City without signing a lease agreement, in standard retail parlance I haven't leased (or licensed) anything. I *bought* it. I don't think we need to worry about Joe Sixpack revolting, Joe Sixpack will just bitch about it over Buds during commercials on TV. What we need is for corporations and businesses and people with legal ability to take a stand against this sort of crap, instead of knuckling under when the BSA comes calling with their extortion racket.
I do not have a signature
Clearly Microsoft (and most of the software industry, not to single out just Microsoft.)is trying to have it both ways. They want to sell it like a product, but continue to collect revenue on it like a service. Another model says give away the software, and sell the service. Unfortunately that model hasn't worked very profitably so far.
But just because the 'software as a service' model hasn't worked yet doesn't mean it's wrong. Nor does it make 'software as a tangible good' or 'software as a tangible + continuing revenue' good.
In practice, it appears that after taking a considerable amount of time to bring a given piece of software up-to-snuff, it really is mostly done. Then, in order to treat it as a 'tangible + continuing revenue' product, you have to keep overdeveloping it, adding features and junk to 'justify' the continuing revenue stream. Hence the mess we call MS Word today, dancing paperclips and all.
The historical side of all of this is that software is sufficiently new, and the hardware it sits on has evolved so much that we've barely reached 'maturity' on anything. So thus far, software has had the appearance of tangible goods. I suspect that MS Office may be one of the few/first pieces of software to move past that category.
We're really talking about something fundamentally new in the past 20 years: Revenue for IP. Up until 20 +/- years ago, IP was sufficiently bound into some form of matter (books, records, etc) that it wasn't commonly distinguished from something physical. Now it is, due to super-cheap media like CDs and the ease of electronic distribution of the Internet.
Publishing (music, text, software, what-have-you) has always had two aspects, content creation and duplication/distribution. In a very fundamental way, the duplication/distribution part of the publishing industry is as obsolete as a buggy whip. But the duplication/distribution side is where most of the publicly perceived value lies.
Therefore the publishing industry is hanging on to that role as hard as they can, trying to keep their buggy-whip in the pre-automotive model, and using the government and copyright law to do it.
They're simply making too much money to let go of that revenue stream.
Same as prostitution.
The living have better things to do than to continue hating the dead.
Of course software is regarded differently than more tangible products. The reasons lies in the ease of which it is copied. Someone who Xfers ownership of a piece of software could very easily copy it first. Then, there are two copies of the SW. If, on the other hand, I buy a television set, it would be relatively hard for me to copy it before I Xfered ownership. There is no risk of piracy here, where there is for software.
Interesting. About 4 years ago, Microsoft was doing this, and I got a little tired of it. A quick restraint-of-trade complaint to the CA AG's office, they talked to eBay, and Microsoft shut up and went home. Looks like eBay needs to be reminded of this, and have it pointed out that that they've already had their hands slapped on this once.
Please....If I purchase a bunch of paper with ink printed on it, it's still a book that I OWN. The author didn't provide the information provided in the book as a service. I purchased the information in that book the same way I purchased the information contained on my CD. I don't have the right to re-print more books, but I have the right to sell the book the same way I do my software. YOU may think of software as a service, but currently it is not sold as a service. When's the last time you went to the services department in Best Buy to pick up software? Can you feel the content of a book? Just because my brain in crunching the content, it doesn't make it any less of a *tangible* good.
I think you're missing something. The CD or disk that contains your software is NOT the software. Nor is the book the work. They are copies of a work, and thus the use of the tangible thing - the book, the CD - is governed by copyright law.
As a matter of law (and that's really what we're talking about here - we're not arguing metaphysiscs), there's no particular reason why software could not be sold as a service. In fact, I think if someone were to dipute the legitimacy of 'software as service' concept in a high court, the ruling would come down on the 'software as service' side. Some kinds of software (i.e., AOL) are already a part of a service, so the model already exists, providing the precedent. And from a legal standpoint software-as-service would be highly practical since it would eliminate inconsistency in conception and enforcement.
Not that I condone the software-as-service idea. Try working for a non-profit org with 50+ computers... and worrying about whether you have enough money to relicense your OS next year when you barely have enough money to do what you need to get done anyway!
Well if you pay me, I'll install MY license on your computer. I'll also leave the disks over at your place too.
The license will still be owned by me, and it will be operated on only one computer. How is this not legal?
In fact even though I own the license there is nothing to stop you from doing the install yourself as long as ownership of the license remains with me. This would require a bit of trust, but doesn't seem to be at odds with transferring the license.
t
When you buy some software, or a book, or a record, you own the distribution media, and a licence to use the material contained thereon. Even though I don't own "Amipro" or "Imagine" or "Regular Polytopes", I do own a licence to use a copy of it on my machine. Buying any of these do not give me the right to set myself up as a redistributer.
So, technically, you don't own the copyright to the software, you do own the right to use a copy of it, and to hold such backups of the media as allowed in the agreement.
And it is that right that you might transfer under the cover of sale.
OS/2 - because choice is a terrible thing to waste.