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Software Transferability? (or the lack of it)

BarefootClown asks: "We've all seen the stories about Microsoft forcing eBay to remove auctions hawking their software. Microsoft is certainly the most visible target, but there are others. Most every EULA includes a clause forbidding the transfer of ownership of software (there are exceptions, of course, and kudos to them). My question is, have these clauses been upheld in court?" What is so special about software (and their licenses), that allows it to avoid the protections consumers enjoy from more tangible products?

"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?

471 comments

  1. So if software is not transferable. by SpanishInquisition · · Score: 2, Funny

    We shouldn't worry about that GPL 'virus'.

    --
    Je t'aime Stéphanie
  2. because... by spacefem · · Score: 4, Funny

    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.

    1. Re:because... by Anonymous Coward · · Score: -1, Troll

      IDC confirmed this week that *BSD accounts for more than 35 percent of
      all sales of poppers. This news serves to reinforce what we've known
      all along. *BSD is collapsing into complete homosexuality.

      You don't need to be a Turing to predict *BSD's future. The hand-
      wipings are on the wall; *BSD faces a bleak future. In fact there
      won't be any future at all for *BSD because *BSD is dying of the
      Virus. As many of us are already aware, *BSD continues to lose T-cells.
      Red pus flows like a river of semen. FreeBSD is the most endangered of
      them all.

      Let's keep to the facts and look at the numbers.

      OpenBathhouse leader Theo states that there are 7000 users of
      OpenBathhouse. How many users of NetBathhouse are there? Let's
      see. The number of OpenBathhouse versus NetBathhouse posts on Usenet
      is roughly in ratio of 5 to 1. Therefore there are about 7000/5 =
      1400 NetBathhouse users. Bathhouse/OS posts on Usenet are about half
      of the volume of NetBathhouse posts. Therefore there are about 700
      users of Bathhouse/OS. A recent article put FreeBathhouse at about 80
      percent of the *Bathhouse market. Therefore there are
      (7000+1400+700)*4 = 36400 FreeBathhouse users. This is consistent with
      the number of FreeBathhouse Usenet posts.

      Due to the troubles of Walnut Creek, abysmal sales and so on, FreeBH
      went out of business and was taken over by BHI who sell another
      troubled fuck hole. Now BHI is also dead, its corpse turned over to
      another fag house.

      All major surveys show that *BSD has steadily declined in market
      share. *BSD is very sick and its long term survival prospects are very
      dim. If *BSD is to survive at all it will be among OS hobbyist
      dabblers. *BSD continues to decay. Nothing short of a miracle could
      save it at this point in time. For all practical purposes, *BSD is
      dead.

      All major psychological tests show that *BSD has steadily declined
      in pussy-lust. *BSD is very sick and its long term survival prospects
      are very dim. If *BSD is to survive at all it will be among bi-curious
      high-school. *BSD continues to be gay. Nothing short of twenty-year-old
      Sophia Loren's gleaming, fragrant vulva could save it at this point
      in time. For all practical purposes, *BSD is gay.

    2. Re:because... by Anonymous Coward · · Score: -1, Offtopic

      So, do you get paid by Microsoft to post their propoganda to slashdot, to make it appear that people actually share their corporate views?

    3. Re:because... by Anonymous Coward · · Score: -1, Offtopic

      I AM A FUCKING DISGRACE

      someday i will paste right

    4. Re:because... by Anonymous Coward · · Score: 3, Funny

      And like prostitution, you sometimes get a little extra lasting effect, viral or otherwise. Just like IIS.

    5. Re:because... by Anonymous Coward · · Score: 5, Insightful

      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).

    6. Re:because... by Dman33 · · Score: 5, Funny

      So, is your software 'free' as in beer?

      Uh, no. It is costs money as in prostitute.

    7. Re:because... by linuxpng · · Score: 2

      well if it's because you were able to get things done with software, didn't you get from point a to point b in your car?

      if it's because you can make money with the software, doesn't your car take you to work? I don't see where this is any different.

      this seems to be companies trying to maximize their profits by 'asking for an inch.'

    8. Re:because... by ragnar · · Score: 2

      Is that because you get screwed?

      --
      -- Solaris Central - http://w
    9. Re:because... by blair1q · · Score: 2

      So what you're saying is,

      There's nothing more expensive than free software.

      --Blair
      "Except maybe an equity position in a can't-miss internet opportunity."

    10. Re:because... by dr-suess-fan · · Score: 2, Interesting

      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.

    11. Re:because... by blakestah · · Score: 5, Informative

      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.

    12. Re:because... by dachshund · · Score: 2
      Software is like prostitution. You got the product. You sell the product. You still got the product.

      There are plenty of instances where this simply isn't true. I remember a few months back when some university or lab was selling an old Cray computer of theirs. The computer required a proprietary OS to operate, and they had a licensed copy (which cost them a buttload.) Unfortunately, they couldn't sell it to the new potential owner because of the licensing restrictions. In effect, they were left holding a $200,000 set of disks that were useless without the computer. At the same time, the new customers were forced to go deep into the hole to purchase this exact same software from the company.

      Seems like there're no issues there. In any case, software companies are developing increasingly sophisticated licensing and copy-protection systems for their products. If these systems work as advertised, one person can't copy the product and sell it off to somebody else. Of course all of these can be broken, but they can be broken regardless of whether software sales are allowed or not.

      To me, it seems like you could say exactly the same thing about a book or a CD. Both can be copied before being resold.

    13. Re:because... by Alien54 · · Score: 5, Interesting
      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).

      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"
    14. Re:because... by debrain · · Score: 2

      You've thought about this way too much. And it shows. ;)

    15. Re:because... by Thatman311 · · Score: 1

      Just because you have a cd-rom with a bunch of pits and ridges doesn't mean you have a *tangible* good called software. You can think of an OS as a service. The service it provides is it allows you to use this piece of hardware that you bought. All the OS is is an interface to a number crunch (your cpu and parts). Nothing more nothing less. Even though you purchased a box with a cd-rom in it...it doesn't mean you have anything tangible because you can't feel software. You can't hold software. You can't burn software.

      --
      Silly Rabbit...Sig's are for kids.
    16. Re:because... by fishbowl · · Score: 1, Redundant

      Cray wanted to make money, and that university
      lab was a sucker to agree to those terms in the
      first place... and whoever bought it from them
      was also a sucker.

      --
      -fb Everything not expressly forbidden is now mandatory.
    17. Re:because... by Anonymous Coward · · Score: 2, Insightful

      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.

    18. Re:because... by cpt+kangarooski · · Score: 5, Insightful

      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.
    19. Re:because... by billybear · · Score: 3, Interesting

      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.

    20. Re:because... by Anonymous Coward · · Score: 0

      But prostitution is illegal

      1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 seconds before I can post. Gotta love those brilliant people behind the time limits on /.

    21. Re:because... by beejhuff · · Score: 5, Informative

      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
    22. Re:because... by Anonymous Coward · · Score: 0

      I don't get it.

    23. Re:because... by ethereal · · Score: 1

      Microsoft Rules of Acquisition Number 17: Version 3 is the good one, but that doesn't mean not to sell 1.x and 2.x first.

      --

      Your right to not believe: Americans United for Separation of Church and

    24. Re:because... by PeterMiller · · Score: 1

      Ok, here's a message to any German dudes....go set up a Microsoft Exchange auction site ASAP.

      Make BIG $$$ and don't register it with a .com.

    25. Re:because... by Anonymous Coward · · Score: 0

      let's see.. you concluded that software is a tangible good in approximately half a sentence of reasoning?

      and some idiots modded you up to "informative?"

      try "Flamebait."

    26. Re:because... by Enigma2175 · · Score: 3, Funny
      You can't burn software.

      What are you talking about? I burn software all the time! I also burn movies, TV shows and system backups.

      --

      Enigma

    27. Re:because... by raddan · · Score: 2, Interesting

      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!

    28. Re:because... by jerdenn · · Score: 1

      Huh? What country are you in?

    29. Re:because... by Bangback · · Score: 1

      Usually this happens due to the original purchaser buying it under a volume license, site license, or educational license. I had several DEC Ultrix machines given to me for free for non-profit work which ended up costing the grantee several thousand a year each since they were being used by a non-profit affiliate (and thus remained under the site license). So often it made sense at the time :(

    30. Re:because... by Mamaeh · · Score: 1

      Hmmm.... I don't know...

      It seems to me that software is more close to prostitution than is exposed in your text. In postitution business you don't buy the prostitute, you buy the right to use it. In software business you don't buy the software, you buy the right to use it.

      Now the question is :

      If I buy the right to use a prostitute, may I transfer this right to others ?

      I guess the same doubt applies to software too.

      --
      WYSIWYG Editor ? VI ! I see text, I get text.
    31. Re:because... by arantius · · Score: 1

      No, not any good can be considered a service that way.

      When I go to McDonalds and buy a hamburger, I own that hamburger. It is mine and I eat it. If I pay someone to mow my lawn, I have a mown lawn, but I have no lawn mower, and nothing besides what I paid for, a mown lawn.

      When I buy a car I do exactly that. I own the car, and I can do whatever (within legal bounds of course) I want with it. I can drive to work, I can put it in my garage and drool on it, whatever. It is mine. But you cannot own a service. I don't own the cleaning my dentist did on my teeth. He did it for me, and I paid him for it.

      And the grease that slips the gears of this whole situation is that computer software is very different from a product or service. Although it is somewhat of a product, and somewhat of a service (I don't think so but some companies would like it to be).

      Now of course the manual, the box, and whatever media be it floppy or CD or whatever is a product. But it is very different from every other product that exists. The reason is that it can, without cost or significant effort, be duplicated beyond legal bounds. When I buy a book, I can loan it to my friend. And he can read it, and life is good. But when I want to read the book again, he *HAS* to give me back my book. With software, I can 'give' my program to my friend, and we both have it.

      I've thought about this before and never came to a solution. Software can be copied, and with little argument we can say that will never stop, but that is not the issue here. In it's basest form, software is a product, and I can (should? be able to) sell that product, after which point the buyer can use it. But the little legal point is once I've sold it I can't use it anymore, while that is often not the case.

      --
      Health is simply dying at the slowest rate possible.
    32. Re:because... by BitwizeGHC · · Score: 2

      The ironic thing about that statement is, back in the early nineties when IBM still thought they were the Evil Empire, they codenamed a version of OS/2 "Farengi", their justification being that the Farengi get what they want no matter what the means.

      --
      N4st0r, trixx0r h0bb1tz0rz! Th3y st0l3 0ur pr3c10uzz!
    33. Re:because... by cpt+kangarooski · · Score: 2

      Okay look, software is a red herring here. The fact that they're selling you software has absolutely nothing whatsoever to do with anything.

      They could be selling you a book, or a car, or anything. Doesn't matter.

      And there's no question that it is legal to agree to an explicit contract wherein it is stated that you cannot resell the good that was sold to you via that contract. That's perfectly legal, unless there were something else altogether that could void the contact.

      The question is are EULAs, because of the way in which, and the time at, they are presented, legal contracts.

      If you went down to the Ford dealership and they sold you a car, and in the glovebox was a slip of paper saying "by driving this car you agree that you cannot resell it" we'd be having the same discussion. Don't get hung up on software. There's nothing terribly special about software in this regard.

      --
      -- 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.
    34. Re:because... by cpt+kangarooski · · Score: 2

      The use of the thing is not governed by copyright law unless the use is a special one that involves wide dissemination, e.g. public performance.

      Specifically with regards to software, the creation of copies necessary in order to operate the software (e.g. copies from CD to HD to RAM) or to back it up, provided that it was otherwise purchased legally, and are not retained if the software is sold or otherwise disposed of, are legal.

      But this is largely irrelevant. We're talking contracts. Mostly, we're talking, are the EULAs valid contracts?

      --
      -- 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.
    35. Re:because... by Anonymous Coward · · Score: 0

      You're correct. I can sell my book to someone else. I can also sell my CD to someone else, that doesn't mean that license to use the software ON that CD is transferred. Only the selling of the actual physical media has occured unless the license allows transferal.

    36. Re:because... by Anonymous Coward · · Score: 1, Insightful

      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.

    37. Re:because... by cpt+kangarooski · · Score: 1

      No. If for example, there were no license at all, the transfer would be entirely legal. The issue is whether the license is binding, or whether the default no-license state is defaulted to.

      --
      -- 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.
    38. Re:because... by Billly+Gates · · Score: 3, Insightful
      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.

      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.

    39. Re:because... by sg_oneill · · Score: 1


      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

      It's actually a rather horrible comparison. Because if you take the sex and she doesn't want to give it, she's still got the sex, but she's been raped. No one of course seriously believes working gals should be raped.

      Of course I presume you didn't mean that!

      --
      Excuse the Unicode crap in my posts. That's an apostrophe, and slashdot is busted.
    40. Re:because... by Anonymous Coward · · Score: 0

      Global Trade.
      OK, so say I live in USA and order my legal software from Germany(yes there are English versions for sale in Germany), and to muddy things open and accept the terms in Germany. After 2 years I choose to hawk it on *bay. Would a lawyer please debate. Now were MS half clever, they could utter something about not for export - but then the EEC would be correct to call in GATT- global price fixing.. nasty..
      I dont know why othr multinationals don't wise up and buy their legal software from India, China, and like places where it is cheaper/discounted to the locals. AS for support, well, you buy that seperate anyway.
      And if MS raises proces in China to G11 rates - well it is not surprising MS has sold not much in China. Just open a 'front' in the FTZ and flood grey market copies.

    41. Re:because... by blakestah · · Score: 2

      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.


      Bill Gates didn't finish two years of college, much less approach anything reminiscient of a law student. This becomes obvious from the accounts of any of the CEOs who have had to deal with him. He is a shrewd dealmaker who acts like a four year old when he cannot make the deal go his way.

  3. easy to transfer windows by Anonymous Coward · · Score: 5, Funny

    i recently transferred several copies on windows to my garbage...no problems, no visits from the police. it keeps the vagrants out of your trash too.

    1. Re:easy to transfer windows by Anonymous Coward · · Score: 0

      Yo, mod this up. It's funny. Laugh.

    2. Re:easy to transfer windows by Anonymous Coward · · Score: 1, Funny

      &gt i recently transferred several copies on windows to my garbage...no problems, no visits from the police. it keeps the vagrants out of your trash too.

      Yeah, but you gotta hide it in your trash well.
      Otherwise the Garbage men won't touch it either.

    3. Re:easy to transfer windows by CodeShark · · Score: 1

      Durn it, where's a moderator point when I need it. Laughed so hard I nearly tipped outta my chair...

      --
      ...Open Source isn't the only answer -- but it's almost always a better value than the alternatives...
  4. Nothing is special... by Rhyas · · Score: 1

    But you agree to the license by using the software, or opening the package, or looking at the product crosswise....

    -= Rhyas =-

    1. Re:Nothing is special... by DCheesi · · Score: 1

      The question is, would anyone accept this if it applied to tangible goods? Say you pick up that shiny new stereo at BestBuy, only to a note inside the box that says you don't actually own the receiver you just paid big bucks for, you've only licensed it? How long before Joe Sixpack would revolt?

    2. Re:Nothing is special... by Anonymous Coward · · Score: 1, Funny

      My Cat open's my software

    3. Re:Nothing is special... by ichimunki · · Score: 5, Interesting

      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
    4. Re:Nothing is special... by tiberus · · Score: 1
      The difference between this and software is that:

      1. You can buy a car
      2. You can now buy phones
      3. You can buy a cable modem
      4. ...

      Even leases can often be transfered and are much easier to understand that EULA's.

    5. Re:Nothing is special... by Anonymous Coward · · Score: 0

      However, since someone has figured out how to do this, there are companies that will buy out your lease from the MoCo and re-lease/reloan it to you on better terms, or get you out of the lease in the first place. Of course, you're taking a hit somewhere else down the line (like the "payday loans"), just like there are companies who will buy out insurance settlements from you: you get a big 50-60% of the lifetime value of your settlement in cash, they get to use the left-over as investment fodder, and make more money off what's left than you would have recieved over the lifetime of the settlement...

    6. Re:Nothing is special... by ynohoo · · Score: 1

      But you agree to the license by using the software, or opening the package, or looking at the product crosswise....

      I never read any EULAs. Just because they say I am agreeing to it by clicking thru it does not mean I agree to it. I have not signed any contract with them, neither have they signed a contract with me. Under natural law, this 'agreement' is just so much virtual toilet paper. I personally honor their copyright, because I believe it is a valid system, as for any books or music I buy.

      National laws remain to be tested in court, but I would be surprised if any judgement conflicted with the German approach. I am speaking as an individual user, not a corporate one; but corporations would normally expect to negotiate and sign a physical contract.

  5. copying by Reckless+Visionary · · Score: 2, Redundant

    Well, for one thing, you can't make a perfect copy of the car to keep and then sell the original. You can with software. I'm not agreeing with the liscensing restrictions, but there is a difference between the nature of the products.

    --
    I think I'll stop here.
    1. Re:copying by swordgeek · · Score: 5, Insightful

      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
    2. Re:copying by 11thangel · · Score: 2

      But that process is a duplication without intent to keep as a legal backup. Which is already illegal. The licenses don't need to account for those. I think the real issue is not the sale of the software for itself, but the transfer of hte license. As soon as you register that software with their database, though the net or whatever, that license number is associated with you. Again, not saying that I agree with it, but the way the current licensing setup works with most of these companies, it becomes very difficult to argue something without them giving a just as valid counter argument. (even if it's not a truthful one)

      --

      I am !amused.
    3. Re:copying by Teun · · Score: 1

      Wrong, let's take a kit-car like the Lous 7, anyone with determination can buy the individual bits, put it together and sell it. No legal problems as long as you don't claim it to be a Lotus, you can even without problems claim it's a copy/replica of a Lotus.

      --
      "The likes of Facebook and WhatsApp are free to those whose privacy is of zero value."
    4. Re:copying by Ser\/o · · Score: 2, Interesting

      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.
    5. Re:copying by kraig · · Score: 1

      What difference does the nature of the products make? Should there be mandatory speed governors on any vehicle capable of exceeding posted speed limits, because it might be possible for somebody to speed in that vehicle? I, for one, have a huge problem with being accused of being a criminal - which, let's face it, such software restrictions do. "Because you CAN copy this and resell it, we'll make it illegal for you to resell it to!" Never mind the fact that copying it in the first place was illegal anyway.

    6. Re:copying by Anonymous Coward · · Score: 0

      no, there shouldn't be 'mandatory speed governors' on cars capable of exceeding the speed limit. however, if a car company decides to put speed governors on its cars to prevent them exceeding the limit, that's the company's choice, just as it's your choice to buy or not to buy the car.

      the distinction between microsoft and the government is difficult to grasp, i understand, but work on it a bit.

    7. Re:copying by ScuzzMonkey · · Score: 2

      I would guess that you're just trolling, but if not you seem to have missed the point. Even if you assemble a second car identical to the first, you still ended up paying for all the parts again, plus whatever labor went into it. It's nothing like duplicating software--with something tangible, duplication has the cost of materials tied into it. There are no legal problems because you HAVE paid for both 'copies' of the car. Duplicating software has no practical cost to it... which means the manufacturer of the individual bits gets nothing when you copy them.

      --
      No relation to Happy Monkey
    8. Re:copying by CamelTrader · · Score: 1

      But this is exactly what the RIAA and DMCA folks want. They want to essentially license out a copy of an album for you to listen to. Just like software, you wont "own" anything, but merely have the right to listen to it, and NOT make copies. I bet they would be more than happy to emulate the computer industry and make audio CDs non-transferable, but WHO would put up for that? Its utter garbage in the case of audio CDs, and garbage in the case of software CDs too. The software people just have more riding on this issue, and so are devoting more resources to it.

      --
      Your .sig is important to us. Please hold.
    9. Re:copying by jiheison · · Score: 1

      Even if you assemble a second car identical to the first, you still ended up paying for all the parts again, plus whatever labor went into it. It's nothing like duplicating software--

      Actually, it is exactly the same as duplicating software. You are paying for the media and the duplication equipment. Chances are you are paying more to create the duplicate than the original manufacturer paid to create the original because of economies of scale. Nonetheless, you HAVE paid for both copies.

      Much like a software on a CD, the real cost of a car comes from the R&D that went into developing it. However, if you agree that replicating the physical manifestation of a car is legal, you can't argue that replicating the phisucal manifestation of a peice of software is not.

    10. Re:copying by swordgeek · · Score: 2

      Exactly right. That's why I said, "At present."
      I'm not looking forward to the next iteration of audio media, because they'll make sure to license it more tightly every time.

      --

      "People who do stupid things with hazardous materials often die." -- Jim Davidson on alt.folklore.urban
    11. Re:copying by ScuzzMonkey · · Score: 2

      I disagree. The assumption that the software is the media is wrong, or at least vastly over-simplified. For starters, you don't actually need 'media' to transfer software, or any other sort of intellectual property (and that's the heart of the distinction, I suppose--software is IP, cars are Real Property). You need a medium, but it could as easily be RAM, or reading the code aloud, or whatever. So when you're comparing the physical manifestation of the two items, you're missing crucial distinction--the physical manifestation of a car, is the car. The physical manifestation of a piece of software, is NOT the software.

      And that argument has nothing to do with whether or not the replication of either item is legal or not. As I said, they are different sorts of property, and different laws apply.

      --
      No relation to Happy Monkey
    12. Re:copying by jiheison · · Score: 1

      The assumption that the software is the media is wrong, or at least vastly over-simplified.

      Read my comment, that is NOT my assumption. I was simply stating that if it is acceptable to build a replica of a car, as you seem to believe, it must be acceptable to replicate software. In both cases you are using the IP that went into the original creation, to create a substitute for the original, thereby depriving the original creator of revenue.

      ('media' is the plural of 'medium'.)

      And that argument has nothing to do with whether or not the replication of either item is legal or not.

      Maybe not, but if you condone one, you must condone both.

    13. Re:copying by ScuzzMonkey · · Score: 2

      Jesus, there's nothing I hate more than people who tell you to read their comments who haven't read yours. Where exactly did I say I thought it was okay to build a replica of a car? And why on Earth do you think that's even what we're talking about? This is not whether it's 'okay' or not, it's about the ramifications of the analogy. You still don't seem to be able to grasp the difference between real and intellectual property. The fact is, buying a CD to duplicate software is not a necessity--buying the parts to assemble a copy of a car is. The plans for a car are the IP--the car is not. Duplicating the plans is analogous to duplicating software--duplicating the car is not. They are apples and oranges, which is the whole point--which makes your "...but if you condone one, you must condone both" sound not logical, but silly.

      And a 'medium' such as sound waves or electrical impulses is not the same as computer 'media'. I apologize if you didn't understand the distinction being made.

      --
      No relation to Happy Monkey
    14. Re:copying by jiheison · · Score: 0, Flamebait

      Jesus, there's nothing I hate more than people who tell you to read their comments who haven't read yours. Where exactly did I say I thought it was okay to build a replica of a car? And why on Earth do you think that's even what we're talking about?

      Let's review your original comment :

      Even if you assemble a second car identical to the first, you still ended up paying for all the parts again, plus whatever labor went into it. It's nothing like duplicating software--with something tangible, duplication has the cost of materials tied into it. There are no legal problems because you HAVE paid for both 'copies' of the car. Duplicating software has no practical cost to it... which means the manufacturer of the individual bits gets nothing when you copy them.
      (emphasis added by me).

      Does that answer your question? I am simply pointing out why they are not as different as you assume.

      The fact is, buying a CD to duplicate software is not a necessity--buying the parts to assemble a copy of a car is.

      Maybe not a CD, but you must provide storage of some kind and storage costs you something. The fact that the cost is infintessimally small does not change the principle. That your whole argument about how IP is somehow different that regular property is based on the fact that IP is easier to copy belies its logic. I suppose you think it is more illegal to replicate a Porsche than it is to replicate a bicycle. In all of these cases, the act is the same. Their relative cost or difficulty is immaterial.

      And a 'medium' such as sound waves or electrical impulses is not the same as computer 'media'. I apologize if you didn't understand the distinction being made.

      Your distinction is based on complete ignorance of the definition of medium, and its relationship to the word media. Simply put, a medium is a conveyance or storage device. More than one meduim, is media. Computer media, be it CDs, a hard disks or RAM, is a conveyance or storage device for information that a computer can use.

    15. Re:copying by kraig · · Score: 1

      I don't object to not having a choice (because I do - I have one Windows machine in the 10 or so I have between work and home, and it's my home game machine, with a legal license and all, TYVM).

      I DO object to being treated like a criminal by companies that want my money.

  6. It is because of piracy... by frleong · · Score: 3, Informative

    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.

    --
    ¦ ©® ±
    1. Re:It is because of piracy... by Garc · · Score: 1

      I think that this is the same thing that you said:

      From my experience, they don't allow you to sell a shrink wrapped product with the wrapping removed. If It's stlil in its 100% original packaging, you can resell it on ebay.

      garc

    2. Re:It is because of piracy... by Anonymous Coward · · Score: 0

      The concept of OEM was outlawed in germany at least

    3. Re:It is because of piracy... by maetenloch · · Score: 5, Interesting

      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.

    4. Re:It is because of piracy... by fossa · · Score: 0

      My university's chapter of the ACM hosts presentations given often by Microsoft. These presentations usually end with the Microsoft rep. giving away expensive software packages (in shrink wrapped boxes) to people whose names have been drawn from a hat.

      The wise and common thing to do is to immediately sell the product on ebay for significant profit. I imagine this scenario is common to many universities.

    5. Re:It is because of piracy... by sphealey · · Score: 2

      "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."

      I am no big fan of Micro$oft, but I have a hard time seeing what is wrong with what you describe. Propriatary software is NOT free as in beer. While IMHO (IANAL) it is (or should be)perfectly legal for the original purchaser to re-sell his product (or license), it is also perfectly reasonable for the producer to enforce his right not to be pirated. If you don't have the original box, jewel case, and receipt, you very probably DON'T have a legal copy to sell.

      I have been keeping PC software boxes and disks since 1983 (160k floppies anyone?). When we are darn sure we don't need that product anymore, we destroy it all, or sell it all in the original box. No box - no license.

      Or am I missing something?

      sPh

    6. Re:It is because of piracy... by Anonymous Coward · · Score: 1, Insightful

      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.

    7. Re:It is because of piracy... by johnos · · Score: 2

      Uh Oh... You haven't been paying attention. This story from May explains how Microsoft and ebay are conspiring to make life easier for themselves. Hard to say if MS is conceding the point at hand, or if they are intentionally confusing the situation. In any case, they do not directly address what we are talking about here. The article does mention that MS is going after "infringing" software with no specific definition of what constitutes infringing.

    8. Re:It is because of piracy... by Godwin+O'Hitler · · Score: 1

      Or am I missing something?

      Yes: we don't all live in warehouses.

      I throw CD boxes away and store the CDs (ROM or Audio) in wallets to save space, nothing else. Microsoft don't pay me rent, so I don't keep their boxes (or at least I wouldn't if ever I was stupid enough to buy one).

      --
      No, your children are not the special ones. Nor are your pets.
    9. Re:It is because of piracy... by Anonymous Coward · · Score: 0

      This is like a book company putting a stop to an auction cause the book doesn't have a dust cover. Then demanding that you should show them the receipt for that book before you can resell it. It is insane and a big abuse of rights. If you have the disk and the bit of paper that gives you the license to the software when you by rights should be able to sell that.

    10. Re:It is because of piracy... by fishbowl · · Score: 2

      > If you don't have the original box, jewel
      >case, and receipt, you very probably DON'T have
      >a legal copy to sell.

      Baloney. I have lots of legit CD's, without
      the rest of that stuff. These guys aren't selling CDR's of Win98. They are trying to
      resell a product just like they do all their
      other merch.

      --
      -fb Everything not expressly forbidden is now mandatory.
    11. Re:It is because of piracy... by Anonymous Coward · · Score: 0

      I guess if that were the case, then the auction of music CDs/Recors/Tapes will have to be stopped too, because it is supossed that this is considered a "service" as well as the M$ software... I think that kind of behaviour is nosense!. Explain why the record companies don't forbid auctioning recorded materials?, why only M$?.

      The answer is very clear...you'll figure it out.

    12. Re:It is because of piracy... by sphealey · · Score: 2

      "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"

      Your refrigerator cannot be duplicated by the thousands at essentially zero cost. If it could... well, Poul Andersen and Larry Niven, among others, have written stories about what would happen in that case. But in the physical world as it exists today, the reality is that entities that sell intellectual property-based products will take stronger measures to protect their right not to be pirated.

      Also, please note that if you lose the title to your car, you will have a devil of a time selling it, even if you have the car in your possession.

      sPh

    13. Re:It is because of piracy... by sphealey · · Score: 2

      "Yes: we don't all live in warehouses"

      That's your problem, not Microsoft's. Again, I don't like Microsoft's licensing policies, and I am this week investigating how to replace some of our M$ software with Linux and StarOffice. But if you lose the title to your car, you will have a hell of a time selling it, even if everyone and their brother "knows" it is yours.

      sPh

    14. Re:It is because of piracy... by Anonymous Coward · · Score: 0

      It is simple to get another title issued to you by your local license branch. Also, it is not the car dealer requiring me to adhere to their restrictions. The title system for cars is I would presume to reduce theft and prove ownership in a manner that protects and helps legit citizens. Microsoft is not protecting nor helping legit citizens in this case.

    15. Re:It is because of piracy... by Anonymous Coward · · Score: 0

      But if you lose the title to your car you can go to the DMV and get a new one, even though it will cost you. Where are you supposed to get a new sales reciept after you lose the old one?

    16. Re:It is because of piracy... by WNight · · Score: 2

      Since when does a third-party to the deal (Microsoft) get to forbid something which may be illegal? If they think I'm breaking the law (selling warezed copies) then they need to call the police, who on seeing evidence, can investigate further.

      Besides, all I need to sell Windows is the CD it came on. Why should I need to keep original receipts to prove that the legit CD is legit?

      You're advocating guilt until proven innocent, and allowing MS to enforce the law without bothering with a trial.

      If MS thinks I'm selling a pirated copy of windows, they should buy it, and if I did, sue me. (Both for fraud as a seller, and copyright violation.) Otherwise they're out of luck.

    17. Re:It is because of piracy... by charon_on_acheron · · Score: 1

      sphealey said: "Also, please note that if you lose the title to your car, you will have a devil of a time selling it, even if you have the car in your possession. "

      Actually, this is because you don't legally own your car. The government does. They provide a 'service' that allows you to use their car, and call it yours, but not transfer ownership of it without their permission. The title is their EULA, and it the only thing that makes speeding tickets and DUI fines enforcible. Since you agree to use their car on their roads, they can punish you how they wish for violating the license.

      IANAL, but I listen to them sometimes.

    18. Re:It is because of piracy... by Theodrake · · Score: 1
      Are you sure about that. I've tried to have repair work done and had to prove I owned the item. The fact that the state doesn't require title to be shown as with a car or house, doesn't mean there isn't a law somewhere stating you need to show proof of ownership. And anyone smart enough should get some sort of documentation that they purchased the item from you.

      If the people paid you cash and then you filed a claim with your insurance that it was stolen and a police report. The purchaser of the frig would most likely, with out proof of purchase, be assummed guilty and have the frig repossed.

      So just because we don't, in our day to day lives, follow all the laws (written or common) doesn't mean they don't exist.

    19. Re:It is because of piracy... by swv3752 · · Score: 1

      You should ownly need the COA and Original CD.

      --
      Just a Tuna in the Sea of Life
    20. Re:It is because of piracy... by HiThere · · Score: 2

      Because MS has been able to get away with it.

      --

      I think we've pushed this "anyone can grow up to be president" thing too far.
    21. Re:It is because of piracy... by Grishnakh · · Score: 2

      So the difference between this case and the eBay case is that in the first, the government is restricting how you use and re-sell an item. Of course, this is ok, since the government is an elected body that also writes our laws. But in the eBay case, the enforcing is done by Microsoft, which is not elected, and doesn't (theoretically) write laws for anything. So how is it ok for Microsoft to police software sales?

    22. Re:It is because of piracy... by Rakarra · · Score: 1
      Ummm... not quite. You do own the car. Completely. Not the government. However, you agree to do certain things in order to drive on government (public) roads. You don't have to get a license or insurance if you're only driving it on private roads, but of course that's pretty useless since just about everyone's driveway empties onto a public road.

    23. Re:It is because of piracy... by scraemondaemon · · Score: 1

      This is good information. Just this week I was going to put up a copy of Windows 98 SE that I purchased last summer. It's the full retail version, not an upgrade. After being unable to install it initially, I put it on a shelf and installed the usual suspects, Debian GNU/Linux and FreeBSD. To make sure this CD-ROM of Windows wasn't bad, a friend and I installed it on another computer. It installed flawlessly(of course we immediately formatted the drive afterwards). A couple months later, I remembered I had Windows and once again attempted to reinstall. This time I wrote down all the error messages in full, and gasp!, called Microsoft for tech support. After spending three hours on the phone with a technician, he came to the conclusion that it must be my hardware. I told him that this system had GNU/Linux, Free|Open|Net BSD, and Solaris Intel(I'm not kidding) on it at one time. He still thought that it was my hardware and that there was nothing that they could do. He suggested that I email Microsoft's Sales Dept.

      If I am able to sell it on Ebay, I still won't get back what I paid originally. It could also be argued that I should have returned it to the store right away after the failed installation.

      I am going to e-mail Microsoft about this issue, and if anyone wants to know what their response is, I can send it to /. along with my original e-mail to Microsoft.

    24. Re:It is because of piracy... by Anonymous Coward · · Score: 0

      "I have been keeping PC software boxes and disks since 1983 (160k floppies anyone?). When we are darn sure we don't need that product anymore, we destroy it all, or sell it all in the original box. No box - no license."

      Just because you have some fucking mental abnormality that makes you a packrat, don't defend MS.

      Really, it might be better just to throw yourself off a cliff.

    25. Re:It is because of piracy... by maetenloch · · Score: 1

      If you don't have the original box, jewel case, and receipt, you very probably DON'T have a legal copy to sell.

      Even if 99% of software in this form (which mine wasn't) is pirated, it still should not give Microsoft the right to have my auction of non-pirated software pulled. To do this, they had to swear to EBay that they believed my item for auction was infringing on their IP rights. In actual fact, they had no idea whether it was or not, and were just having it yanked as a matter of course. And yes I do believe demanding to see receipts is out of line.

      This is just Microsoft's way of stamping out the secondary market of their products.

    26. Re:It is because of piracy... by Sloppy · · Score: 1

      If you don't have the original box, jewel case, and receipt, you very probably DON'T have a legal copy to sell.

      What makes you think that?

      Or am I missing something?

      You're missing that the burden has been given to the wrong person. He shouldn't have to prove that he bought it. Microsoft should have to prove that he didn't.

      Why? Because it's much more likely that he's legit. The default answer should always be what is most probable.

      --
      As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
  7. features by mkoz · · Score: 1

    The biggest problem here is that people who use [and therefore in some cases buy] software do so because of the features of the software. While it would be nice if the company was cool enough to allow transfer of licences, or support multiple operating systems, or any other of nice things... it does not tend to be a factor affecting purchasing.

    1. Re:features by Anonymous Coward · · Score: 0
      The biggest problem here is that people who use [and therefore in some cases buy] software do so because of the features of the software. While it would be nice if the company was cool enough to allow transfer of licences, or support multiple operating systems, or any other of nice things... it does not tend to be a factor affecting purchasing.
      There is the primary reason - people put up with it
  8. Software is licensed, not sold by ljnelson · · Score: 5, Insightful
    I'm not arguing that this is correct, but strictly speaking software is licensed, not sold. That means you don't own it. If you don't own it, you can't sell or resell it.

    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.

    1. Re:Software is licensed, not sold by Anonymous Coward · · Score: 5, Funny

      That's fine then, I can't sell the software, because I don't own it. No problem, I won't sell the software, but I'll sell my license to use the software. As an added bonus, I'll give you the disks with the software on it. What's wrong with that?

    2. Re:Software is licensed, not sold by leifb · · Score: 1
      But strictly speaking I *do* own the CD_ROMS, the manual, and the packaging.


      *Those* are what I'd be selling on eBay.

    3. Re:Software is licensed, not sold by Hard_Code · · Score: 3, Interesting

      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?
    4. Re:Software is licensed, not sold by TheCarp · · Score: 3, Interesting

      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"
    5. Re:Software is licensed, not sold by UnknownSoldier · · Score: 5, Insightful

      > but strictly speaking software is licensed, not sold.
      Correct.

      > If you don't own it, you can't sell or resell it.
      That's not entirely correct - IF the contract that you signed, gives you permission to sell/resell the thing you have licensed, then you can sell/resell it.

      The contract may also be a pseudo contract ("First Sale Doctrine")
      i.e. you have the right to sell music you buy, because it is "reasonable" that buyers have the right to sell what they purchase, even though you DIDN'T sign anything claiming privileges were transfered to the buyer.

      Things to think about:

      - If you don't own the software you have licensed, do you own the car you have "licensed" as well ?
      - Who owns your time and goods, if you need a "license" to engage in business?

      Remember, what does a license mean? Legal permission to do something, that normally you wouldn't have.

    6. Re:Software is licensed, not sold by coldmist · · Score: 1

      What about the CD-ROM that the software came on? You're saying you don't own it?

      It's identical to the Peanuts cartoon. If you bought a newspaper with that cartoon, you can sell that newspaper (or just the funnies page) to your coworker, without telling the Newspaper or the media syndicates. The newspaper licenses the Peanuts cartoon, but you still hold a copy in your hand which you can resale.

      The deal is you shouldn't have made a photocopy of the Peanuts cartoon before you sold it, just like you shouldn't have made a copy of the CD of the software you are selling. And you should have removed it from your computer(s).

      The doctrine of First Sale should be just as relevent for software as it is for printed material, once software attained "copyright" status.

      Copyright protections prevent the making of additional copies of the newspaper itself, but if you buy a "newspaper", you can resale it. Copyright protections prevent the creation of new copies of the software, but if you buy a "program", you should be able to resale the CD.

      (net downloads, ie no media, is for another discussion.)

      --
      Don't steal. The government hates competition.
    7. Re:Software is licensed, not sold by dillon_rinker · · Score: 3, Insightful

      - If you don't own the software you have licensed, do you own the car you have "licensed" as well ?
      You buy the car and own it outright. The license gives you the non-transferable right to operate the car on public roads.

      - Who owns your time and goods, if you need a "license" to engage in business?
      You do. The license gives you the non-transferable right to operate the business. I'll granted that the gubmint controls your time and goods, but they do not own them.

    8. Re:Software is licensed, not sold by sphealey · · Score: 2

      "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. "

      No, but you can sell your entire publication, including your archive of past editions containing the Peanuts cartoon, to another publisher. Generally speaking (IANAL) as long as the new owner abides by the original license (e.g. pay UFS for each back issue sold) they can't prevent this transfer.

      sPh

    9. Re:Software is licensed, not sold by AaronStJ · · Score: 3, Insightful

      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.

      This anology isn't quite right. When you purchase software, you purchase the right to use it, not the right to dristribute it. It's more like if you bought a Peanuts book and read it. Don't you have the right to give the book to a friend?

      No lawyers are banging down the doors of used book stored, that's all I know.

      --
      Stupid like a fox!
    10. Re:Software is licensed, not sold by kaisyain · · Score: 1

      How is software different from the vast majority of residential leases which say I can't sublet the property? It seems like it is pretty much the same deal here.

    11. Re:Software is licensed, not sold by jonnythan · · Score: 2

      You're a PARTY to it. It is a license that (supposedly) you and the publisher agreed to. If you resell it, you can't transfer that license. They need to make their own agreement with the publisher.

    12. Re:Software is licensed, not sold by Martin+Spamer · · Score: 2

      I'm not arguing that this is correct, but strictly speaking software is licensed, not sold. That means you don't own it. If you don't own it, you can't sell or resell it.

      This makes no difference [in the UK], you own one copy of the licence, which you can [re]sell. manufacturers or retailers cannot impose limitation or conditions that counter your statutory rights. Indeed the courts take a very dim view of those that try to limit your rights through unfair trading practices.

    13. Re:Software is licensed, not sold by Foochar · · Score: 1

      Actually you still can't copy that book. Why you ask? In most books there are gramatical corrections, typesetting changes etc. made by the publisher that place the book back under copyright. This becomes even more true with things oringally written in a foriegn language, or in pre-modern English. The translation of a foriegn language piece, such as a play by Checkov is copyrighted, not just the play itself. Even Shakespeare's works have to "translated" into modern English.

      Project Guttenburg often goes through great pains to find books that the copyright has actually expired on so that they can create Guttenburg texts.

      --
      "You can't fight in here! This is the war room" --Dr. Stra
    14. Re:Software is licensed, not sold by mindstrm · · Score: 2

      Right.
      But I walk into a store, And I *purchase* something from them. Nobody tells me about any 'licence', and nobody tells me anything otherwise. I take the item I'm buying to the cashier, and give her/him money, and they give me my receipt for my purchase, and my product.

      Then AFTER I open it up.. I get this 'click here to say you agree to these terms to continue'...
      Of course, the store has a 'no refunds on open software' policy...

      So I'm fucked.

    15. Re:Software is licensed, not sold by Matrix14 · · Score: 2, Insightful

      So what? Someone is not trying to sell the liscense, they're trying to sell the physical disks. If I go to the store and buy a piece of software, I don't buy the liscense. I buy the physical disks and whatnot, and they're MINE! I won't be bound by the EULA till I actually break the seal on the disk. I can, if I so choose, resell the disks. For all I know, the buyer wants to use them to make pretty sparks in a microwave! It's similar to a book. If I buy a book, I can't copy and sell copies, and I don't own the copyright. I, do however, OWN the actual poaper and ink of which the book is made. When I buy software from the store, I don't sign anything that says that I am actually leasing the physical media and that I can't resell it. I am purchasing the media, and it becomes mine to do with as I please. The software is different story, but that which is sold, is actually and physically sold.

      -M

    16. Re:Software is licensed, not sold by Matrix14 · · Score: 1

      gah...I see someone already said this...:-!

    17. Re:Software is licensed, not sold by T.+Bombadil · · Score: 3, Informative

      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.
    18. Re:Software is licensed, not sold by Theodrake · · Score: 2, Informative

      Because the contract/license you agreed to prohibits it.

    19. Re:Software is licensed, not sold by Anonymous Coward · · Score: 0

      Yes, but I've yet to see "off the shelf software" licenses name me specifically as a participant in the license, so good luck holding me to that part of the software agreement. Most software licenses I see start off with "The holder of this license...". Well, because I'm not specifically named as the holder, I feel that I can, and will transfer that position as I see fit. That way I'm not selling the license either, I'm selling my right to hold a position of a participant in the contract. Or the right to hold the license.

    20. Re:Software is licensed, not sold by haystor · · Score: 3, Interesting

      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
    21. Re:Software is licensed, not sold by Fujisawa+Sensei · · Score: 1

      If I go to Best Buy, and I give the $400 or whatever, and they give me a box with windows 2K in it, what am I doing if I'm not buying it?


      If you don't own it, you can't sell or resell it

      What is a license? A contract? I would think that it's a contract because is has the, "End User License Agreement". Contracts can be bought and sold, same with loans. If is says "if you don't agree the terms, here's what you need to do", what if those are part of the terms I don't agree with?


      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.

      But if get the right's to use it in an advertisment for your company, and you sell the company, presumably the rights would go along with it.


      That not a valid comparison because the terms of license agreed to before the money has exchanged hands. I don't seem anybody at Best Buy making me sign papers to the contrary before they have my money. And most stores usually have a policy of not accepting returns on software that has had the seal broken, so even if you do not agree to the EULA you're still SOL.

      --
      If someone is passing you on the right, you are an asshole for driving in the wrong lane.
    22. Re:Software is licensed, not sold by Prong · · Score: 2, Informative

      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.

    23. Re:Software is licensed, not sold by AbsoluteRelativity · · Score: 1

      This is why people give "information property" away for free or barter for warez online, it has little to no value after you buy it.

      --
      disclaimer : My views do not represent those of every one else in slashdot.
    24. Re:Software is licensed, not sold by Anonymous Coward · · Score: 0

      Fucked Indeed!

      By and large manufacturers control the return policies at the store level. This is particularly true among their largest customers. (In the Microsoft case e.g. Office Depot, Staples, WalMart etc.)
      In the MS "license agreement" it clearly stipulates as a part of the "agreement" you may return it to the store for a full refund. But Wait! The store refuses to accept returns of opened software.
      Microsoft and the retailer are both fully aware of this wicked game. They profit from what is clearly a consumer fraud. Made all the more evil because in the U.S. Microsoft is guilty of being an illegal monopoly.
      The problem here is the corruption of elected officials. Check out Sen. Fritz "the shitz" Hollings (Democrat S.C.)and his "Sucka" law. Everything is tilted in our courts today to benefit the corporations and not to create and foster a fair environment where all may benefit and profit from innovation.

      OK. You can have the soapbox back.

    25. Re:Software is licensed, not sold by Twylite · · Score: 2

      Strictly speaking this is not correct. Gee, I've heard the line before ;) Licensing is analogous to letting or renting, not to a sale subject to limited rights. At least, it is in terms of software and most other duplicatable intellectual property.

      In the same way as you cannot sell a flat that you are letting, you cannot sell software that you are letting. In both cases you are bound to terms of agreement for the rental.

      This is the model that software has informally followed; MS's latest licensing attempts move to the letting route far more clearly.

      OTOH there are requirements for letting that place an onus on the owner; another aspect which has not been tested in court. If a flat is defective, it is the owner's responsibility to fix the problem in an acceptable manner and in a reasonable timeframe. By extension, software should be subject to the same requirements: bugs will HAVE to receive attention.

      One final nasty: if a flat is in such poor condition that the letter or his/her property is damaged, the owner can be held liable. How many billions of Dollars of damage did Codered, SirCam and Nimda (apparently) cause?

      --
      i-name =twylite [http://public.xdi.org/=twylite], see idcommons.net
    26. Re:Software is licensed, not sold by nosferatu1001 · · Score: 1

      Because, numnutz, you ddin't pay your money for the property in advance,THEN find that in order to enter the property you had to walk through a adoor marked "by entering this property you agree to these conditions" on the floor beyond, which if you don't like the terms you can get a refund. But ooops! the letting agent doesn't allow refunds on purchases where you have opened the door. [ok, slightly screwy analogy, but it's the end of the week]

      The point is that BEFORE you handed over your money for the property, you go to see what the contract was. This is not the case with supposed "shrink wrap" agreements. When i walk into a store, and actually buy software, I have NOT entered into any kind of licensing, as I have not *signed* anything that says I have, and that names _me_ specifically as a party to the license. A click thru canot constitute a contract - for example if a 17 year old clicks it. They have NOT made a contract, as no minor can without the additional consent of their parent[s] or guardian[s]. Therefore no restrictions on the transfer of the software can occur.

    27. Re:Software is licensed, not sold by mrbester · · Score: 1

      Any store that refuses to redeem any software (media) that I buy from them that I return for whatever reason with the seal broken (incorrect packaging, crappy copy, incomprehensible or offensive / unagreed EULA etc) is liable to a major legal kicking. I had to open the thing to discover the fault and now I don't get a comeback? Uh-uh. Not happening.

      If they can shrinkwrap a returned CD they can put plastic round a cardboard box. I'm not saying they should refund my money as they don't have to do that, just a credit note so I can then pick out another item for equivalent (or greater) value (and pay the difference, should there be any) so I can do this again.

      --
      "Wait. Something's happening. It's opening up! My God, it's full of apricots!"
    28. Re:Software is licensed, not sold by elgardo · · Score: 1

      Here's an interesting thought...

      When I buy the package in the store, I buy the physical media, and I have not yet entered an agreement with the publisher. I then open the box and start installing. Up comes the license. I agree to the license. However, the license would then only cover the installed copy, not the physical media, since I already own the physical media myself.

      After the install, I should then be able to sell the physical media again; the buyer begins the new installation. When the license comes up, this would be a brand new license, which is completely independent from the license *I* agreed to.

      Feel free to shoot holes in this loophole...

  9. Lower The Cost by Killer1nstinct · · Score: 0

    Im sure if MS ever got any brains and would lower the price of their OS for the consumer, piracy of their OS would be somewhat lower (not a great number lower, but Im sure there would be some type of decline). They charge an arm and a leg for the average computer just to stay up to date in terms of operating system, yet people wonder why Linux is such a threat to Microsoft. You know why? PRICE. Lower the price, lower the piracy of MS products...

    1. Re:Lower The Cost by Teun · · Score: 1

      Well, what about if they'd just charge a decent amount for an upgrade, M$ upgrades are building on existing technologie. It's not like they re-invent the OS with every release, so how can an upgrade be so expensive....

      --
      "The likes of Facebook and WhatsApp are free to those whose privacy is of zero value."
  10. Caveat Emptor by HardCase · · Score: 3, Insightful
    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?


    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-

    1. Re:Caveat Emptor by aozilla · · Score: 2

      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.

      They most certainly do. What car lease do you know which is transferrable? Car leases are almost always non-transferrable. They don't tell you to throw it in the trash, because not only can you not sell it, you have to keep it and make sure nothing bad happens to it. At the very most, on an open ended lease, you can return the car in perfect condition and stop paying your lease payments.

      --
      ok then your [sic] infringing on my copyright! Could you as [sic] me next time before STEALING my comments for your own?
    2. Re:Caveat Emptor by Anonymous Coward · · Score: 0

      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.

      I'd say that the public has come to accept, as a condition for using software, that they have to press "I agree" to a page of legal blather that they cannot possibly understand, but that's a far cry from saying that the public accepts and agrees to the terms of said blather.

      I wonder what percentage of the population says, "Yeah, right", or "Fuck You" under their breath when they press the "I agree" button.

    3. Re:Caveat Emptor by charon_on_acheron · · Score: 1

      I just posted this in another response, but it is needed here too, I guess.

      "Obviously cars aren't software, particularly since when you buy a car, you buy the car. "

      Actually, ... you don't legally own your car. The government does. They provide a 'service' that allows you to use their car, and call it yours, but not transfer ownership of it without their permission. The title is their EULA, and it the only thing that makes speeding tickets and DUI fines enforcible. Since you agree to use their car on their roads, they can punish you how they wish for violating the license.

      IANAL, but I listen to them sometimes

    4. Re:Caveat Emptor by novikov · · Score: 0

      The thing that makes the speeding and DUI fines enforcable is not the title to your car. It is the drivers license. I purchase my car, and the drivers license gives me the right to use it on public roads. Once I have paid off the loan (not through the government) I recieve the title for my car from the loan holder. Purchasing a car is very similar to purchasing a house, you are paying for a product, not the right to use it. When you no longer want to use it you can sell it because it is yours. The government has certain criteria that the car must meet before it can be sold, however they are not the owners of the car. The title is proof of that, if I have the title and someone takes my car without my permission and knowledge it is called theft. At that point the title proves ownership, I have the title and it is in my name, therefore the car is mine, not whoever took it. The drivers license is the goverment tool for tracking who has broken the estabilished laws on the governments road system (I can not get a ticket for speeding in my own driveway, only on publicly owned roads). The only way that the government can take my car away is if I break the law on their road system, and that does not apply to every offense. In addition they also have to provide a way for me to retrieve the vehicle in the case that they do take possesion (with the exception of legally siezed possesions in something along the lines of a drug bust of theft ring bust).

      Sorry about the length but we do own our vehicles, just like we do our homes, if they are still being payed for there are restrictions on how you sell them, typically any procedes from the sale must go toward paying off the debt before you see any of the money from the sale of the item.

    5. Re:Caveat Emptor by charon_on_acheron · · Score: 2, Informative

      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.

  11. Cause you never buy anything... by augustz · · Score: 2

    You only ever buy a license, never a product. That's always buried in the fine print somewhere, and is the difference that let's them restrict use 6 ways to sunday.

    1. Re:Cause you never buy anything... by Sloppy · · Score: 2

      So what if it's in the fine print? The fine print is never used in the actual transaction. I was never asked to sign anything prior to receiving the product.

      If I go to the corner bookstore, I can buy both books and software at the same place at the same time. There is no disinction made between them at the time of sale. I own that copy of the book and am allowed to resell it. No words printed inside the book (whether they are large print or fine print) are capable of changing that fact. The software purchase works identically.

      --
      As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
  12. How long before... by jmv · · Score: 2

    You end up licensing your dishwasher

    Your hamburger comes with an EULA

    1. Re:How long before... by Anonymous Coward · · Score: 0

      You license your food:)

    2. Re:How long before... by jmv · · Score: 2

      Warning: under the DMCA it is illegal to reverse-engineer (or play with) your OREO cookies!

    3. Re:How long before... by Anonymous Coward · · Score: 0

      Hamburgers are leased from Mother Earth. Its a rather short lease, no one gets to keep their burger!

  13. In Germany you are allowed to do this. by tjansen · · Score: 4, Informative

    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...

    1. Re:In Germany you are allowed to do this. by Masturbating+Vulcan · · Score: 4, Insightful

      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!!!!!!!!!!!!!!!
    2. Re:In Germany you are allowed to do this. by Teun · · Score: 3, Informative

      And in The Netherlands.
      Though I'm not absolutely sure about the latest licences, courts have in the past upheld that the licence in effect is nothing more than the right of the owner to run / use a single copy of the software at your own discretion.
      Anything else was considered frivolous.
      This means for instance that when you've bought a computer with a Dutch version of Windows there is nothing stopping you replacing it with a copied / borrowed English version. Because you do own a licence to run Windows.
      And the courts have clearly seen no tangible difference between the various language versions.

      --
      "The likes of Facebook and WhatsApp are free to those whose privacy is of zero value."
    3. Re:In Germany you are allowed to do this. by Anonymous Coward · · Score: 0

      Good catch on the DMCA cite. The law that would help MS (or other software companies) uphold non-transferability of software licenses would be UCITA. I'm not sure how many states have passed UCITA at this point.

  14. Here is why by 13013dobbs · · Score: -1, Redundant

    What is so special about software (and their licenses), that allows it to avoid the protections consumers enjoy from more tangible products?
    You can make a copy of it, that is why.

    --

    No replies made to AC posts. Please log in.

    1. Re:Here is why by Anonymous Coward · · Score: 0

      You mean like CD, VCR tapes and DVDs, which you can buy/sell for now?

  15. hmm... by Subliminal+Fusion · · Score: 1

    What's next? Microsoft goes after Best Buy/Circuit City/CompUSA/etc. for violating their licenses?

  16. Oh my god by Anonymous Coward · · Score: 0

    Deus Meus! Securis in capite meo est.

  17. Lots of good points here... by Anonymous Coward · · Score: 1, Interesting

    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?

    1. Re:Lots of good points here... by Killer1nstinct · · Score: 0

      Whats the license say on the movies and cds? Dont believe there is anything to the affect of 'you may not redistribute for any value, PERIOD.'

  18. well... by Bjarke+Roune · · Score: 1

    If a shop required you to sign a contract prior to purchase that said you could not sell your new property, is that evil? I do not see how, though of course I'm not sure I'd be all that interested in buying stuff in that shop.

    1. Re:well... by Anonymous Coward · · Score: 0

      Yes, because of course, that contract would completely screw you. You would not be able to give it away legally. The only legal thing you could do with it would be to destroy it, and somehow provide proof to the company.

      My feeling is that if the company is THAT concerned about it, it should reward me positively with honoring such a commitment, rather than non-negatively.

      Because you know that if it broke, you'd be SOL as well, and would have to buy a new one...

      Head like a hole...

  19. Legality doesn't matter by swordgeek · · Score: 5, Insightful

    "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
    1. Re:Legality doesn't matter by Anonymous+Brave+Guy · · Score: 2
      "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."

      Surely the question is whether you're prepared to risk having MS take you to court for licence infringement? At the moment, clearly they are, if they think it's worth it. Until someone rules that unreasonable licence conditions are uncontestably illegal, it will stay that way.

      By the way, that's "unreasonable" as in "You have to agree to something you haven't yet seen", not as in "I can't afford this, so I think I should be allowed to rip it off at others' expense".

      --
      If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
  20. If cars were like software... by Anonymous Coward · · Score: 0

    I'd buy a Porsche, install a copy in my garage, then sell the original. Get it now?

  21. Ahhhh by drodver · · Score: 3, Funny

    So that explains why I feel so dirty after buying software!

  22. software AND licenses? by frknfrk · · Score: 2

    you seem to be missing the point. you are licensing the software, not buying it. it is a strange world, when you pay someone money and they ship you a physical thing, yet you do not own that thing, you own a license to use that thing.

    i was going to ask 'imagine if computer hardware was the same way' and then i immediately realised we are definately moving in that direction. ditto for televisions, etc, anything which can access digital media.

    zero-cost duplication is a beautiful thing. too bad it would destroy most 'modern' companies ability to function.

    remember when 'modern' meant something like 'forward-thinking'? now it seems to mean the opposite. the modern age is over. something else is here, and it may be a dark age of information if these 'modern' companies are able to hold onto the past as well as they are trying to.

    -sam

    --
    The REAL sam_at_caveman_dot_org is user ID 13833.
    1. Re:software AND licenses? by S.Lemmon · · Score: 5, Insightful

      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.

    2. Re:software AND licenses? by chinakow · · Score: 1

      actually this is known as a lease and people do do that kind of thing with cars and at one point that was the only way to get an IBM mainfraim, they did not off the customer the ability to purchase a server they had to lease it until the US gov started looking into a antitrust case.

      Jon

    3. Re:software AND licenses? by innocent_white_lamb · · Score: 1

      it is a strange world, when you pay someone money and they ship you a physical thing, yet you do not own that thing, you own a license to use that thing. ----> Well, yes, it's done all the time. I could rent or lease a popcorn machine from a food service company and they will ship it to me and I can install and use it on my concession stand. When the terms of the lease are up, I either renew the lease or return the machine. I can't resell it to someone else who happens to need a popcorn machine because it was never mine in the first place. And that's a physical object that you can reach out and touch and so on.

      The major differences between this and software that I see are that (a) the popcorn machine in this case is very clearly leased. There is no doubt or question in the mind of the food service company or in my mind when we make the deal. We're not discussing the sale of the machine, just a limited-term lease. As another poster stated, mass-distribution software is by and large sold like books. A box on the shelf. Fork over the money, take your box home with you. Which leads me to (b), there is no "meeting of minds" involved in mass-market software purchases. I can negotiate with the food service company (or a landlord if I'm renting property) if I want to, and we can either agree on terms or not. I don't get a chance or opportunity to negotiate with anyone before I "purchase" software.

      --
      If you're a zombie and you know it, bite your friend!
    4. Re:software AND licenses? by sheldon · · Score: 2

      Peasants of old were tied to the land because they had to accept the bargain or go hungry and die.

      Are you saying that if you don't listen to NSync while playing Quake you are going to die?

    5. Re:software AND licenses? by GospelHead821 · · Score: 1

      Hrrm...This sort of sounds familiar to me. If anybody's ever played Civilzation: Call to Power, this ought to sound remarkably like the Corporate Republic in which private, commercial entities oversee the functions that the government currently oversees. That can really make one wonder what MS could do (for good or for ill) if its influence begins to extend into matters that don't concern them directly, but which they think would be useful to control.

      --
      Virtue finds and chooses the mean.
      Aristotle, Ethica Nichomachea
    6. Re:software AND licenses? by (void*) · · Score: 2

      If you had to use software X at work, and not using X means no work, and no food, yes.

    7. Re:software AND licenses? by HiThere · · Score: 2

      And this is why the GPL and associated licenses are so important.

      --

      I think we've pushed this "anyone can grow up to be president" thing too far.
    8. Re:software AND licenses? by Anonymous Coward · · Score: 0

      Fortunately I don't have to use X11 at work.

  23. doctrine of first sale by _|()|\| · · Score: 5, Informative
    You want to research the doctrine of first sale. A turn-of-the-century court case involving, essentially, EULAs in books established that a consumer has the right to transfer, in whole, a book, notwithstanding any statement to contrary by the vendor or manufacturer.

    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.

    1. Re:doctrine of first sale by Anonymous Coward · · Score: 0

      UCITA like DMCA is illegal and anti-constitutional because they don't respect jurisditions and other base constitutions laws (like 1st ammendment and more)...

      And most EULAs are also void of validity...

    2. Re:doctrine of first sale by bigdavex · · Score: 5, Informative
      Yes, it's been codified. The question, as others have pointed out, is whether of not the person owns the copy or just a liscense.
      This, I believe, is the applicable US law.

      U.S. Code, title 17, chapter, section 109:


      US Code as of: 01/23/00

      Sec. 109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord

      (a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. Notwithstanding the preceding sentence, copies or phonorecords of works subject to restored copyright under section 104A that are manufactured before the date of restoration of copyright or, with respect to reliance parties, before publication or service of notice under section 104A(e), may be sold or otherwise disposed of without the authorization of the owner of the restored copyright for purposes of direct or indirect commercial advantage only during the 12-month period beginning on -
      (1) the date of the publication in the Federal Register of the
      notice of intent filed with the Copyright Office under section
      104A(d)(2)(A), or
      (2) the date of the receipt of actual notice served under
      section 104A(d)(2)(B), whichever occurs first.
      (b)
      (1)
      (A) Notwithstanding the provisions of subsection (a), unless authorized by the owners of copyright in the sound recording or the owner of copyright in a computer program (including any tape, disk, or other medium embodying such program), and in the case of a sound recording in the musical works embodied therein, neither the owner of a particular phonorecord nor any person in possession of a particular copy of a computer program (including any tape, disk, or other medium embodying such program), may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord or computer program (including any tape, disk, or other medium embodying such program) by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending. Nothing in the preceding sentence shall apply to the rental, lease, or lending of a phonorecord for nonprofit purposes by a nonprofit library or nonprofit educational institution. The transfer of possession of a lawfully made copy of a computer program by a nonprofit educational institution to another nonprofit educational institution or to faculty, staff, and students does not constitute rental, lease, or lending for direct or indirect commercial purposes under this subsection.
      (B) This subsection does not apply to -
      (i) a computer program which is embodied in a machine or
      product and which cannot be copied during the ordinary operation
      or use of the machine or product; or
      (ii) a computer program embodied in or used in conjunction with
      a limited purpose computer that is designed for playing video
      games and may be designed for other purposes.
      (C) Nothing in this subsection affects any provision of chapter 9 of this title.
      (2)
      (A) Nothing in this subsection shall apply to the lending of a computer program for nonprofit purposes by a nonprofit library, if each copy of a computer program which is lent by such library has affixed to the packaging containing the program a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.
      (B) Not later than three years after the date of the enactment of the Computer Software Rental Amendments Act of 1990, and at such times thereafter as the Register of Copyrights considers appropriate, the Register of Copyrights, after consultation with representatives of copyright owners and librarians, shall submit to the Congress a report stating whether this paragraph has achieved its intended purpose of maintaining the integrity of the copyright system while providing nonprofit libraries the capability to fulfill their function. Such report shall advise the Congress as to any information or recommendations that the Register of Copyrights considers necessary to carry out the purposes of this subsection.
      (3) Nothing in this subsection shall affect any provision of the antitrust laws. For purposes of the preceding sentence, ''antitrust laws'' has the meaning given that term in the first section of the Clayton Act and includes section 5 of the Federal Trade Commission Act to the extent that section relates to unfair methods of competition.
      (4) Any person who distributes a phonorecord or a copy of a computer program (including any tape, disk, or other medium embodying such program) in violation of paragraph (1) is an infringer of copyright under section 501 of this title and is subject to the remedies set forth in sections 502, 503, 504, 505, and 509. Such violation shall not be a criminal offense under section 506 or cause such person to be subject to the criminal penalties set forth in section 2319 of title 18.
      (c) Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.
      (d) The privileges prescribed by subsections (a) and (c) do not, unless authorized by the copyright owner, extend to any person who has acquired possession of the copy or phonorecord from the copyright owner, by rental, lease, loan, or otherwise, without acquiring ownership of it.
      (e) Notwithstanding the provisions of sections 106(4) and 106(5), in the case of an electronic audiovisual game intended for use in coin-operated equipment, the owner of a particular copy of such a game lawfully made under this title, is entitled, without the authority of the copyright owner of the game, to publicly perform or display that game in coin-operated equipment, except that this subsection shall not apply to any work of authorship embodied in the audiovisual game if the copyright owner of the electronic audiovisual game is not also the copyright owner of the work of authorship.
      --
      -Dave
    3. Re:doctrine of first sale by Saurentine · · Score: 1
      You want to research the doctrine of first sale. A turn-of-the-century court case involving, essentially, EULAs in books established that a consumer has the right to transfer, in whole, a book, notwithstanding any statement to contrary by the vendor or manufacturer.


      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.



      UCITA has not been passed into law at the federal level. UCITA has not been passed into law in most areas of the United States.



      Only a small number of states have surrendered their citizen's right to know what is in a contract before agreeing to it.



      Only a small number of states consider tearing away a thin plastic skin from a cardboard box the legal equivalent of reading, contemplating, and signing a contract contained within the box.

    4. Re:doctrine of first sale by aozilla · · Score: 2

      UCITA like DMCA is illegal and anti-constitutional because they don't respect jurisditions and other base constitutions laws (like 1st ammendment and more)...

      UCITA is state law. The constitution has very very few restrictions upon state law. The first ammendment is completely irrelevant anyway, because no state government is restraining free speech (you'd want to base it on the 14th ammendment, anyway, since the 1st ammendment does not apply to states, only to congress, except through the 14th ammendment's partial incorporation).

      --
      ok then your [sic] infringing on my copyright! Could you as [sic] me next time before STEALING my comments for your own?
    5. Re:doctrine of first sale by aozilla · · Score: 2

      This, I believe, is the applicable US law.

      IANAL, but I still guarantee you you are allowed to resell software under the first sale doctrine, as far as federal law is concerned. The problem is that contracts are generally governed by state law, and if an EULA is deemed to be a binding contract, you can still be sued under breach of contract (not copyright law). There are many many caveats though, not the least of which is that states cannot make their own copyright law, because the federal government has the exclusive right to make copyright law. If the states decide to try to enforce this is will be a long and hard battle. If the federal government tries to enforce it it'll be an open and shut case, and Microsoft will lose.

      --
      ok then your [sic] infringing on my copyright! Could you as [sic] me next time before STEALING my comments for your own?
    6. Re:doctrine of first sale by Arandir · · Score: 2

      The question, as others have pointed out, is whether of not the person owns the copy or just a liscense.

      In that case it depends upon how to aquired the software. If you signed a contract *before* Microsoft gave it to you, then you have purchased a license to use their software. BUT - If you walk into a store, buy a shrink wrap box and purchase it from a retailer, then the US Commercial Code considers you the legal owner of the copy.

      If M$ is claiming that you have only licensed the use of the software, then let's see their signature on the lease agreement.

      --
      A Government Is a Body of People, Usually Notably Ungoverned
    7. Re:doctrine of first sale by Anonymous Coward · · Score: 0

      The copyright act preempts state law with respect the subject matter of the act--therefore the 1st sale doctrine applies.

    8. Re:doctrine of first sale by Anonymous Coward · · Score: 0

      The copyright act preempts state law with respect the subject matter of the act

      True, but the state is going to argue that it is not enforcing copyright law, it is enforcing contract law. All in all it's a tough argument and I could see it go either way.

    9. Re:doctrine of first sale by re-geeked · · Score: 2

      It looks like the applicable law, but it seems to specifically exempt software and music from sublease rights, in 109.b.1.A:

      ...unless authorized by .. the owner of copyright in a computer program .., neither the owner of .. nor any person in possession of a particular copy of a computer program .. may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that .. computer program .. by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending.

      Does that negate resale rights as well?

      Also, it appears this paragraph was a later revision. Anyone know when?

      I find the whole discussion somewhat mooted by the fact the proprietary software companies push upgrades fast enough to make old versions of the software almost valueless. I suppose it could matter to those who pay the MS tax, and don't want to pursue a refund.

      Although, for my money, the above provision is wrong, and I'd like to see right of resale maintained for all copyrighted work if only to maintain the original, limited, intent of the law.

      --
      "You can't get something for nothing." - my grandfather, on the stock market and Reaganomics.
    10. Re:doctrine of first sale by markt4 · · Score: 1

      Areas that are not covered by the US Constitution are construed to be left to the states to decide. However, the US Constitution does specifically grant to Congress the power to regulate copyrights and interstate commerce. Unless Microsoft, or whoever else, is granting the software licenses through their Virginia or Maryland subsidiaries, their licensing falls under the conduct of interstate commerce.

    11. Re:doctrine of first sale by Anonymous Coward · · Score: 0
      No, it only restricts commercial rental. This was a special deal that the record companies got Congress to carve out of the First Sale Doctrine a decade or so back, essentially to shut down shops that rented LPs and sold blank cassettes. I believe it also applies to software rental, but not to video game cartridge software rental.

      So we get the result that Mom and Pop can set up a video rental shop without Hollywood's permission and it is perfectly legal (this is, in fact, how the video rental business got started). Let Mom and Pop do the same thing with CDs without the RIAA member's approval (which won't be forthcoming), and they get fined or go to prison. Neat, huh?

    12. Re:doctrine of first sale by wickidpisa · · Score: 1

      The first amendment most certainly does apply to the states, as does the rest of the bill of rights. Read the 14th amendment. (OK, you probably won't find it there either, but the courts have decided that the 14th amendment applys the bill of rights to the states as well)

    13. Re:doctrine of first sale by aozilla · · Score: 1

      which is why I said except through the 14th ammendment's partial incorporation

      --
      ok then your [sic] infringing on my copyright! Could you as [sic] me next time before STEALING my comments for your own?
    14. Re:doctrine of first sale by jaoswald · · Score: 1

      Look carefully

      1) rental
      2) lease
      3) lending

      Anything else?

  24. wasn't always like this by netwiz · · Score: 1

    I remember when the EULA included transfer-of-license clauses, such that As long as you deleted all your installed copies and transferred the legal license document along with the software, it was fine and good to sell your license to someone else. In fact, this used to be a big part of the MS license. I think at the time, they were attempting to play nice with the First Sale doctrine, although that seems to have been thrown out the window along w/ everything else.

  25. easy way around it by ArchieBunker · · Score: -1

    Ever see those guys on ebay that buy like 50 dead hard drives for a few bucks? Well you sell one of those drives with an OEM win2k cd or OEM anything and it meets the license requirements.

    --
    Only the State obtains its revenue by coercion. - Murray Rothbard
  26. Car Leasing by wiredog · · Score: 3, Insightful
    No one would own (or lease) a car if the contract said, "You must not sell this car

    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.

    1. Re:Car Leasing by Anonymous Coward · · Score: 1, Informative
      If you sold a car you were leasing you would be tossed in jail for grand theft auto

      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.

    2. Re:Car Leasing by Anonymous Coward · · Score: 0

      Too bad no state I know of will allow you to transfer the title of the car without the actual owner's consent.

    3. Re:Car Leasing by Anonymous Coward · · Score: 0
      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.



      Gee, that's funny, cause I've done it several times and haven't been to jail yet. Let me guess- you've never leased a car, have you?

    4. Re:Car Leasing by Anonymous Coward · · Score: 0

      Realizing I'm an anonymous coward and so no one will read this post, here's what my take has always been on software licenses applied to the car analogy.

      I go to a car dealership. I see a number of different cars and decide to buy one. I plunk down the cash and get in the car that I just bought. When I turn on the car, before the engine turns over, a little document pops up and says, "Oh by the way, you didn't buy this car, you bought a lease to this car. If you don't like it you can go back to the car dealer and get a full refund. But by proceeding with ignition you implicitly agree to this license."

      So I go to the car dealer and tell him that I don't like the license and want to get a refund. He says, "Certainly, ma'am. But I just want to let you know that no matter what other car you decide to buy, here or anywhere else, it will still have a license just like the one you saw in that last car."

      Now, what do I do? Tell him to forget it, that I'll walk? Well, that doesn't work well in a lot of places becaue of bad neighborhoods, long distances, and general inconvenience. So I turn the car on, implicitly agreeing to the license, and drive off and hope that doesn't come back to haunt me.

      But the real issue is that most people don't really see or think about the license when they turn their car on, and they only see it after they just bought it. Then, a few years later, some guy will get a newer model and sell his old car to someone else. That's when Microsoft comes down and says, "You can't do that! You were only leasing the car from us, and the lease says that you can't sell it."

      At this point the guy says, "What do you mean? I bought the car from the dealership. Where was the license? If you were leasing it to me, why did it feel like a purchase? Why didn't the initial contract I signed at the dealership say anything about a lease? Why wasn't it advertised as a leasing thing instead of a purchasing thing?!"

      And I agree with that guy, why is it only obvious you're leasing software after you've taken it home, opened it up, and started installing it on your computer?

    5. Re:Car Leasing by Oliver+Wendell+Jones · · Score: 1

      The difference between a lease and a license is that at the end of the lease, you have to give it back.

      As far as I know, there is no expiration date on the shrink wrap licenses that would require you turn ownership of the license back to the provider.

      --
      A computer once beat me at chess, but it was no match for me at kick boxing -- Emo Phillips
    6. Re:Car Leasing by Anonymous Coward · · Score: 1, Insightful

      Courts have often found "perpetual leases" to actually be sales. That's why sometimes a piece of land will be leased for 99 years -- to keep the transaction from being considered a sale.

      Back in the 1970s, the movie studios tried to go after film collectors who owned 16mm prints of hollywood movies. The studios claimed that all existing prints were their property, because the prints were only leased to the television stations, not sold. The collectors produced documentation from the television stations that stated that the films had been "leased for the life of the print." The judge determined that a perpetual lease constituted a sale, and that the film prints were subject to the first sale doctrine, meaning that the studios had lost the right to prevent resale of those film prints.

    7. Re:Car Leasing by zerocool^ · · Score: 2

      what really throws a wrench into the mix is Tow Trucks.

      If you do something wrong, like place your car in the incorrect parking lot, the tow company will legally steal it. Isn't this where we're going with windows XP? Install it in the wrong place and they'll make it so it wont work, or something.

      I'm not sure exactly how it figures in, but there you go.

      --
      sig?
  27. Taking sides by Grape+Shasta · · Score: 2, Insightful
    Why are there so many laws (i.e. DCMA) to protect every imaginable right for these big content creation companies? Like they need the help to make billions of dollars. What I would love to see is a new law to protect the consumers, not the companies. Something that enforces common sense, like in this case: If you buy the right to use software, then you can sell at least your one copy of the software. The big companies should not have the right to put all sorts of weird restrictions on us because they feel like it.

    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
    1. Re:Taking sides by jimhill · · Score: 2

      Because the big content creation companies bought the laws. It really is that simple. Through the system of soft money and campaign contributions, bribery -- for I shall forthwith commit myself to the practice of calling a spade a spade -- is an established part of "the system", a filthy and disgusting act that all acknowledge and few resist. If you dislike the DMCA, if you _really_ want to see it gone, there is exactly one thing you can do: raise more money than the IP industry and buy its repeal.

      Yes, I _have_ lost all faith. Why do you ask?

      --
      Learn to spell: nickel, missile, lose, solely, amendment, speech, kernel, probably, ridiculous, deity, hierarchy, versus
    2. Re:Taking sides by Anonymous Coward · · Score: 0

      Yes, I _have_ lost all faith

      Seriously, you should calm down and stop worrying. Eat some seconal, smoke some grass, drop some acid, whatever. I promise you'll be happier.

    3. Re:Taking sides by Anonymous Coward · · Score: 0

      How can one be happier when the truth is as ugly as ever? Willfull blindness to the truth would be pathetic if it weren't so self-inflicted.

  28. You never buy software by Anonymous Coward · · Score: 1, Interesting

    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.

    1. Re:You never buy software by aphor · · Score: 1

      Well, there are other laws to protect consumers in your situation:

      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...
      This is called false advertising, and the publisher can be held criminally liable. If the publisher printed the packaging in another state, the crime is a federal violation.

      Go get yourself a bunch of co-plaintiffs (ie. anyone else who got bitten like you) on a list and take the list shopping for lawyers. Lawyers love cases with lots of co-defendants racking up damages against a corporate entity that can be fleeced with prejudice for such easy-to-prove missteps.

      --
      --- Nothing clever here: move along now...
    2. Re:You never buy software by atheos · · Score: 1

      Ya,
      we consumers have all the time in the world to fight cooperations every time we get lied to, or screwed by a company.
      bullshit.
      call a laywer and tell him about your game that doesn't run. If he doesn't laugh, he may tell you how much his retainer will cost.

    3. Re:You never buy software by aphor · · Score: 1

      YOU can just take it how you like it.

      The thing is, you have to follow the money. Lawyers get PAID prosecuting big offenders. You need to have a good case (ie. a jury could tell that the packaging is lies) and you need to have enough total damages at stake to get the lawyers' interest, and you need to be going after someone who has enough cash that awards will be paid for at the judgement.

      If you don't have all those three things, you are screwed, but you screw yourself when you have all the necessaries and still take it lying down. In that case, I have some nice swampland in Florida....

      --
      --- Nothing clever here: move along now...
    4. Re:You never buy software by blang · · Score: 2
      This is not unusual for special-purpose professional software, where the customer is still important enough to have a say in the contract.
      The last phase of a sale is the legal departments of the buyer and seller working out the contract. The contract covers how the software must perform, what kind of support you get, size of penalties if software or patches are delivered late. How the parties may break the contract. It is even usual to have a clause about escrow. A third party keeps the source code in escrow, so that the customer receives the source code if the seller fails to honor the support agreements or goes out of business.


      When you buy a shrink wrapped software package, the contract is one-sided, and somehow Microsoft is able to do that even against the largest corporations. That's why it's called a monopoly. These large organisations are hostages of Microsoft, and must pay whichever price is asked.


      They don't even have the guts to challenge MS contracts, since anything that hurts Microsoft may eventually hurt the quality of a product that they depend on.

      --
      -- Another senseless waste of fine bytes.
    5. Re:You never buy software by Anonymous Coward · · Score: 0

      It's Christmas time. YOu open your gifts. You decide you want to give away that fine pair of socks that your grandmother gave you, because you already have 5 pair just like it. So you do, and then you find out your grandmother is royally pissed off at you for doing this, and has not only written you out of the will, but your father/mother.

      Like hell I can't transfer it...

  29. You have to copy software to use it. by Dr.+Zowie · · Score: 5, Informative
    The legal basis for restrictive EULAs is that you have to make a copy of the software (in your computer's RAM) in order to use it. Copying is prohibited without explicit permission, and so, therefore, is use. Therefore the companies can ask you to sign whatever argument they want before allowing you to use the software. If the license is non-transferable then, sure, you can sell the source CD for the software -- but the poor schnook who buys it from you doesn't have a license to copy it, so he can't use it.

    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.

    1. Re:You have to copy software to use it. by ceswiedler · · Score: 2

      Books are copied before they are used, as well. In order to actually read a book, I have to shine a light on it, which throws a "copy" of the current page in the form of photons towards my eyes.

      Copying isn't copying if the data isn't rewritten to a different permanent medium than the original.

    2. Re:You have to copy software to use it. by briansmith · · Score: 1

      The legal basis for restrictive EULAs is that you have to make a copy of the software (in your computer's RAM) in order to use it.

      I don't buy this. A music CD player has to copy part of a song into memory (mine copies 40 seconds, for example) but you can still sell your old CD's, even in retail used CD stores. I believe that the need to copy the software into memory is just part of the implementation of the mechanics of the device used to "play" the software and doesn't have any bearing on the licensing issues.

    3. Re:You have to copy software to use it. by Anonymous Coward · · Score: 0

      beautiful - brilliant

    4. Re:You have to copy software to use it. by sadr · · Score: 1

      While you're certainly correct in terms of physics, the courts have ruled as the original poster indicated. RAM is a copy.

      They have not ruled that photons are a copy.

      Sorry, but that's the current legal system in the US of A. God Bless America.

      It's absurd. It also means that using software in excess of the license makes you a felon. (Making copies of software worth more than $5000 is a felony. Each copy into RAM in excess of your license is a copy for purposes of the statute.)

      This means that using Frontpage (see recent Slashdot story) in excess of the license more than 10 or 20 times is a felony. e.g. Criticizing Microsoft with their own software is a felony.

      It's WAAAYYYY past time to get the laws about computer programs changed. My first suggestion is that to register the copyright on a computer program, the entire source must be provided to the library of congress.

    5. Re:You have to copy software to use it. by DavidTC · · Score: 1

      You mean this:
      Sec. 117. Limitations on exclusive rights: Computer programs

      (a) Making of Additional Copy or Adaptation by Owner of Copy. - Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
      (1) that such a new copy or adaptation is created as an
      essential step in the utilization of the computer program in
      conjunction with a machine and that it is used in no other
      manner, or
      (2) that such new copy or adaptation is for archival purposes
      only and that all archival copies are destroyed in the event that
      continued possession of the computer program should cease to be
      rightful.

      That's at http://www4.law.cornell.edu/uscode/17/117.html
      It's perfectly legal to copy computer programs into memory to use them without a license. I have no idea how the court possible ruled copying things into memory was a violation of copyright law, escpecially give it goes on to say:

      (c) Machine Maintenance or Repair. - Notwithstanding the provisions of section 106, it is not an infringement for the owner or lessee of a machine to make or authorize the making of a copy of a computer program if such copy is made solely by virtue of the activation of a machine that lawfully contains an authorized copy of the computer program, for purposes only of maintenance or repair of that machine, if -
      (1) such new copy is used in no other manner and is destroyed
      immediately after the maintenance or repair is completed; and
      (2) with respect to any computer program or part thereof that
      is not necessary for that machine to be activated, such program
      or part thereof is not accessed or used other than to make such
      new copy by virtue of the activation of the machine.

      This seems to apply also. I don't understand this case ruling, unless this law was passed after it.

      --
      If corporations are people, aren't stockholders guilty of slavery?
    6. Re:You have to copy software to use it. by Anonymous Coward · · Score: 0

      mod the parent up

    7. Re:You have to copy software to use it. by Anonymous Coward · · Score: 0

      If the license is non-transferable then, sure, you can sell the source CD for the software -- but the poor schnook who buys it from you doesn't have a license to copy it, so he can't use it.

      From your link:
      Section 117 allows "the 'owner' of a copy of a computer program to make or authorize the making of another copy" without infringing copyright law, if it "is an essential step in the utilization of the computer program"
    8. Re:You have to copy software to use it. by carlos_benj · · Score: 1
      The legal basis for restrictive EULAs is that you have to make a copy of the software (in your computer's RAM) in order to use it.


      Well, dang! If it's just the copy in RAM that's the problem, cycle power on the machine!
      --

      --

      As a matter of fact, I am a lawyer. But I play an actor on TV.

    9. Re:You have to copy software to use it. by tlk+nnr · · Score: 1
      The legal basis for restrictive EULAs is that you have to make a copy of the software (in your computer's RAM) in order to use it. Copying is prohibited without explicit permission, and so, therefore, is use.

      And if you read a book you must make a copy of the letters on your retina.
      Let's wait until you must agree to an EULA before you open a book.

      I'm aware that the "copy into RAM" is the legal reasoning why you need a license for using computer software, but nevertheless it is ridiculous. (i.e. it only works if you have much more money that the person who makes the copy.)

    10. Re:You have to copy software to use it. by FreeUser · · Score: 2

      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.

      You are, unfortunately, correct. However, one should seriously consider the implications of this relatively new, and terribly misguided, doctrine.

      The human brain is essentially a biological computer. In order to comprehend a book, it must first be "read," i.e. the content of book must be copied into the person's brain before it can be interpreted ("understood"). So, essentially, by the logic of our modern justice system (which has its collective intellect buried so far up its own posterior as to make any rational decisions with anything but the most negative effects on real human beings' lives virtually impossible) anything that can be read or comprehended could be subject to such a EULA by an absurd legal loophole which accomplishes exactly the opposite of what the laws, particularly the doctrine of First Sale, intended.

      Someone truly needs to bitchslap the people making, arguing, and interpreting our laws. Hard.

      --
      The Future of Human Evolution: Autonomy
    11. Re:You have to copy software to use it. by spitz23 · · Score: 1

      You are very correct. This law allows what the MAI court did not. It was passed after the MAI decision, pretty much to cover the copying to RAM issue. It didn't make sense to Congress that a RAM copy would be illegal, since you can't use software w/o copying it to RAM.

      So, what was the name of the law that fixed this big problem? Ah, yes.. the DCMA.

      And in case I get an anti-DCMA person flaming me: the DCMA is a whole bunch of corrections to copyright law, some good, some horrible. When the time comes, the supreme court can throw out the horrible parts while keeping the good ones.

      -Alfred

      --
      ---- Alfred Jr.
    12. Re:You have to copy software to use it. by valdis · · Score: 1
      The legal basis for restrictive EULAs is that you have to make a copy of the software (in your computer's RAM) in order to use it. Copying is prohibited without explicit permission, and so, therefore, is use.

      However, 17 USC 117 (a) specifically says:

      * (a) Making of Additional Copy or Adaptation by Owner of Copy. - Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: * (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or * (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

      Basically, (1) says that the copy in RAM you need to RUN it is legal, and (2) your backups are legal. As a result, you don't need to agree to anything else in order to do either of these, so that's not a good legal basis for an EULA.

    13. Re:You have to copy software to use it. by Anonymous Coward · · Score: 0

      [In regards to the MAI v. Peak case]

      One could argue that the copy in RAM is NOT FIXED because it IS only a TRANSITORY copy:

      "A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration."

      Isn't this one of the well known facts about RAM is that it is temporary. Looking at the definition of transitory is given as "Existing or lasting only a short time; short-lived or TEMPORARY". Well, dictionary.com also gives example usages such as "the transitory light of a comet". Surely if light from a comet is considered to be "transitory", a copy of software in RAM would surely be transitory.

      The fact that copy of the program is around long enough "to be perceived, reproduced, or otherwise communicated" does not mean it's not transitory. The light from a comet is around long enough to be "perceived", yet it is NOT transitory; IT IS NOT FIXED!

      .

      On a different note, the case quotes this exception to the Copyright Law:

      [Section] 117 of the Copyright Act... allows "the 'owner' of a copy of a computer program to make or authorize the making of another copy" without infringing copyright law, if it "is an essential step in the utilization of the computer program"

      Does this mean that Peak Computer did not even OWN a copy of the software (OS)?

      ...or could they be charged with copyright infringment because they BOOTED the ALREADY INSTALLED OPERATING SYSTEM???

      What if they could claim they were "using" the software on the owner's behalf?

  30. What bout music? by a42 · · Score: 2

    The DMCA and UCITA have given software licenses some bite where before they were nothing but bark. I fully expect to see a great deal more of this sort of thing.

    Buying software is more like buying a music CD/record/tape/etc. than it is like buying a car. You are buying the *right* to use the IP in a limited way. The difference is that the record companies have not yet managed to prohibit reselling of their media. Give them time.

    --john

    1. Re:What bout music? by DavidTC · · Score: 1
      Erm, no, you're noting buying any 'rights' when you buy music, and I'm getting sick of hearing people say that. You've been completely brainwashed by content providers.

      You'e buying something that you can do pretty much anything with. There is no license on music. The important thing to remember is that, under copyright law, you can't make a copy of it under certain circumstances. This is a law, not a license, and it applies to everyone in existence (in the US) and all property that falls under copyright law.

      It's like you buy a Ford that says you can't use non-Ford parts in it, and comparing that to not being able to drive backwards down a one way street. One of them is a law, that we as society have decided is a good idea, and the other is just Ford trying to make extra money.

      --
      If corporations are people, aren't stockholders guilty of slavery?
    2. Re:What bout music? by a42 · · Score: 2
      You'e buying something that you can do pretty much anything with. There is no license on music.

      Not exactly true. I'm prohibited, for example, from public performance of the music. I'm not allowed to broadcast it via radio. License, law, whatever the fact remains that you do NOT own the music or the software. You own the medium and the right to do certain things with the content.

      --john

    3. Re:What bout music? by DavidTC · · Score: 1
      Wrong wrong wrong. You have bought a copy of the music. Period, no exceptions. You own a copy of the copyrighted work. It's exactly the same as owning anything else.

      Due to the material on your copy being copyrighted, you cannot do certain things with regard to copying the music, just like you cannot discharge firearms near a road. That doesn't make you not 'own' the firearm or the bullets.

      The government sets restrictions on how we can use certain things. That doesn't make us not own those things, it makes certain uses prohibited. As an extreme example, you can't legally use anything to kill someone, yet I own many knifes that can do just that.

      --
      If corporations are people, aren't stockholders guilty of slavery?
  31. the revolution will not be televised by frknfrk · · Score: 2

    it depends on joe sixpack. i would offer the idea that the average 'joe sixpack' wouldn't read the note. and even assuming the note was big and bold and could not be missed, i would offer that he would not read it. and even if he read it, he probably would ignore it. and even if he didn't ignore it, he probably wouldn't understand the ramifications of it. and even if he understood all that, more than likely he wouldn't care. he just wants the stereo to listen to his MPAA and RIAA productions.

    -sam

    --
    The REAL sam_at_caveman_dot_org is user ID 13833.
  32. License to drive by delfstrom · · Score: 1
    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?

    I have a license to drive a car. I cannot possibly transfer my license to another driver.

    1. Re:License to drive by tycage · · Score: 2

      I have a license to drive a car. I cannot possibly transfer my license to another driver.

      You have a license to drive any car. (Actually, there are some restrictions, but it's basically the case.) That's very different from having a license to drive a 2001 Saturn SL2 with the serial number 0391948409402028. With a drivers license you can drive pretty much any car you come across. The assumption being that you will either own the car or have permission from the owner to drive it.

      A software license is really closer to leasing a car. If you sold a car that you had leased, you'd be in big trouble as well. I'm not saying it's right for software to be that way, only that it is.

      --Ty

    2. Re:License to drive by B1 · · Score: 1

      I have a license to drive a car. I cannot possibly transfer my license to another driver.

      Nobody is claiming you can transfer your operator's license to somebody else. You can, however, sell your car, because operator licensing is distinct from car ownership and registration.

      Your driver's license allows you to drive a car on public roads, but that license is not attached to any particular car. It only says that you are legally qualified to drive a car on public roads (e.g. basic driving skill, age, knowledge of rules of the road, acceptable driving record, etc).

      If you own a car, you are allowed to sell the car itself to somebody else. Part of that process is transferring the car's registration from you, to the new owner, and there are legal methods to effect this transfer.

    3. Re:License to drive by TechnoWeenie · · Score: 1

      But when you lease a car you are taking physical possession of an object. When you are licensed to drive you have the right to DO something. You have the right to drive (within the speed limit, in the proper lane for your direction of travel, etc.) With software you are licensed to do something also, i.e. use the software (on one computer, not in a way that disparages the Company ;), etc). In software it is the actual license that is identified by the serial number. The shipped software is identical and the serial number is only incoporated as part of the installation process, which is part of the use of the software.

    4. Re:license to drive by haruharaharu · · Score: 2, Insightful

      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.

      • the DMV is a state agency licensing use of public roads. Software is private property and is licensed by companies.
      • You have to agree to the contract before you get a driving license. No such requirement exists with shrinkwrapped software.
      • The driving license is specific to you. the software license is not.
      --
      Reboot macht Frei.
    5. Re:license to drive by Anonymous Coward · · Score: 0

      This is not correct. You can not just buy a license, you need to pass a test first. This is regulated by the government to give you the right to "use" its interstates and roads and try to avoid endangering other peoples lives.
      You already own your hardware to run the software on. The software is not regulated by the government, and therefore the consumer should be given the same right as any other consumer product.
      I do not remember the last time I "crashed" a hard drive, that I had to deal with insurance companies...

    6. Re:license to drive by Anonymous Coward · · Score: 0

      You have the right to use, but not to transfer the right to use.

      There is no legal restriction from using software. Therefore everyone in the world has the right to use any software s/he wants.

      You could try saying that there is a legal restriction on distribution of software, but the courts have held over and over again that this does not apply to certain types of redistribution.

    7. Re:license to drive by dbretton · · Score: 1
      Completely wrong.

      Your license to drive is a permission of action. That is, you have been granted the privelege to drive on public access roads, within the tolerance of the law. Furthermore, you have been made abundantly clear what your role and responsibilities are, and how and when you may exercise that privelege. The privelege (not right) to drive is a permission of an idea.


      An EULA refers to a product, not a concept. Software is not an "idea", but the physical (electronic or otherwise) manifestation of that idea. It is code. It is not unlike a book, or a white paper.
      We are entitled to buy and sell a book which we own.


      What you are confusing is the difference between the product (software), and the ideas contained therein (proprietary algorithms and such).

      It's quite simple, really.

      I can buy a book, like, "A Catcher in the Rye". I can own that book. I can sell the book. I do not own the ideas contained therein. That is, I cannot quote from the book without giving appropriate credit. I cannot transcribe the book and lay claim to the transcription as my own.


      Software is no different. I have the right to buy, use and sell Microsoft Windows, but I have no right to steal the ideas contained therein.

      -D

    8. Re:license to drive by EllF · · Score: 1

      The license you receive at the DMV reflects, at least theoretically, that you are trained (and capable of demonstrating this training) to operate a vehicle on public roads. The DMV license is not "permission" to drive, although such permission does require the possession of the license, but rather it is certification of your ability to meet certain standards. If you lost that license, you could easily obtain a copy; the license is merely tangible proof of the time you spent learning to drive. That training is not transferable; when you sell Mr. Blow your laminated card, you are selling him a bit of paper and plastic, and nothing more.

      A software license, on the other hand, fundamentally *is* permission to use the software. It represents no intangible capacity; when you sell it, you are giving away all of your right to use the software, as that right is contained in the license. A better comparison, keeping with the current metaphor, would be the title to your vehicle. It represents your purchase of the car; if you sole that to Joe, he would now legally own your vehicle. Like the software license, possession exists *because* you hold the piece of paper, as opposed to the paper serving as proof that you are qualified to own the car.

      --
      We who were living are now dying
      With a little patience
    9. Re:License to drive by Anonymous Coward · · Score: 0

      You'd be in big trouble if:

      a) you stopped making your lease payments, but that is a credit issue.

      b) the person you "sold" your leased car to crashed it. Guess who the company is going to go after?

      What is silly is that you get all the responsibility but few of the true priveleges.

      I have a loan on my car, but I can still resell it, as long as I pay off the loan. A lease should be the same way, but I guess the penny pinchers have figured out that one can put all sorts of neato clauses in leases that have been thrown out along the way with loans. Car loans (and mortgages) are far simpler than they used to be, due to several cases where the loan company tried to enforce various and sundry nasty things in the loan, as if it were an over-reaching contract, but the courts basically said, "it is a loan, you idiots, you have traded the ownership of a product for payments over a term". A lease, cleverly enough, is not that way.

      I own my soul to the company store...

  33. FOR SALE by cdn-programmer · · Score: 1


    I have 2 copies of NT 4.0 and a copy of W2K FOR SALE!!


    If M$ want to take us to court on this be our guest!!!! These are legit copies... NT4 were never opened and the W2K - well - we couldn't get it running properly.


    I'm sure some /.'ers might want them. Open to offers... willing to sell at cost. The W2K for instance - offer $100 bux and its yours.


    Legit? Yup. Bought NT4 as part of a 3 pack from Merisel (we're a dealer). M$ will not allow us an exchange into 2K. Bought the W2K OS for a client who is an artist. After weeks of work we found the years of incompatibilities in M$ crap caught us. We couldn't get her cards to work. So W2K was dumped and she's still on w95. Go figure!


    So the stuff is for sale and my experiance is that our breif foray into selling M$ products was a nightmare. It just cost us money! We don't sell or even recomend M$ products anymore.



    1. Re:FOR SALE by Anonymous Coward · · Score: 0

      Mr "cdn-programmer":

      It has come to our attention that you have registered the domain name microsoft-sucks-cock.com, and have set up a website at that address. Unfortunately, your domain name and website misuse Microsoft's trademarks and copyrights, as well as Bill Gates' right of publicity, in a manner that is misleading and diluting of those intellectual property rights. You have apparently also sent unsolicited e-mail including false statements about Microsoft's view on software piracy. Microsoft respects your right under the first amendment to make commentary and opinion on our company and its products. However, we must object to the trademark, copyright, and right of publicity violations represented by your current activities. Therefore, we ask that you immediately:

      * stop using the microsoft-sucks-cocks.com domain name, and register another domain name that does not infringe Microsoft's trademark rights;
      * stop sending e-mail or making other communications that contain false or misleading statements about Microsoft and/or that contain infringing or other misleading matter;
      * stop using photos or other likenesses of Mr. Gates for which you do not have explicit authorization to use;
      * stop using a penis-shaped Windows flag logo on your website;
      * stop using other elements of Microsoft's website designs, logotypes, etc., in any manner that is likely to confuse users as to the relationship of your site with Microsoft (there is none) or the identity of your website and its content;
      * stop linking to Microsoft's websites in a manner that confuses users as to the relationship of your site with Microsoft (there is none), or the identity of your website and its content.

      I would be happy to discuss with you the specific changes you need to make in order to avoid these improper uses of Microsoft's and Mr. Gates' rights. Or, I would be happy to discuss this matter with your attorney. Please let me know. In any case, it may be advisable for you to seek legal guidance in this matter from an attorney competent in trademark law (including recent domain name infringment law), right of publicity and copyright law, and the general law of parody and the first amendment.

      Please make the changes requested above by close of business this Friday, September 28th (or take your site offline by then in order to make the changes by some later date). Thank you in advance for your cooperation.

      Scott Behm
      Corporate Attorney/Microsoft

    2. Re:FOR SALE by Anonymous Coward · · Score: 0

      We'll be happy to respond to a statment of claim.

      Court of Queen's Bench is on 7th ave. It'll cost you $200 bux to file. We wish to advise that we will counter sue for damages.

      Until then... F.O.

  34. Here is the skinny... by Distan · · Score: 5, Interesting

    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!

    1. Re:Here is the skinny... by w.p.richardson · · Score: 1
      Hey, you forgot a large source of those MS CD's sitting around...


      W/-\r3Z!
      Heh.

      --

      Curb CO2 emissions: Kill yourself today!

    2. Re:Here is the skinny... by mwa · · Score: 1
      I've considered suing Microsoft regarding all of this (seriously) but have put that on the back burner for now.


      Do it! Take them to small claims court. Chances are they won't even show up and you'll get a real judicial judgement that you can use as your own cudgel when you want to do it again, and others can point to to strenghten their cases.

    3. Re:Here is the skinny... by gmhowell · · Score: 2

      That's the likely outcome. But there is another potential outcome: Microsoft shows up and asks to move the case to federal court. Then you are pretty much stuck hiring a lawyer, just to figure out how to respond to federal court stuff.

      It's not impossible, but it is doable. IANAL, but my brother-in-law was telling me about this when he was in law school.

      --
      Jesus was all right but his disciples were thick and ordinary. -John Lennon
    4. Re:Here is the skinny... by Anonymous Coward · · Score: 0

      I've considered suing Microsoft regarding all of this

      On what grounds? It sounds like Microsoft has not harmed you, if anyone it is EBay who has.

    5. Re:Here is the skinny... by ab762 · · Score: 2, Interesting

      has anyone ever gone after the resellers for hardware for not including the original bundled software? M$ is getting extra bucks - because the OS that they got paid for once that should have been resold to me with the hardware wasn't, and I get to go out and buy it again. Nice!

    6. Re:Here is the skinny... by ethereal · · Score: 1

      Your second case is ludicrous (not your fault, of course). A book publisher can't require that I resell their book in like-new condition; if I can find a buyer, I could sell a book that was marked up, dog-eared, and missing half the pages. You may license the software, but you're not licensing the user manuals, etc. are you? You've bought those physically, and you have the right to do whatever with them.

      --

      Your right to not believe: Americans United for Separation of Church and

    7. Re:Here is the skinny... by Distan · · Score: 1

      > On what grounds? It sounds like
      > Microsoft has not harmed you, if
      > anyone it is EBay who has.

      eBay doesn't remove the auctions on their own. Microsoft gives eBay a sworn statement that I am infringing Microsoft's copyrights. eBay only acts because of this claim.

    8. Re:Here is the skinny... by DahGhostfacedFiddlah · · Score: 1

      Just an exercise in cost-justification :
      How much money does MS have to shell out every day to have people watch all these auctions?

      Now, how much money are they actualy losing due to piracy, due to these auctions? I don't mean "losing" as they define it (1000 units sold = 1000 units we didn't sell), but actually losing. What kind of money-making scheme *is* this? It doesn't make sense to me.

    9. Re:Here is the skinny... by bani · · Score: 2, Interesting

      Or you can file small claims in Washington State.

      Washington State has some VERY interesting small claims court laws, one of which is that HIRED COUNSEL CANNOT REPRESENT YOU -- YOU MUST REPRESENT YOURSELF. Of course, this doesnt mean you can't hire a lawyer to advise you, but you have to do all the speaking, paperwork, etc. yourself. I also believe that under washington state law, the venue for a small claims litigation cannot be changed to e.g. federal court for any reason.

      These facts have been used to really fuck over out-of-state spammers who had evil lawyers. Usually after finding out these "little" details about washington state law, they decided to settle, rather than hassle with it.

      You could really put the shits up M$ if you file small claims court in Washington State... their high powered attorneys wouldn't be able to subvert the proceedings...

  35. Fish or cut bait by stinkenstein · · Score: 1

    The problem is that publishers are able to take advantage of two sets of laws, the commercial law that enforces licenses and eula's, as well as the copyright and related laws (DCMA) that attach penalties, (sometimes criminal) to unauthorized copying.

    There is a principle in copyright law call first sale doctrine (or somethign like that) that means that once you buy a book, you can go ahead and sell it again and the publisher can't restrict you. This applies to software as well, but software publishers try to get around it by creative EULA's. I wouldn't have a problem with that if they were forced to choose between the protetections of a EULA or the protections of copyright law, but like anyone else, they want it both ways. They try to take the benefits of copyright law (criminal penalties, etc.) while cutting out the public's rights to copyrighted materials (first sale, fair use, etc.) wiht EULA's.

    Bad, Bad evil people.

    --
    Where do you get *your* entropy?
    1. Re:Fish or cut bait by A+coward+on+a+mouse · · Score: 1

      That's it, I've had enough. The fscking law is called the DMCA. Why does every other poster get it wrong? Type after me: DMCA DMCA DMCA DMCA DMCA DMCA DMCA.

      --
      If you mod me down, I will become more powerful than you can possibly imagine.
    2. Re:Fish or cut bait by stinkenstein · · Score: 1

      Wabbit season!

      --
      Where do you get *your* entropy?
    3. Re:Fish or cut bait by ethereal · · Score: 1

      FUD season!

      --

      Your right to not believe: Americans United for Separation of Church and

  36. Ride me, CowboyNeil! (decode and enjoy) by Anonymous Coward · · Score: -1, Troll

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    ====

  37. Tracking and Verification Next by DumbSwede · · Score: 5, Insightful
    Given the opportunity, I'm sure Ford, GM, Dodge, etc., would love to have a no resale clause. Book publishers have not always been happy with the existence of libraries. Software companies treat us this way because we let them, and because they have deep pockets to engage in lobbying and filing lawsuits until they get their way.

    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.

    1. Re:Tracking and Verification Next by whydna · · Score: 1

      No way with the car companies... they like making the money off the replacement parts. Henry Ford was once caught saying something like "I'd give my cars away for free if I could have a legal monopoly on replacement parts".

      There was an article in one of those car magazines showing what it would cost to build a $25k Ford Explorer from parts... about $65k. The auto companies love it when you resell cars because older cars usually need some work AND you have buy another car to replace it (and somewhere, somebody buys a new car to replace their old one).

      -Andy

    2. Re:Tracking and Verification Next by DumbSwede · · Score: 1
      Part sales are a case of Car Companies making lemons into lemonade.

      If car manufactures could keep you from reselling your car, they could also prevent use of anyone else's parts in repair of same, and in fact could mandate that only their licensed dealers could be involved in the repair of. Instead of your car going to a junk-yard, it would be mandated to be returned to the manufacturer if you didn't pay a yearly maintenance fee (heck, you only lease cars, what the hell is a "sale" ?) Part of this maintenance fee would be yearly upgrades, where various parts of your car were yanked off, and replaced with this years upgraded parts, until eventually your car ground to a halt because it could no longer support the additional power burden of the new parts, or because of some basic incompatibility that creeps in over the upgrade cycle.

      In the end, new cars would be astronomically expensive, used cars may or may not be available through authorized dealer channels, current owners would still repair their cars as long as possible to forestall having to get a new car (with features they don't want or need), with the car companies making even more outlandish profits on replacement parts and upgrades.

    3. Re:Tracking and Verification Next by Anonymous Coward · · Score: 0

      > I'm sure Ford, GM, Dodge, etc., would love to have a no resale clause.

      We can always slap them with the duty and cost of recycling 100% of the car at the end of life.

    4. Re:Tracking and Verification Next by AbsoluteRelativity · · Score: 1

      With everything there is always a back lash. By not allowing resale, they make their product worthless after the first sale. Well not entirely worthless, but leaving only 2 ways to get some value out of it.

      1) Use the software to make (or save) money, directly or indirectly.

      2) Illegally sale or trade (or give away) the 'IP' product to someone willing.

      The second one is what warez/piracy and file sharing are all about. With file sharing its a community thing, and you give away something to help grow the community (and express your feelings about something) and when the community grows so does the amount of available information.

      --
      disclaimer : My views do not represent those of every one else in slashdot.
  38. How about turning this around? by What'sInAName · · Score: 1
    Well, you can't xfer the license, so just sell the media!

    For Sale: One copy of MS Windows 95 media with book. Note: Purchaser does not have right to run said software.

    Could they pull that off of E-Bay? (Of course they can. *They* can do anything!)

  39. More like marriage... by Merk · · Score: 5, Funny

    But what about the nice box (ahem) that software comes (ahem) in? What about the manuals, the CD, and all the other goodies you get in a box of software? Why do you get it in a store, see a price sticker on it, give a cashier money for it, and walk out with it?

    MS wants software to be prostitution. They want you to pay each time you use it, and they want the US legal system to be their pimp.

    Chances are, whether we like it or lot, they'll get to do that. If we're lucky, however, there will be some alternatives in the form of Free software.

    The problem, as I see it, is that right now software is more like marriage. You find what you want, pay a big up-front cost -- the wedding -- and make a commitment for life. When new, improved versions become available you can go through a long, involved process to get them, but you can't recoup the original cost of the wedding. If someone wants your old version, you can't just give it to them, they have to pay for a wedding too.

    1. Re:More like marriage... by Ralph+Bearpark · · Score: 3, Funny

      > MS wants software to be prostitution.

      Open Source is easy, as in promiscuous.

      > [MS] want the US legal system to be their pimp.

      Linus wants you to sleep around.

      Regards, Ralph.

    2. Re:More like marriage... by portnoy · · Score: 1

      So, Linux is free as in love?

    3. Re:More like marriage... by trcooper · · Score: 5, Funny

      Hmmm... I like that comparison... MS is the whore who'll let you do anything you want to with them, so long you pony up the cash...

      But you can do all this yourself by writing your own software...several times a day...and...if you get tired of that, you can get married to the GPL...but then you just have to put up with that nagging bitch (RMS) all the time.

      Ok... back to 'writing software'

    4. Re:More like marriage... by Another+MacHack · · Score: 1

      Or is that free as in "Free Clinic"?

    5. Re:More like marriage... by discogravy · · Score: 1

      >Ok... back to 'writing software'

      ...do you do that with your left hand, or your right hand?

    6. Re:More like marriage... by Anonymous Coward · · Score: 0

      I thought Microslop want it more like a messy devorce - you pay them every month after going through the legal mumble jumble. At the end of it, you don't own anything at all.

    7. Re:More like marriage... by cantanker · · Score: 1

      Married to prostitutes?

    8. Re:More like marriage... by Anonymous Coward · · Score: 0

      Sell the software.
      If anyone asks, you are selling the box and manuals. The CD is thrown in for free!

  40. Just like DirecTV by jbarr · · Score: 1

    Not everyone realizes that they don't own the access card in their DirecTV receivers. DirecTV now has legalese on the box of new receivers stating that fact.

    Of course, Joe Sixpack doesn't care--it's only the card hackers who it truely affects.

    --
    My mom always said, "Jim, you're 1 in a million." Given the current population, there are 7000 of me. God help us all!
  41. Nintento tried to do the same - but failed by Anonymous Coward · · Score: 1, Informative

    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.

  42. Ah but it is! by Anonymous Coward · · Score: 1, Interesting

    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.

    1. Re:Ah but it is! by Oliver+Wendell+Jones · · Score: 3, Insightful

      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
    2. Re:Ah but it is! by HyperbolicParabaloid · · Score: 1

      ...and you would be wrong.
      The licenses DO typically limit you to using the software on a single computer, but they ALSO prohibit you from transfering the license.

      --


      -------------------------
      A person of moderate zeal
    3. Re:Ah but it is! by The+Terminator · · Score: 2, Interesting

      Hi,

      at least in germany those clauses are void. The former company Nixdorf, now part of Siemens was forced to allow transfer of Software some 20 years ago. AFAIK there has been no other ruling ever since.

    4. Re:Ah but it is! by NathanL · · Score: 0, Troll

      Why does anyone bother to ask Slashdot readers anything regarding the law? It is pretty obvious everyone is for GPLing their own versions of the law.

  43. FYI: In Germany selling OEM software is legal by egghat · · Score: 2, Informative

    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
    1. Re:FYI: In Germany selling OEM software is legal by Anonymous Coward · · Score: 0

      Hehehe.
      You were too greedy and now you are screwed.
      Go MS !!

  44. Whats even funnier... by Anonymous Coward · · Score: 0

    Is that I sold a computer with M$ software on it, that was OEM from a different machine. Ebay cancelled my auction 31 hours after the auction ended, the buyer had already payed and picked it up in person. If they're going to enforce this, they need to be a little more accurate ;)

  45. buy & sell by Anonymous Coward · · Score: 0

    Everything you can buy legally, you can
    also sell legally

    1. Re:buy & sell by Oliver+Wendell+Jones · · Score: 2, Funny

      Everything you can buy legally, you can
      also sell legally


      Including prescription drugs and controlled substances?

      --
      A computer once beat me at chess, but it was no match for me at kick boxing -- Emo Phillips
  46. Copyright vs Contract and Copyright misuse by Anonymous Coward · · Score: 1, Insightful

    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.

  47. Why this has continued... by MathJMendl · · Score: 2

    Businesses, of course, make money from selling as many licenses as they can. A used software product is just as good as the original, and thus the companies do not want discounted used copies circulating. Plus, their business plans are sustainable. People don't buy software thinking about reselling it, they buy it for their own use! Plus, they often need this software (or think that they need it, not aware of alternatives), so they aren't in a position to negotiate. Thus, the license based system, while arguably morally wrong, is sustained.

    P.S. There have been studies showing that over 90% of software sold on ebay.com is pirated. Even if 10% should be allowed, if you were an honorable software company selling useful software, would you want these 10% to benefit while 90% being pirated software cutting into your revenues?

    P.P.S. I do not necessarily believe all of the preceding comments, I simply wish to advocate logically for a source that does not find much sympathy on this site.

    --


    "I have not failed. I've simply found 10,000 ways that won't work." --Thomas Edison
  48. EULAs on books and music by TheSHAD0W · · Score: 3, Insightful

    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.)

    1. Re:EULAs on books and music by tvojta · · Score: 1

      You know, the funny thing about that, is that most of the crap in the used CD pile is stuff that nobody wants to listen to. So Ol' Garth should maybe take the hint.

    2. Re:EULAs on books and music by kin_korn_karn · · Score: 1

      OK, now that's just ridiculous. We'd still be in the Dark Ages (as in, medieval times) if it wasn't for information being sharable in the form of books. Look at the renaissance. Leonardo sketched anatomy and came up with brilliant ideas, that he then made free to all. Look at Copernicus, Galileo, anybody who's made a significant contribution to society. Is there no end to corporate greed? It makes me want to move to Sweden.

    3. Re:EULAs on books and music by night_flyer · · Score: 1

      "You know, the funny thing about that, is that most of the crap in the used CD pile is stuff that nobody wants to listen to. So Ol' Garth should maybe take the hint."

      You havent been to a used CD shop have you....

      --


      Thanks to file sharing, I purchase more CDs
      Thanks to the RIAA, I buy them used...
    4. Re:EULAs on books and music by Dexx · · Score: 1

      Don't forget the reformation that started it all. Theoretically, if religion hadn't been brough to the masses, things would be more than a bit different now.

      --
      Feel the fear and do it anyway.
    5. Re:EULAs on books and music by Mondrames · · Score: 1

      It is interesting to note that the article is dated 1993.

      BTW I love plan 9's used collection.

    6. Re:EULAs on books and music by innocent_white_lamb · · Score: 1

      There was recently a push to prevent music stores from carrying used CDs; -----> Not that recent; the article you cite is dated 1993.

      However, the good news in this is that the record labels have been pushing for this since (apparently) 1993, and nothing "bad" has happened that I'm aware of - the used CD stores are still up and running just as they always have.

      Therefore perhaps we can take this article and the apparent lack of action subequent to it as a victory for the "little guy".

      We don't get too many; lets enjoy the ones that we do get.

      --
      If you're a zombie and you know it, bite your friend!
    7. Re:EULAs on books and music by bnenning · · Score: 2
      Oh, but record labels and book publishers would LOVE to limit sales of used product.


      Which would actually work against their best interests. If I know that I can't resell a CD that I buy, I won't be willing to pay as much for it because its value has been decreased. Rational capitalists do not spend their resources trying to make their products less valuable. Of course, it is obvious by now that RIAA members are neither rational nor capitalists.

      --
      How to solve most of our problems: 1.Lots of nuclear plants. 2.Cure aging.
    8. Re:EULAs on books and music by jasonbw · · Score: 1

      Sad thing is, i've bought more books in the past year than i have software and cd's combined. I hope book publishers dont make the mistake of cutting off libraries. It's kinda like Napster but A: its legal, B: it works.

  49. LEGALITY OF LICENSES... by johngaunt · · Score: 2, Interesting

    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.
    1. Re:LEGALITY OF LICENSES... by paploo · · Score: 1

      Not that I'm much in the habit of reading liscence agreements, but don't they usually have a printed version in the box, and if you read it and decide to disagree, you can return the software (maybe only to the manufacture itself) for a full refund?

    2. Re:LEGALITY OF LICENSES... by Ares · · Score: 1

      Not normally. At typical microsoft typefaces, their license would take up anywhere from 4 to 6 full "faces" of the box, which wouldn't leave a whole lot of room for the eye candy on the box; the reason people bought the box in the first place.

  50. hmmm by mc6809e · · Score: 1

    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?

    I have never signed any kind of lease that allowed me to sell what I was leasing.

    If a software maker wishes to lease software, isn't this their right?

    And why do you think people who write software aren't entitled to put conditions on its use? If you write the software -- its yours. If you tell someone they can use it only under certain conditions and they agree, then they are obligated to keep their word.

    1. Re:hmmm by Anonymous Coward · · Score: 0

      When was the last time you signed a lease contract for software?

      I cannot see how an "End User Licence *Agreement*" is enforceable unless both parties sign a contract accepting the terms of the agreement.

  51. Just MS? by tb3 · · Score: 2

    Is this just Microsoft? I've sold some games on Ebay (in their original boxes, with all the docs) after I finished playing them, and no one complained. is this just another example of Microsoft being heavy-handed?

    --

    www.lucernesys.comHorizon: Calendar-based personal finance

  52. Obsolete Systems by davidmb · · Score: 0, Informative

    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...

  53. UCITA by sulli · · Score: 1

    this has only been passed in Maryland (I think)

    --

    sulli
    RTFJ.
  54. allowing anyone to use it is okay... forever. by popekevin · · Score: 1

    You can't sell it, give it away, or transfer ownership. However, you can let anyone use it forever, but just don't offically transfer it,a nd don't accept compensation for it. You may transfer the hardware to another owner while still retaining the software licenses. Fine point, but it appears valid. It is perfectly valid to run your software on someone elses hardware. 100% legal loo hole (TM).

    1. Re:allowing anyone to use it is okay... forever. by Anonymous Coward · · Score: 0

      This is a reasonable point, but you overlook the increasing frequency of "per-seat" licensing language being included even in home use or single user distributions. I noticed this recently as I installed a copy of Norton, where it requires you to only use it on one machine. Presumably it would be your choice to uninstall it and reinstall it on a friend's hardware, "lending" him your media even if you wanted to... this is complicated further however but the blurring line in such cases of "update" agents and subscription service integration (notable in the case of anti-virus software, for example). Can your buddy legally use your "subscription"?

  55. compare to scalping baseball tix by moojin · · Score: 1

    i remember somebody telling me that some 'professional', sports-tickets scalpers were actually legally selling team / game programs for very high prices, but also including 'free' tickets with the purchase.

    in the same manner, couldn't a person on ebay auction the manuals to a piece of software for a desired price and include the cd roms free of charge? i know that the license would not transfer legally, but the sale of manual would not be illegal.

    andrew

    --
    Why did I lurk so long before registering for a Slashdot account? I could have had a Slashdot ID of less than 100000.
  56. Here's what Microsoft is really afraid of by mttlg · · Score: 5, Funny

    The following is not necessarily based on any people, places, events, companies, or laws, real or imagined, and any similarity is coincidental. So there.

    Here's Microsoft's worst nightmare (assuming that Microsoft is a collective entity that can think and dream):

    Person A has a copy of Windows but doesn't want it. Person A just wants to get rid of the piece of junk, so Person A's asking price for the software and license is very low.

    Person B sees a good deal on Windows from Person A and takes advantage of it. Person B notices that there are more people like Person A, giving Person B an idea.

    Person C is being audited by Microsoft and is knee-deep in bovine excrement. Once the manure truck accident scene is cleared, Person C continues on to work, trying to figure out how to deal with the Microsoft situation.

    Person B saw Person C at the scene of the accident swearing about some "Microsoft bullsh1t." Noticing that the manure truck didn't have Microsoft painted on the side, Person B realizes that Person C is being audited by Microsoft. Person B decides that the time is right to act.

    Person B visits Person C's workplace and proposes a solution to the Microsoft problem. After some negotiation, Person B sells the necessary number of Windows licenses to Person C's company, at a substantial profit.

    Person A is happy to be rid of Windows, Person B made a nice profit, and Person C didn't have to pay Microsoft off. Microsoft loses "potential sales" and doesn't get to torture Person C's company anymore.

    Then Microsoft wakes up screaming, but realizes it was all a dream, making note to take action to prevent this horrible thing from ever happening. After reading "The Little Monopoly that Could," Microsoft was once more asleep, content that nothing could harm it.

    The End

  57. Transcender by Anonymous Coward · · Score: 1, Informative
    Transcender is one of the companies that do this.. I found out the hard way after trying to resell my Windows 2000 study stuff on eBay. Wow - guess you should really read their licenses word for word. Their lawyers shut down my auction, sent me a threatening letter. Had I known this before, I probably would have purchased someone elses product.

    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.

    1. Re:Transcender by Anonymous Coward · · Score: 0

      I sold my transcenders after I got my MCSE. I sold them offline to someone who wanted to get his.

      Back in early 2000 before I ever purchased a transcender product I put a message up on USENET asking where I can get them used. That's before I knew what their EULA was. My mom bought me the first set of my transcenders. When I tried to buy the Win 2000 Pro transcender they wouldn't send me the CD and one of their lawyers sent me the message I put up on USENET the previous year.

  58. Sell manual, give software for free... by Anonymous Coward · · Score: 0

    What if, the product you were selling is the manual and pretty little box the software comes in, and you just so happened to be giving the software with it. You're not making a profit from the manufacturers software, you are however reaping the benefits of having the manual and the pretty little packaging the software comes in. Would this still be illegal? I know it's an odd avenue to take, and probably very difficult to prove.

  59. license to drive by TechnoWeenie · · Score: 2, Interesting

    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.

  60. Speaking of Licenses (read yours!) by krek · · Score: 2, Interesting

    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.

  61. Soon this won't even matter by briansmith · · Score: 2, Insightful

    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.

    1. Re:Soon this won't even matter by Anonymous Coward · · Score: 0

      Your software will ensure that you have registered your software and won't run otherwise.

      That sure sucks for those of us who don't have a 24/7 internet connection (or those of us who want to pretend we don't with firewalling software).

    2. Re:Soon this won't even matter by briansmith · · Score: 1

      I think that MS's software registration will only make you send information over the internet when you change the hardware and/or install the software (i.e. when the buyer tries to install the software on a different computer).

  62. Not true by bihoy · · Score: 2, Interesting


    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.

  63. Ride me CowboyNeil! by Anonymous Coward · · Score: -1, Flamebait

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    ====

  64. What if Company A buys Company B? by IcebergSlim · · Score: 1



    Do they have to obtain all new licenses for every piece of M$ software?

    Sounds pretty impossible to enforce, IMHO.

  65. What about Used Games? by Anonymous Coward · · Score: 0

    What about the boxes of used games lining the walls of Electronics Boutique, etc.?

    Is that practice illegal, too? Or do game licenses read differently?

  66. It seems to me... by jgerman · · Score: 2
    ... that I just read recently about some court decision that basically told a company that tried to sue over the resale of their product to go fuck themselves. This should apply to software as well. Of course from reading the other comments I see the common thread that you are licensing the software, not buying it. In a sense this is true, UCITA and the DMCA try to make sure of that, however un-constitutional they may be. But I do own the packaging. The box, the papers in it, the cd itself, they are all mine even if I'm just leasing the information stored on them. This is all certainly true just as it's true for any book that I've bought. In a capitalistic society it's my right to try and make money off of things that I own, and if I want the money from reselling software you can be damn sure I'm going to do it. I don't care if it is easier to copy software than it is a book, that doesn't take away from my rights in any way, shape or form. If they want to protect their software from being copied they must find other legal (and moral means) of doing so other than trying to restrict the rights of normal people.


    Ever since UCITA passed here in MD I've been tempted to go to stores and buy copies of Windows, and return them opened the next day. Since I'm bound now by the license in the box, and I must open the box to see the license I am legally in the right to return the product if I refuse to agree to the license. It shouldn't matter what the return policy of the store is.

    --
    I'm the big fish in the big pond bitch.
    1. Re:It seems to me... by andy_from_nc · · Score: 1

      Actually, in the case of Windoze for instance. The softare producer (Micro$oft) has agreed to take it back. The store has not. So basically its M$ that has to agree to take it back.

    2. Re:It seems to me... by jgerman · · Score: 2

      I figured there may be something like that, but I'm sorry that doesn't work for me, it may be weeks before they refund me my money. I want my money back the instant I see that the product I bought was unusable. If I have to wait I want interest on my payment.

      --
      I'm the big fish in the big pond bitch.
  67. ridiculous. read on... by Anonymous Coward · · Score: 1, Interesting

    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

  68. modifications by aozilla · · Score: 2

    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?


    No one would own (or lease) a car if contract said, "You must not make modifications to this car and sell it unless you give the instructions on how to make those modifications to the new owner". Or if it said "You cannot add a stereo system to this car, thus creating a derivitive work, unless you release that stereo system under the GPL".


    So why is it that the GPL tries to do this for software?


    --
    ok then your [sic] infringing on my copyright! Could you as [sic] me next time before STEALING my comments for your own?
    1. Re:modifications by haruharaharu · · Score: 1

      No one would own (or lease) a car if contract said, "You must not make modifications to this car and sell it unless you give the instructions on how to make those modifications to the new owner".

      Of course, you can just get a copy from someone else for 5 bucks, so your analogy doesn't hold. You could also add a stereo to the car and the sell somebody a copy of the original car, which is just weird.

      --
      Reboot macht Frei.
  69. because you'll still buy it by rebug · · Score: 2, Insightful

    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.
  70. Like a Driver's License, Software is Licensed by thehun101 · · Score: 0, Insightful

    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.
    1. Re:Like a Driver's License, Software is Licensed by DavidTC · · Score: 1
      god, everyone here is completely brainwashed.

      A driver's license is a legal 'license', aka, a permit for you to do X. And, yes, you can sell them to other people, though that would be damned stupid on their part, as it's a permit for you to do something and not really that useful to them. Most people don't want to prove other people can drive.

      Legal permits are completely different then private license. A private 'license' is simply a contract, some can be resold and some can't. For example, the implied contract at an all you can eat places cannot be resold, whereas a car lease can. Many apartment leases can, but some cannot.

      And, no, you don't have the 'right' to get software CDs replaced, I don't know where you got that from, though you logically should be able to if you're licensing the right to use it. But the software industry wants to use copyright law to deny use rights we'd have under any sane licence, and the licenses to deny us the rights we have under copyright law.

      And with video and music, you have, legally, purchased a copy of a copyrighted work. You can do anything the hell you want to them Under copyright law, you can only make copies of said work in certain circumstances with permission of the copyright owners (And in a few cases, playing the work consists of 'copying', but only for large audiences/charging admission/broadcasting over the airwaves.), but anything else you do is 100% legal, including reselling all or part of the work, leaned it to someone, etc...

      --
      If corporations are people, aren't stockholders guilty of slavery?
    2. Re:Like a Driver's License, Software is Licensed by (void*) · · Score: 2
      Excuse me, a driver's license implies that there is a central authority to consult on who is licensed and who is not. I could go to the DMV and ask if someone is licensed to drive a certain vehicle.


      Do you think MS maintains a registry of all the users of Windows? If not, what kind of "license" is it? If they don't keep track, it means that the identities of the licensees don't matter to them. And if they don't care, why should they worry about transfers?

    3. Re:Like a Driver's License, Software is Licensed by BlueMonk · · Score: 1

      Ah, but maybe you *do* have to purchase the "license" to access the extra features and higher quality (extra pixels? extra pixel durability?) of the DVD version :)

  71. Intersection of Cars and Prostitution by davidgunnar · · Score: 1

    The current software sale model is sort of half way between what two other posts were talking about - prostitution and car leasing.
    Software sales are more like a car rental; it's just that you pay a fixed price for an indefinate rental. Think of it this way... you're not supposed to let anyone else drive your rental car (unless you pay extra), and you certainly can't re-rent it to someone else!
    But now they're trying to charge you per day%^$$!

    1. Re:Intersection of Cars and Prostitution by cbwsdot · · Score: 1

      Usually, leases are not signed upon purchase of software.

  72. Bad analogy by Perianwyr+Stormcrow · · Score: 2

    I'd be more than glad to tell the guy who buys said fictional car how to engage the James Bond smokescreens and the autocannon that I put on in a moment of paranoia, and how to take them off if he doesn't want to be liable for carrying military hardware. But those can be added and removed freely, like modules. The GPL says that you can indeed make closed modules. And so it would be the same if the fellow put his stereo in the car after I sold it to him, because a stereo component is a module.

    I imagine there might be a case for a lawsuit if you made your car run on Russian rocket fuel or some such thing and didn't tell the guy you sold it to. So, integral modifications are already covered.

    Can we get away from comparing apples to socket wrenches?

    --

    What we call folk wisdom is often no more than a kind of expedient stupidity.-Edward Abbey

  73. Software Donations by GrEp · · Score: 2

    Why not set up a non-profit oganization to donate your old software to? Going to throw out that old PII box? Why not donate the software and wipe the drive before you sell it for parts?

    Maybee the EFF could set this up. You would be able to buy great software like Excel97 for peanunts, and M$ would get the shaft. Licence management would be tricky, but as long as you have the origninal CDs and certificate of authenticity I doubt M$ could have any valid legal claims.

    --

    bash-2.04$
    bash-2.04$yes "Don't you hate dialup connections?"| write USERNAME
  74. First sale doctrine, etc. by markmoss · · Score: 5, Interesting

    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.

    1. Re:First sale doctrine, etc. by blazin · · Score: 1

      Rhino-3D (3D modeling software) has an interesting way to keep licensing legal. In order to install on a computer, you must have an original key. However, it is very possible to install the software on several computers. However, only one copy of the software can be running at the same time if it was installed with the same key. If you start up the copy on the other computer it will inform you that the license associated with the copy you are trying to start is already in use, and then it will exit. (Sounds similar to Quake 3 and Half-Life).

      Rhino also has the ability to have a "Zoo Keeper" where many keys can be installed. Every time a user starts a copy of Rhino, it goes to the key server and gets a valid key. If all the keys are being used, it cannot start up since the company only purchased x number of licenses. Seems like a fairly decent way to do things to me. It lets you install on whatever computers you would like, but lets you run only the number of copies you have purchased simultaneously.

    2. Re:First sale doctrine, etc. by danaris · · Score: 1

      That's generally a very good way of doing things, and there is a product called KeyServer for Mac that can do this with any product that doesn't do it for itself. However, there is a fatal flaw: disconnect the machine running the extra spawned copy, and there's no possible way it can tell that someone else is using another copy with the same license code, or whatever. It's one thing with a multiplayer game, where you have to be connected anyway, but with something like this, even if you need to put your work on a server, all you need to do is disconnect, work, close, reconnect, put it on the server.

      Dan Aris

      --
      Fun. Free. Online. RPG. BattleMaster.
    3. Re:First sale doctrine, etc. by SuiteSisterMary · · Score: 2

      Microsoft SMS has a similar thingy; you registier a piece of software, tell it how many licenses you own for that software, and any SMS client in it's admin domain will ask before it lets you run said software. The problem is that I've never actually been able to figure out if Microsoft licence terms on their own software; i.e. office, visio, etc etc, allow you to use such a system; install X amount of times, but only allow Y copies to run at any given time.

      --
      Vintage computer games and RPG books available. Email me if you're interested.
  75. Ahhhhh by robi2106 · · Score: 1

    You know, this has been one of the few clear posts I can recall that helps explain the new MS sales model. Thanks for the ilumination!
    But why post this as AC? This was a good comment.

    robi

  76. This is a question? by deth_007 · · Score: 1

    The answer to this is simple, and I would have thought that this would have been a non-issue to any slashdotter..

    The skinny of it is this: you don't own the software you bought. You purchased a license to use the software. And in M$'s case, your license does not include transfer ability.

    Is this strange? No, and it's pretty much the same as have a driving license, or most any other license for that matter. (In the general sense.. don't get picky here).

    1. Re:This is a question? by Anonymous Coward · · Score: 0

      you don't own the software you bought.

      Yes, I do. It's mine, and you can't have it.

      I went to a store and bought it. I paid money to the store (I have a receipt) in exchange for a boxed software product.

      At no time was I told that I was "licensing" the software. There were no signs in the store, there was no mention by the sales clerk, there was nothing printed on the box.

      If I chose to sell or give this software to someone else (under the right of first sale - so I'm not violating copyright law) and the software company tries to sue me, I'll countersue them for false advertising.

    2. Re:This is a question? by deth_007 · · Score: 1

      You can also go out and buy a distribution of linux. Do you think this means you have the right to sell any software included in that distribution? Or more clearly, do you think that buying it makes what is contained within 'yours', to do with as you please?

      Of course not.

  77. Not so. by jotaeleemeese · · Score: 1

    If right to use was declared transferable, MS would be obliged to grant the use of their product to the new licensee.

    No warranty perhaps, no support if you like, but the only thing any software company could arguably do would be to ensure that one and only one copy derived from a given right to use is running at the same time.

    Why to get into this mess? Open Source is the way to go.

    --
    IANAL but write like a drunk one.
    1. Re:Not so. by briansmith · · Score: 1

      If right to use was declared transferable, MS would be obliged to grant the use of their product to the new licensee.



      If courts held that you had the right to transfer the license to your software, what current law would require Microsoft to assist you in ensuring that the buyer of the re-sold license can use the software? In other words, from where did you draw this conclusion?

    2. Re:Not so. by jotaeleemeese · · Score: 1

      MS wants to police the right to use of its software. As such, would they dare to disobey a judge that has ruled somebody has the right to use the software?

      I don't think so. They would be contravening the order of a judge, not a position in which they would like to be I guess.

      --
      IANAL but write like a drunk one.
    3. Re:Not so. by briansmith · · Score: 1

      My point is that a judge may say "you can transfer your license". However, that does not imply "Microsoft must assist you in the transfer," does it? I'm not sure exactly how law works in these types of situations.

      Also, Microsoft is basically going in the direction of a leasing model, where you pay a subscription to use the software. Sure, you may be able to transfer your lease to me, but would that be cheaper than you cancelling your lease and me signing a new lease? Especially when you consider that MS might charge a "transfer" fee (just like an apartment manager can).

  78. Article in Wired October 2001 by falloutboy · · Score: 2

    Does anyone know where the article mentioned in the story actually is? I have the October 2001 issue of Wired, and page 170 is music reviews.

  79. Is there a lawyer in the house? by Anonymous Coward · · Score: 0

    I have a question about this. Is a contract legally binding just because it states that by performing some action I agree to it? Like when these websites say

    "Copyright blah blah blah. By viewing this website you agree to the terms of use."
    Or like "By using this software you agree to the license agreement".

    This doesnt sound like it would hold up very well in court. If it did, then I could make a sign in my front yard saying "By viewing this sign you agree to the terms of an eight page contract that I keep in my house."

    any thoughts on this?

    1. Re:Is there a lawyer in the house? by billn · · Score: 1

      First off, I am not a lawyer, but:
      Yes, those statements are binding and legal, because they serve as a warning to you, unless the license agreement or terms of use is non-accessible. If you click through a license agreement without understanding what you are agreeing to, you are still bound by it. It's like signing any document without reading it.

      The difference most people don't get is that since there isn't a physical signature, there must be no real agreement, right? Wrong. Any web site you go to with that kind of intro will laugh in your face if you complain or attempt to sue based on content within, because in order to see it, you had to agree to the terms of use. If you didn't take the time to read them, that's your own damn fault.

      I made a post a couple weeks ago that led off with an exercise in copyright law. It read that by reading the rest of my post, all users agreed not to respond under the guise of AC, and by doing so violated the terms of use, and authorized me to request information from this website and their isp in order to determine their identity. Is it legal? Sure, you couldn't read the rest of the post without agreeing to it, and you know what? Not a single AC replied. Now, like EULAs, is it really enforcable? Could I have grabbed a lawyer and gone the last mile? Remains to be seen.

      --
      - billn
  80. Facts? Cases? Any actual data? by darklord22 · · Score: 1

    My question is, have these clauses been upheld in court?

    I don't believe this question has been answered yet.

    Does anyone out there know of any acutal cases involving this issue?

  81. Re:doctrine of first sale UTICA by Avla · · Score: 2, Informative
    Just attended a lecture where the lawyer said UTICA was passed in Virginia and Maryland.

    An article about the Uniform Computer Information Transactions Act

  82. 'You cannot own software- but we can own YOU' by tenzig_112 · · Score: 2
    Transferring ownership is one thing. Transferring from an obsolete box to a shiny new one is another.


    Microsoft 1990: "Keep using Windows because you'll have to buy all of your old software again if you switch."


    Microsoft 2001: "Users do not and cannot own software. Transferring from one computer to another requires a special license and transfering ownership is prohibited."


    You may have noticed that most commercial software is so bad that users wouldn't want to transder it onto a new machine.


    There's also the issue of registry faults as an inadvertant form of copy protection...

    1. Re:'You cannot own software- but we can own YOU' by danaris · · Score: 1

      There's also the issue of registry faults as an inadvertant form of copy protection...

      What makes you so sure it's inadvertent...? :-P

      Dan Aris

      --
      Fun. Free. Online. RPG. BattleMaster.
  83. ProCd v. ZEIDENBERG (EULA legal in midwest) by buddhaunderthetree · · Score: 1

    The underlying theory seems to be that vendors should be able to establish price discrimination schemes and that the EULA by forbiding reselling. The opinion is pretty well written even if you disagree with the conclusions. Sorry no link but it is from the Court of Appeals for the 7th district.

    --
    "Technology.....the knack of so arranging the world that we don't have to experience it." Max Firsch
  84. "Software as a Service" by analog_line · · Score: 2, Insightful

    ...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.

  85. Re:license to drive (Poor example) by anonicon · · Score: 1

    That's a poor use of the word "license" as indicated by this topic. Here, let's try this rephrase:

    OK, last week I went down to the bookstore and bought a book. Now I have the "right" to read this book. This week I decide I don't want to read any more so I sell the book to Joe Blow down the street.

    Does Joe Blow now have the "right" to read this book?

    Software licenses work exactly the same way. You have the right to use, but not to transfer the right to use.

    I don't have the right to use or transfer the book I bought to Joe Blow? That's cockamamie!

    Remember, software companies might try to "license" their goods to you, but the courts have *repeatedly* made it clear that if you bought the source media, you own the right to sell or transfer the original media. That's one reason why .Net is so big - no source media, no ownership, no issues for Microsoft on this end. You don't own anything because you never got the CD.

  86. This is very uncapitalistic by SIGFPE · · Score: 4, Insightful
    In a capitalist economy I can try selling product X to A and B but if I overcharge A and not B then A can get B to buy it and then buy it off B. This keeps prices in check. This is one of the key elements of a capitalist economy that makes it work so efficiently for both buyer and seller. It seems to me that EULAs put much more of the power into the hands of the seller than the buyer and we actually lose many of the great benefits of capitalism.


    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
    1. Re:This is very uncapitalistic by raresilk · · Score: 1

      I don't think the concept of a EULA itself is anti-capitalist. It's simply an "end user license agreement," which is a limited bundle of rights that you purchase - the content of that bundle of rights may vary from one licensor to another. Even though it's not intuitive to think that way, when you buy a car or a plot of land you are also buying a bundle of rights defined by law. "Yeah, but I own the car and can resell it or do anything I want with it!" Well, yes you can resell it - that's part of the bundle of rights you buy with the car. But you can't do anything you want with it, even though it's "your" property. You can't park it on the sidewalk. In some neighborhoods, you can't even park it on your own front lawn, even though the car and the lawn are both "your" property. And you can't run over me with "your" car, even if I'm standing on "your" lawn. And even the most fundamental, traditional private property such as a parcel of land can be subjected to restrictive covenants by the seller, which are binding on the buyer and all successors.

      In short, private property and what you can do with it is a legally delineated and limited concept, in all its forms. Software licenses are not qualitatively different.

      The real question to ask about EULAs, from a capitalistic perspective, is "why are the EULAs all the same" and "why do they keep getting uniformly more restrictive." In a healthy competitive environment, the desire of intellectual property holders to increase profits by imposing more-restrictive EULAs would be offset by the danger of losing customers to competing IP holders offering less-restrictive EULAs. Where you see the opposite behavior for an extended time period, you are looking at a market where normal market forces are not operating. This can be due to abuse of a monopoly (as with MS in the OS market) or to oligopolistic collusion analogous to price-fixing. Neither of these are a product of the licensing concept itself.

      --
      No, no, no. This is not a sig.
    2. Re:This is very uncapitalistic by SIGFPE · · Score: 3, Insightful
      Yes, you're right. This is still capitalism. But I think that capitalism has changed in meaning over the years.


      There are, as far as I can see, (at least) two ways to view things like constitutional rights. Either they exist because they are basic 'natural' human rights that exist for their own sake - or they are a means to an end. For example I think property rights are a good thing not just because individual people want to have them for themselves. They are also good because private property and the right to trade it gives an economy where people try to maximise their utilities and the net result seems to produce a far better (by many standards) allocation of resources than, say, a command or feudal economy.


      The reason we have things like intellectual property rights is similar - it encourages innovation and it means that everyone as a whole can get to use intellectual property to the advantage of lots of people.


      But it seems to me that we've shifted towards the former view more. Companies aren't interested in innovation etc. They are interested in protecting their 'rights' (whatever the 'right' of an abstract entity means). I believe we have lost sight of the reason for having a capitalist economy in the first place. So in a sense I think that practises like EULAs are turning us away from what capitalist economies are meant to be for.

      --
      -- SIGFPE
    3. Re:This is very uncapitalistic by zor_prime · · Score: 1

      This would be an example of political rent seeking. Here is an interesting paper on it.

      --
      "We all do no end of feeling, and we mistake it for thinking." -Mark Twain
  87. The customer is the problem by Virvel · · Score: 1

    I think the real problem is with the customers, not the companies that
    sell software.

    Allthough I totally hate the concept that I shouldn't be allowed to
    sell an item I've purchased, whether it's a tangible thing or an
    abstract notion, I feel that in general everybody should have the
    right to try to sell whatever they want under whatever conditions they
    feel like.

    If someone want to sell a car with the restriction that it may not be
    used on tuesdays, well, let them try. In the end, it will be the
    customers who decide whether this is "allowable" or not by choosing to
    buy or not to buy the car.

    Companies have tried to screw its customers since the dawn of time,
    and they will continue to do that to whatever extent we allow them to.
    If we disagree with a certain practice, then our main weapon is to
    boycott the product or seller.

  88. Only in Japan... by Anonymous Coward · · Score: 0

    In Japan, it is illegal to resell video games once they've been purchased from the retailer. Nintendo was basically the major push for this, since there were so many Nintendo games they were trying to make everyone buy their own copy. Instead, what most Japanese folks do is go to something akin to a trading house. For a monthly membership, members can give their games to the shop and essentially "trade" them for other games. Since there is no explicit money exchange for the trading of the games (you can trade as many or as few as you want), this circumvents the law.

    This certainly isn't fair practice, especially since we're dealing with a very tangible product (i.e. a cartridge or CD). And I'm wondering how it is that Nintendo ever managed to get such a law passed in the second most capitalistic society in the world. Go figure...

  89. What happened when I sold my Everquest CD on Ebay by jjn1056 · · Score: 2, Informative

    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?
  90. another similar case by skotte · · Score: 0
    This subject reminds me of the music industry's pleas of a similar nature. i recall some years ago garth brooks was coming out vehemently against the reselling of his CDs at a used record store. i dont think it ever went to trial or even really was fFocused at one party or another -- afterall, how do you sue "every used record store in america"? but i do recall all the indignation against his work. fFunny bits on TV of people barbecuing garth CDs, and such.


    so i guess the thing i wonder then is: will this eventually blow over, like the used CD issue? no-one cares about that any more, do they?

  91. Specifics by hysterion · · Score: 2
    "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"
    Searching Google for software + first sale doctrine returns 2060 hits, with this case among the first few:
    Adobe Systems, Inc. v. One Stop Micro, Inc.

    BACKGROUND

    Adobe is a software development and publishing company. Among other things, Adobe makes educational versions of their software, which are available to students and educators at a significant discount. Defendant One Stop buys and sells computer hardware and software on the open market. Adobe alleges that One Stop improperly acquired an educational version of Adobe software, which it then adulterated and sold as full retail versions to non-educational users. In its complaint, Adobe alleges that the agreement was a licensing agreement and not an actual sale, that One Stop infringed Adobe's copyright, and that One Stop infringed Adobe's trademark.

    DISCUSSION

    The court found that the Off Campus Reseller Agreement, which governs the educational seller's relationship with Adobe, was a licensing agreement and not an actual sale. Because the first sale doctrine, implemented by the defendant, is triggered only by an actual sale, and because a copyright owner does not forfeit his right to distribution by entering into a licensing agreement, this factor weighs in favor of the plaintiff. The OCRA is a licensing agreement. Thus, contrary to One Stop's assertions, the OCRA does not represent a first sale between the seller and Adobe. One Stop's failure to trace its Adobe products to a sale renders the first sale doctrine inapplicable and subjects One Stop to potential liability under copyright law.

    The court also found that One Stop committed copyright infringement as a matter of law under Section 501(a). By obtaining Adobe software from a party to an Adobe licensing agreement, One Stop was bound by any restrictions imposed by that agreement. Thus, One Stop committed copyright infringement.

    Lastly, the court found that One Stop did not infringe Adobe's trademark. Although Adobe attempts to parallel its case to Shell Oil, the Court found Shell Oil distinguishable. The court found that the mere distribution by One Stop of admittedly unadulterated software is insufficient to establish trademark infringement.

    CONCLUSION

    In Adobe Systems, Inc. v. One Stop Micro, Inc. the Northern District of California held that the agreement under which software was distributed was a licensing agreement, not subject to the Copyright Act provision that copyright did not extend to resale of copyrighted items following their initial sale. The court also found that the license agreement applied to the distributor, even though it was not signatory. Last, the court held that the distributor committed copyright infringement by violating the licensing agreement.

    1. Re:Specifics by markmoss · · Score: 2

      It's not entirely clear, but this case doesn't seem to hinge on a shrinkwrap EULA. The court decision as reported doesn't even say that One Stop ever saw a EULA -- they weren't installing the software, but reselling it, so if the on-screen license is the only notice, they wouldn't have. It looks like the court just seized on "licensing" as a way to avoid thinking about the tougher issues. And One Stop might do just as well to take their lumps for license infringement rather than taking the case to a smarter judge who might find other grounds to leave them on the hook for copyright infringement, and also wonder whether selling the educational version as the full version was fraud.

      The "Off Campus Reseller Agreement" seems to be a contract which was actually _signed_ by Adobe's educational distributor. One Stop "bought" discounted software from that distributor in bulk and sold it on the open market as the full, not the educational, version. So without thinking about licenses at all, One Stop was claiming that it's purchase gave it rights that the unnamed distributor does not have to sell. An analogy here is that an innocent buyer of stolen property is still out his money and the property -- and it's a whole lot worse if the judge decides that your behavior shows you weren't all that innocent...

  92. Poor analogy by Anonymous Coward · · Score: 0

    A driver's license and a software license are different things, since a driver's license is essentially a right to render a "service" in public, whereas a software license is not a right to render a service but a right to use a product. A product. A car is not so much a product in the sense of a driver's license as it is a means of conveyance and the right to use any legal conveyance on a public road. It could just as well be a little red wagon with a lawn mower engine on the back. It's not a car. But software is still software.

  93. Retail businesses have been put out of business by iplayfast · · Score: 2, Interesting
    I knew someone who was in the business of selling software. He business revolved around the idea that you could try out the software (for a small charge) first. If you liked it, then you paid for it. If you didn't like it, you took it back to the store and it was put put back on the shelf at a discounted price. Eventually the price was discounted to the point where someone would buy it. The Software Publishers Association went after his little store and 3 others that were doing similar things, in order to establish case law. They of course went out of business because of all this, and the end result was that less software was sold.

    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.

  94. My Sis by Marcus+Brody · · Score: 3, Insightful

    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!

    1. Re:My Sis by Anonymous Coward · · Score: 0

      if she's a good businesswoman she should know that the license doesnt sell the software - it just places restrictions on it. the software's features, packaging and marketing sell the software. licenses are irrelevant.

    2. Re:My Sis by Anonymous Coward · · Score: 0

      The point is: License's restrict how you can sell the software. With the GPL, I think she quickly realised she would sell it to Joe Bloggs, who would then burn a million copies and undercut her price. Therefore making a profit difficult at best. Although MS does put many restrictions on their products, they are much less restrictive in terms of making vast quantities of wonga (bill gates can testify to this).

  95. Were I a male prostitue... by Havokmon · · Score: 1
    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*.

    .. would I be the servicee? or the servicer? In either case, the 'client' could come (pardon the pun) away with a tangible good.. It would just take 9 months.

    --
    "I can't give you a brain, so I'll give you a diploma" - The Great Oz (blatently stolen sig)
  96. huh? by um...+Lucas · · Score: 1

    I sell software all the time on eBay... All the licenses i've read state that it's fine to transfer the license as long as you transfer everything about the software (packaging, manuals, original disks, backups, etc...).

    Generally, i'll quote from the license saying where it's okay to tranfer, explain that i'll do exactly that, and i've never heard of a complaint... Sold Microsoft, Adobe, and many other big title software that i simply didn't need anymore...

    I think the key is to be clear about exaclt what you're selling, so that companies can't be under the impression that you're possibly selling a counterfeit product.

  97. Here's why..it's an ongoing battle. by mindstrm · · Score: 4, Interesting

    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.

  98. Assumptions and marketing... by Anonymous Coward · · Score: 0

    We all use software stores. General public, my self included, normaly view retail stores in terms of sales. Were these places termed with words such as lease and rental the resale right might be less confusing. Also many of such said places do sales in console games. No restrictions on resale of these it would seem. Most consumers I feel consider software to be long any other packaged product.

    Also, to the piracy issue, reduction in resale is not in the benefit of the average consumer. It's nice to be able to buy a proffesional graphics/3d app/etc. on occasion even if it is a bit old. Most of us can't afford the brand new app, a lack of older products for this secondary market only helps to promote piracy.

    Just my thoughts...

  99. Lotus and Caterham by Anonymous Coward · · Score: 0

    Then why did Caterham have to purchase the rights to the Lotus 7?

  100. That's very, very different. by mindstrm · · Score: 2

    Software contracts regarding the original purchase & support & software for that Cray were not shrinkwrapped click-through agreements sold in a box at computer-city. They were agreed to by lawyers, principals of the university, accountants, etc.. there were negotiations, and a contract was agreed upon for the use of the software.

    This is what MS is trying to claim happens when you walk into the store and buy MS Windows.
    The problem is... although the contract might be there.. the perception to joe average is that he bought a product off the shelf.. and the click-through is really deceptive.

  101. Why sell M$ software on ebay? by EvilStein · · Score: 1

    If you sell it, you're implying that it's actually worth money.

    Give it away. Give it to the Red Cross. Give it to a local church. Leave it in a box that says "FREE SOFTWARE" on the side of the road. Trade it to a friend. Find a used software shop that might want to buy it from you...

    There are other options besides ebay..

    1. Re:Why sell M$ software on ebay? by kusma · · Score: 1

      Does the EULA allow you that? (To give your used computer with its old Win & Office to charity, while you go and buy a new WinXP box)

      Or would using your gift be piracy from the charity people?

  102. If software vendors... by rnturn · · Score: 2

    ... could pull it off you'd hear accounts like:

    ``...This court orders the defendent to use -- daily -- the software that was bundled with the personal computer that they purchased and further orders that the defendent cease use of any software that may be freely obtained from the Internet...''

    Methinks that software vendors need to GET REAL! At a company where I used to work several years ago, new PCs were routinely wiped and loaded with whatever software was actually needed for the task for which the PC was purchased. (Lord only knew what crud had been loaded and what horrors in the registry awaited the unsuspecting user.) Sometimes the PC was purchased to run Linux or Novell. Do they think that someone's would actually toss out the Windows CD that came with the box? Har har har.

    --
    CUR ALLOC 20195.....5804M
  103. D'oh by buddhaunderthetree · · Score: 1

    Proof I shouldn't post and eat at the same time. That should read the the ... "that the EULA by forbiding reselling of a product helps maintain price discrimination."

    --
    "Technology.....the knack of so arranging the world that we don't have to experience it." Max Firsch
  104. Right. by mindstrm · · Score: 2

    And, although I can't speak to licencing issues...
    When I buy the win2k kit at London Drugs.... I *OWN* the media, books, everything else I just purchased. The clickwrap 'license' only appears when I use it.
    Ergo.. I have a de-facto right to RE-SELL what I initially purchased.

    1. Re:Right. by slashdog · · Score: 1

      Isn't there usually something in there that says "If you do not agree with these terms, return to place of purchase for refund."

      Not that I actually think that the store would give you a refund on an opened box...

  105. Re:doctrine of first sale UTICA by carlos_benj · · Score: 1
    Just attended a lecture where the lawyer said UTICA was passed in Virginia and Maryland.


    Last I checked, Utica can only be passed on your way through New York state....
    --

    --

    As a matter of fact, I am a lawyer. But I play an actor on TV.

  106. Score -1; Fallacy by Nicolas+MONNET · · Score: 1

    Your comparison is invalid, if not a complete fallacy.

    First of all, you don't "buy" a driver's license at the DMV. You are granted one, and (possibly) pay a fee. No, it's not the same as buying. In some states/countries driver's license are free or at a symbolic price (say, $1). You may be forbidden to get a driver's license for medical reason or legal reasons (like prior drunk driving).

    Just because software license and driving licenses are both "licenses" doesn't mean they're the same. You're just playing with words.

    Orange, apples ...

  107. Bullshit by Anonymous Coward · · Score: 0

    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.

    A Drivers license allows you to drive any car.

    Does a software license allow you to use any software?

    With your analogy, that would be "Yes!"

    Who's the moron that labeled this guy as "insightful"??!?!

  108. The courts have ruled by Anonymous Coward · · Score: 0

    The 9th circuit distict court of the US has ruled that once a manufacture vends an item it cannot control the vending of said object. Does it keep you out of court? Nope....Microsoft sued me into oblivion for selling OEM software. I just got done paying them most of my salary for the part 2 years. Do you think that I would ever hire an ex-microsoftie? Not a chance!

  109. Big Difference between examples by lazytiger · · Score: 1

    There is a huge difference between music/software (or other various intellectual properties) and tangible things like cars and clothes that people are comparing them to - you can't miraculously copy the car or clothing article for pennies. You obviously can copy words, sound, or programs and keep a copy for yourself before you sell the original. This seems like a very obvious difference that people are just glazing over in the name of consumer rights.

    Now, the record, publishing, and software industries are all greedy bastards... there's no doubt about that. But to say that they have no more reason to be upset about the reselling or the nature of ownership of their products than Ford or Chevy is a little shortsighted, to say the least.

    Again, this is a completely separate issue from those industries being *reasonable* about their business practices and demands on consumers. But it's important to note the differences between products.

  110. Actually, you lose rights if you sell your car by Anonymous Coward · · Score: 0

    With most new cars, you can sell the car, but
    it voids the manufacturer's warranty. At least
    you can still sell it, but the point is that
    car companies would like to encourage you to buy
    new cars, too.

  111. Used CDs by sulli · · Score: 2

    ... And there will be a big boom in used CDs if/when Universal's copy-protected shite hits the stores. Good!

    --

    sulli
    RTFJ.
  112. What's so new about "first user" clauses? by Yurka · · Score: 1

    Why isn't everybody up in arms against the "lifetime/long-term warranty to original owner only" deals? Granted, such clauses do not reduce the value of item for resell to zero (as the no-resell provision for software does), but they do seriously affect its attractiveness, thus (one might argue) artificially inflating the "brand new" market by providing an incentive to buy from mfr. These are quite common for musical instruments, for example.

    --
    I can assure you, the best way to get rid of dragons is to have one of your own.
  113. Lets just accept it for what it is... by Archfeld · · Score: 2

    the software companies addmitance that their SW is GARBAGE, and that what you are really getting is a time limited access to support to try and make their crappy SW work. When you move on to another piece of SW, the support time has been used up :)

    --
    errr....umm...*whooosh* *whoosh* Is this thing on ?
  114. Real crux of the matter - What IS software? by dpilot · · Score: 3, Interesting

    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.
    1. Re:Real crux of the matter - What IS software? by jiheison · · Score: 1

      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.

      This is not quite true. There are huge economic inefficiencies attached to the duplication/distribution aspect of publishing. I work for a distributor, and I can assure you that the entire industry is licking their chops at the idea of ditching the paper book entirely. The ultimate goal is to turn books into software and sell them as a service. Of course, the purpose is to eliminate production costs and pocket the difference. Current eBooks are already subject to many more restrictions of use and transfer, and are generally not cheaper than their paper versions.

      Any information converted to a digital format can be considered software. As such, look for Microsoft's tactics to be adopted by all kind of publishers.

    2. Re:Real crux of the matter - What IS software? by dpilot · · Score: 2

      But that's really my point...

      They're trying to hang onto the role, but not the job. You're exactly right, they want to get rid of the inefficient part, keep the price right where it has been to sustain physical media, and keep the difference as profits.

      Unfortunately eBooks have a good role model in the music industry. Where else can you take something (the CD) that is SOOOO cheap that AOL uses it, and for that matter it comes as a freebie in Cheerios, and charge more for it than cassettes, which actually have moving parts and non-negligible duplication costs. I presume we've all read "Courtney Love Does the Math".

      --
      The living have better things to do than to continue hating the dead.
    3. Re:Real crux of the matter - What IS software? by jiheison · · Score: 2

      As much as I hate to say it, I must admit that the creation of the content is where it's true cost lays. Most readers/listeners/software users judge the value by the media is is distributed on. This, obviously is not an accurate perception, as it does not account for the cost of producing the content.

      What I do have a problem with is the control issue. I would pay the same price for an eBook as a paperbook if I could use it in the same ways. The convenience of portablilty, and searchablilty would make up for not reducing the price. However, this "service" nonesense significantly degrades the value of the product to me. If I can't copy it or recoup my costs by transferring it when I no longer need it, I won't pay the same prices.

    4. Re:Real crux of the matter - What IS software? by HiThere · · Score: 2

      Actually, it has a hugely lower worth. I rarely resell used books. Usually I give them away. So that's not why I hate the e-books. But the idea of a time-limited or playback-limited version ...
      The whole thing is quite distasteful. I frequently go back to books that I bought over a decade ago. I'm not about to trade this for something that stops working unpredictably, and then can't easily be replaced. That's nearly worthless in comparison. And you are talking to someone who has a huge book habit. I've been known to spend over $200 in a single week. But forget e-books. They are trash.

      Also, I haven't met anyone this year who would willingly purchase one. I haven't been looking, but I haven't met anyone.

      --

      I think we've pushed this "anyone can grow up to be president" thing too far.
    5. Re:Real crux of the matter - What IS software? by jiheison · · Score: 1

      Also, I haven't met anyone this year who would willingly purchase one. I haven't been looking, but I haven't met anyone.

      Nor have I. Even among the people I work with in the industry. That is the truly outrageous thing about the whole situation. Everyone knows that that readers are hostile to the idea. Unfortunatley, Microsoft is proving that you can force whatever you want down customers throats if you limit their options. So, publishers are pushing ahead to a model that only benefits them by increasing their control over their content and the revenue it generates.

  115. You usually don't SIGN a contract... by Anonymous Coward · · Score: 0
    Dear all, Since I have little legal background, maybe my comment is not true for all countries. Let's see: - I can understand that a publisher wants to prevent piracy of it's product, this is covered by the usual IP and copyright laws.
    - However (and this also applies to books: sometimes you can read in the small print that you should not resell the book. Sometimes such statements can also be seen on dvds or vhs tapes), you normally don't sign a paper stating that you won't sell the product.
    I know, during installation many programs force you to accept the "terms and conditions" but I seriously question the legal value of such a step since this decision is forced upon you AFTER you bought the product. It could be an interesting case in court (of course few mere mortals would dare to face a big software publisher in court)...

    comments? best regards, Tom

  116. Ebay is Microsofts slave by MS · · Score: 1
    The frontend of www.ebay.com is a cluster of servers running Microsoft WindowsNT (see netcraft).
    You know, the server-licenses for all those boxes may cost a lot of money, unless you have a good contract with Microsoft...
    ...and Microsoft will not renew this good contract, when you don't agree to its dictat!

    Maybe its time for Ebay to switch to Linux (as Amazon, Altavista and others did) to be finally free.

    BTW: in Italy like in Germany (and maybe all EU) it is perfectly legal to resell software - I did it several times.

    Just my 2c.
    ms

  117. Which begs the question... by Vainglorious+Coward · · Score: 1

    ...why *haven't* MS taken someone to court over this? (as opposed to just bullying eg eBay). Could it be because there's a very good chance these kinds of licences *would* be struck down?

    --
    My next sig will be ready soon, but subscribers can beat the rush
    1. Re:Which begs the question... by swordgeek · · Score: 2

      Read my original point.

      When you have a 900lb gorilla, threatening people is usually effective enough, and much easier.

      Even a 90% chance isn't good enough for MS to go to court unless someone was _really_ a thorn in their side. Even a guarantee of winning doesn't negate the fairly substantial costs of actually going through the process.

      MS doesn't want to go to court unless they have to, and they have a VERY big gorilla to discourage anyone from forcing their hand.

      --

      "People who do stupid things with hazardous materials often die." -- Jim Davidson on alt.folklore.urban
  118. Newtek is a good company by Bob+Gortician · · Score: -1

    when it comes to transferring licenses, or at least they used to be. I remember buying the Video Toaster 3.1 software, or something like that, from a vendor, and it was used, and sold because of a new 4.0 edition. At any rate, it didn't seem legit, so I called the president of the company, and he said he didn't have a problem with it. Now if they'd only release Inspire 2.0, I would register my 1.0 copy. Erm, maybe I have that backwards.

    --
    Get my free Hitchhiker's Guide Tribute Novella:
  119. Not just M$ Software by mkelley · · Score: 1

    I ran an auction for a demo version of Novell Netware 5.0 that also included a cd of test prep and other software demos that I had received from Novell Users International. I've never used the software since my company moved to NT (don't do it). It was a 3 user demo that I wanted to sell. I put it on ebay and within 2 days it was removed because the license needed to be transfered with permission from Novell. I never agreed to their license and it was given to me by NUI. But they removed it and would not return my emails and phone calls.

    --

    m.kelley
    life is like a freeway, if you don't look you could miss it.
  120. Good Old Abe Said it Best by jcoleman · · Score: 1

    Abraham Lincoln

    (Nov. 21, 1864 letter to Col. William F. Elkins)

    I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country. As a result of the war, corporations have been enthroned, and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed. I feel at this moment more anxiety for the safety of my country than ever before, even in the midst of war.

    http://www.dreamscape.com/morgana/hyperion.htm#ABE

  121. Re:14th vs. 1st by Anonymous Coward · · Score: 0
    Please explain. I thought that all state laws must also be proven constitutional or they can be thrown out by the U.S. Supreme court.

    Or is that only if there is a federal issue involved?

  122. Buying Used Software by Pyrosz · · Score: 1

    You can buy and sell used software in Canada at least. Electronics Boutique will buy your old software as long as you have the manuals and original CD's for the software. At least games anyway, I have never tried to sell a copy of say Windows or something. This goes along the lines that I have bought a physical thing, the box, cd's, manuals, etc. and that as with any physical purchase I can resell it at any time. It makes no difference whats on that CD as long as its original. The license only takes effect upon installation. Therefore if you remove it and there is nothing left of it on anything you own, you are not using the software that you only agreed to use (via the EULA) and can then sell the physical part (CD's,Books...)

    --

    An optimist believes we live in the best world possible; a pessimist fears this is true.
  123. Other ad campaigns by nicestepauthor · · Score: 1

    Your post reminded me of a notion I had. The famous Apple commercial had the line "Why 1984 won't be like 1984". You could do a similar spot against Windows ME saying "Windows ME: why 2001 won't be like 2001."

    1. Re:Other ad campaigns by Alien54 · · Score: 2
      You could do a similar spot against Windows ME saying "Windows ME: why 2001 won't be like 2001."

      Or a documentary type of commercial, showing how the multitasking technology was sat on by Microsoft for about ten years, anyhow. Squeezing as much profit out of as little technology gain as possible.

      "Does your computer live up to your expectations? The role of MS in keeping technology down ..." Roll the film of all those companies that died, or were absorbed. Just the facts. All those technologies that never saw the light of day.

      It could be like a political campaign commercial.

      --
      "It is a greater offense to steal men's labor, than their clothes"
  124. Shopping... by Vermithrax · · Score: 2, Insightful

    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

    1. Re:Shopping... by Bitsy+Boffin · · Score: 1

      I think you'll find that while the store owners have bought the disks, they have not accepted the license for them and so it is legal for them to sell you the disks.

      If you don't accept the license (by opening the package generally), you could sell it on legally too.

      Of course, IANAL.

      --
      NZ Electronics Enthusiasts: Check out my Trade Me Listings
    2. Re:Shopping... by MonkeyBoy · · Score: 1

      Er, but what about that little stickler that contracts have to be signed BEFORE the sale?

      EULAs are unenforceable because they require you to follow the stipulations AFTER the sale.

      It's like buying a car, then having the salesman come by 5 minutes after money has changed hands and saying "great, thanks for buying, but now you have to pay $200/mo for 5 years".

      It's even a big leap to simply have the contract enforced BY the sale. Typically restrictive contracts like this require a signature, thereby certifying that you've read it and agreed to the terms.

      --

      Moof!

  125. Vaguely offtopic by ElDuque · · Score: 1

    I've always been wondering this, and Slashdot is pretty smart, so I guess I'll ask him (Her?). What is the deal with the inside of books, where they say:

    "If you purchased this book without a cover you should be aware that this book is stolen property."

    It goes on; pick up any paperback nearby for the rest.

    Are book thieves somehow required to tear the cover off of all the books when they rob Borders?
    What do they do with the covers? Is the cover my license? (Hopefully that makes it an iota closer to ontopic)

    1. Re:Vaguely offtopic by John+Murdoch · · Score: 2

      Hi!

      Yup--it's off-topic. But it's a good question.

      The book industry has business rules that date (literally) back to the time of Gutenberg. Among those business rules are a standard trade practice of permitting bookstores to return books for full credit up to a year after the date the bookstore bought the book from a publisher or wholesaler.

      For most publishers returns are a colossal pain in the neck. You have to inspect the books to determine if they are damaged, you have to restock the book into the warehouse location, you have to handle a bunch of accounting grief--the list goes on and on. For most "trade" publishers return rates average from 5% to 15% of books shipped.

      For mass-market publishers the business rules are a bit different. Mass-market publishers use substantially cheaper materials, and print in substantially larger volumes--they will release lists of titles each month, and will only anticipate a selling season of one to three months. When the bookstore pulls the book from the shelves it does not return the entire book (there's no point: the publisher has declared the book out of print). Instead the bookstore rips the front cover off of the book and just returns the cover for credit. The bookstore is then supposed to dump the body of the book in the trash.

      However, if you browse the sidewalk stands in midtown Manhattan you will notice hundreds if not thousands of paperback books that are missing their front covers. What happens is that a bookstore (or clerk) sells the stripped bodies out the back door to the sidewalk merchant. It might be for a few cents per copy; it might even just be to avoid the cost of paying a trash hauler to take the books away. But that stripped book has been declared to the publisher as having been discarded, and the author does not receive any royalties for the sale.

      Years ago I was the business manager of a small publishing house (where I installed Netware 86 in 1983). My little company still does software development for publishers and warehousing companies.

      And since I just noticed that you're at Lehigh, I should mention that I'm in Wind Gap, twenty miles north of you.

  126. Of course... by Anonymous Coward · · Score: 0, Interesting

    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.

  127. Time to get the CA AG again by cprael · · Score: 4, Interesting

    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.

    1. Re:Time to get the CA AG again by DocMiata · · Score: 1
      At local "auction houses", it is, by state law, illegal for them to sell firearms. Those auctioneers have circumvented this by figuring out it's *not* illegal to give a firearm away. Therefore, they hold auctions for nice wooden gun racks, and the high bidder gets the rack, along with a "bonus" of a free rifle.

      Likewise, you could place on ebay an ad saying that you are selling a "box, printed with the Microsoft logo, saying Office 2000 on it" along with various and sundry pieces of paper printed on the behalf of Microsoft, etc. The winner of this auction will also receive free, a CD-ROM, also printed on behalf of Microsoft, and bearing a Microsoft copyright, logo, etc. and the words "Office 2000" on it.

      This would seem to me to be perfectly legitimate, as I do *own* the media, documentation, box, etc. and I can do with it as I see fit. Nowhere in the above ad have I tried to transfer any license. The person who buys it can do with what they receive from me anything they see fit to do, as long as they don't install it on a computer. I have done nothing wrong in placing my ad, and the onus is on the *buyer* to not break the licensing agreement.

      Let's see Microsoft try to trace every sale of media on ebay to the buyer and then try to prove they actually did install it. Restraint of trade would be easy to prove if no one's ad implied that the "media" being auctioned was useable on a computer. (Then again, most Microsoft products aren't useable even right out of the shrinkwrap, but that's another subject...)

      Doc

  128. Clarifying 'software sales' by jpmorgan · · Score: 1
    IANAL

    Software often gets compared to other products and analogies drawn - these analogies are often flawed and really make trying to figure out WTF's going on tough. They are flawed because they compare software to the two other primary forms of commerce that occurs in modern society.

    • Sales of products
    • Sales of services
    A product is a physical entity, it is consumed and used; while the CD software typically comes on is a physical entity, it is just a medium: by destroying the CD you don't destroy the software, just one physical representation of it. So software can't be a physical product (and isn't). A service is something that is done for you by someone else, it expires. Software does not expire, and it is not something someone does for you (ASPs would fall into this category, however). Software does not expire, it is something you use yourself (with the assistance of a computer) so software can't be a service (and isn't).

    Software is the rarely discussed third type of entity, software is information. It isn't a product and it isn't a service, it shouldn't be treated as such.

    Information is intangible, it can't really be sold or bought and this is the stance a lot of people like to take. This is perfectly correct but like everything else, its use can be restricted and protected; enter copyright law. Copyright law implies that you don't have the right to use information (whether it be music, art, pure information or software) without the creators permission (or whomever the creator has given the right to). When you 'buy' software at the store, you buy a box, some pieces of paper and a CD medium of the information...and a license. The license is important bit, though; it's the legal agreement that gives you the right to use the information presented on the CD. You don't have to agree to this, but as it says in the GPL, nothing else gives you the right to use the software; if you don't like it, too bad. A previous posted noted that installing/running software involves it be copied to the hdd and ram, which is restricted by copyright laws.

    The great thing about the law is it gives you a whole slew of legal protections, unfortunately with the exception of a very few rights (like right to not be imprisoned, killed, etc...), these rights are alienable - you can sign these rights away in a contract, and it can be legally binding.

    This, of course, is where EULAs get their teeth.

    Jump to the real-world. There are further legal protections: there are things you are not legally allowed to include in copyright licenses as opposed to normal contracts since they're not signed, etc... (hence side-stepping the whole alienable rights and copyright protection issue) which is usefull somewhat, but the story doesn't end there. If you have a contract (or license agreement) which has sections which are found to be illegal, the entire contract (or license) is null & void - not only do you not have the right to resell the license onto someone else, you don't have the right to use the software product at all, except where the contract/license has provisions which explicitly deal with the situation where some of the license is found to be illegal (in which case what the contract/license says goes).

    Of course, there's no such thing as a perfect contract (and by extension, license), and you can always get around them with enough subtlety of thought (and a good lawyer).

    So I better not hear anymore software/service or software/car analogies. :)

    1. Re:Clarifying 'software sales' by danaris · · Score: 1

      But that's not really right either; software isn't really information, except in its purest form, source code. By itself, information cannot do anything. Software, on the other hand, can. It can perform marvelous tasks at the click of a button. Now, it doesn't even need you to double-click on it; it can run automatically, or even, in some cases, download itself to your computer without your even clicking through a license agreement, run itself, and install itself so deeply you need to reformat and reinstall Windows to get it out. But simply calling it information simply doesn't do justice to it. Our problem is we are trying to use 18th century terminology and ways of thinking to regulate 21st century technology. Software is its own category and should be treated as such. There should be completely separate laws regulating it (and I, personally, think they shouldn't be too restrictive). We are still, fundamentally, using outmoded styles of thinking, and we need to update our--and especially our government's--ways of looking at the world.

      Dan Aris

      Welcome to the 21st Century.

      --
      Fun. Free. Online. RPG. BattleMaster.
  129. Ha-ha! by T1girl · · Score: 2

    (Assuming target clientele=female) as if any girl would pay for it!

    In either case, the 'client' could come (pardon the pun) away with a tangible good.. It would just take 9 months.

    More likely she would come away with a tangible liability, and you'd spend the next 18 yrs. paying for it!

    -- What would Missy Elliott do? --

    1. Re:Ha-ha! by Havokmon · · Score: 1
      Hey now.. Don't dis the studliness!

      Besides, prostitutes don't have a viable income that can be garnished. When's the last time you saw a laywer tying to get a pimp to garnish his ho's wages?

      --
      "I can't give you a brain, so I'll give you a diploma" - The Great Oz (blatently stolen sig)
  130. The Public's Perception by 4of12 · · Score: 2

    I think the public's perception with regard to software is more along these lines:

    If it came with MyPC instead of jewel-cased CD, then it's probably too hard to get off the hard drive and would be too hard to get to work with the new MyPC, which comes with a new OS anyway (no choice, there), so it's not worth hassling with.

    In other words, the software comprising the OS is regarded much like any other piece of hardware that comes with MyPC. The analogy to hardware becomes more complete because there is an element of obsolescence, that ties the old OS to the old hardware, makes it hard to run on new hardware, makes running the new OS with old hardware difficult, etc.

    OTOH, if I buy a jewel-cased CD with manuals, etc., I sure would like to able to use it on my new PC. If I can't, then maybe I'll buy Rev N+1 that runs on my new OS that came with the new MyPC.

    From what I've seen, average consumers haven't given much thought to the details of software licenses/use/ownership issues.

    But I have seen rumblings that indicate that they do not much care for having to rent software that expires and causes their computer to cease functioning unless more money is paid. That starts to resemble an essential utility, like electric, phone, or, in this era, the Internet Service Provider.

    I can't tell yet whether the average consumer will make such a transition easily, or will look to see if there are any alternatives to the software subscription model.

    --
    "Provided by the management for your protection."
  131. Re: liable for $100/hour by CodeShark · · Score: 1
    I would agree with everything in your post but the "liable for $100/hour" part, with four slightly different reasons.
    1. With the speed of distribution, virtually every major software house would be out of business the moment a bug was discovered,
    2. Joe little guy sells his way-cool nifty program, with an unknown bug. See case #1, then add any large client taking away all of Joe little guy's assets if the bug takes too long or isn't resolvable
    3. the software failure is in a mission critical application (a SQL server instance connected to IIS perhaps), in which repairing and reimbursing a serious flaw needs to cost much much more, and
    4. What about proprietary software on an open source platform? Who pays if the bug is in the OS?
    That said, in order for corporate produced software (i.e. non-Open Source, non-Shareware, proprietary & EULA'd software to be sold, I believe that it makes sense for some type of minimal or greater warranty to be required, just like the lemon laws which apply to "real goods".

    Which is why big companies demand "Service Level Agreements" or "SLA"(s) from virtually all of their outside computer hardware and software vendors, with all of the nit picky details hammered out by the attorneys for both sides in advance of the software licensing deal being signed.

    Or why every line of code used by any component of an airliner has to pass some fairly rigorous testing in order for the component to be sold, and I imagine [but can't reliably state] that medical tech software probably has similarly stringent legal requirements.

    Shouldn't the little guys be able to collectively negotiate some of the same rights via legislated warranty minimums?

    --
    ...Open Source isn't the only answer -- but it's almost always a better value than the alternatives...
  132. Console Video Games.... by Brat+Food · · Score: 1

    Walk in to a local Babbages, EB, whatever, youll see shelves of used console games, be it for playstations, or even the original NES. But one of the chains sells used COMPUTER games, but as i understand it, thay have a list of what publishers they can take, and everything else is off limits. So it would seem that this company got permission to re-sell used titles. If you think about it, this is a double whammy, since they are sold, then resold =)

    There were huge legal battles over the resale of used console games if memory serves, and now, you can freely sell and resell.... why would this not apply to computer software, they have pretty much the same licenses....

    --

    "Stuff... In my home!? NEVER!" - Zim on Invader Zim
    "I want the toilet seat!" - Little Dog on Two Stupid Dogs
  133. Reminds one of Linus Torvalds old quote... by Anonymous Coward · · Score: 0

    "Software is like sex, it is better when it is free."

  134. Cray by Accumulator · · Score: 1


    We had a Cray at our university some years ago. It was leased, and when they stopped using it, people from Cray came and took the hardware and destroyed it (secret hardware etc.). Now only the empty "box" is left, and is used as a sofa (you can actually sit on the boxes where the power-agregators where) at the faculty of electronics.

    --
    "The assembler gave birth to the compiler. Now there are ten thousand languages." - Tao of Programming
  135. I wouldn't mind so much if... by michael_cain · · Score: 2
    I got the same kind of terms for the software that I get for everything else that I lease:
    • Well-defined period of time for which I am licensing it,
    • Assurances that the software does what the vendor claims it does (love those phrases saying that the "product" may not be good for any purpose),
    • Agreement by the vendor to replace damaged media at cost (what's that, 25 cents plus shipping these days?) in a timely fashion during the period of the license,
    • Various conditions that cover my ass should the vendor go out of business (eg, full disclosure of file formats if that happens),
    • No changes in terms without consent of both parties,
    • Etc.

    Ditto for DVDs and the DMCA; if I'm just licensing the right to view the flick, then I damn well expect the studio to replace damaged media at any point during the term (indefinite?) of the lease.

  136. No xfer... by SmurfButcher+Bob · · Score: 1

    Most every EULA includes a clause forbidding the transfer of ownership of software

    It makes for an interesting point. It probably means that Time Warner needs to re-purchase every MS license they have, since that software cannot legally be "owned" by the new AOL-TW entity. Same for my local power company, which covers a good hunk of NYS... they just got bought by some British corp. I guess their EULAs are all null and void, too...

    But I don't think that'd be reasonable. You gotta figure, a company with 1,000 copies of NTW gets bought by someone else. All assests of that company are transferred, no way in hell do the EULAs expire...

    --

    help me i've cloned myself and can't remember which one I am

  137. Just Say No! by Rothfuss · · Score: 1

    How about a central repository where everyone can ship all of there Licenses, keys, boxes, receipts etc?

    Then when MS comes knocking and says

    "We will be auditing on the 20th of April,"

    you place a call to the repository and say,

    "Yes, I'll be needing licenses for 420 Win2k Workstations running Office 97 from April 19th until probably April 23rd..."

    If M$ is going to continue to be oppressive jerks, I think we owe it to them to be uncooperative. It would be most amusing telling the auditor with a straight face that you did in fact purchase all of your copies of Windows primarily one at a time from assorted stores in 37 states, often simultaneously.

    And I have a question... I've heard of people being sent a letter requiring authentication of M$ product licensing for their business/city etc. Then a big internal audit is made and a check is usually sent to M$. The associated cost of doing the audit really is wasteful. Why not just say "Yep - It looks good to me. I'm satisfied. No you are not allowed into our building and no we won't mail you squat... I told you I'm satisfied. Good day sir."

    What would their recourse be? It isn't as if the US justice dept. is on their side. They can't just invite themselves in (See Blood Sucking Vampires). If they try to gain the information from offsite and without permission they will be deemed terrorists (if Ashcroft has his way).

    So. The new response to software auditing... Just Say No!

    -Rothfuss

    1. Re:Just Say No! by Anonymous Coward · · Score: 0

      Unfortunately, the US government is on their side..if you don't allow the BSA in voluntarily, then they work with the FBI to get a search warrant.

      The kicker is that having the M$ "Proof of Authenticity" is not proof of ownership, at least for a business. A business has to be able to show purchase orders or receipts for the software.

    2. Re:Just Say No! by HiThere · · Score: 2

      The kicker is that having the M$ "Proof of Authenticity" is not proof of ownership, at least for a business. A business has to be able to show purchase orders or receipts for the software.

      I thought it was the other way round. Are you sure? I seem to remember reading about this city in South Carolina that had the purchase orders, but not the holographic seals, and got shut down for a while.

      --

      I think we've pushed this "anyone can grow up to be president" thing too far.
    3. Re:Just Say No! by Anonymous Coward · · Score: 0

      Well either which way, I don't think Microsoft is just going to decide to "come knocking at your door". They usually have reason to do so, and it's also usually a good one. Like having proof that you're buying pirated copies of their software. I couldn't tell you the last time Microsoft just decided, "well this looks like a nice big company to pick on, let's see if all of their products are licensed". Doesn't work that way, they already have proof. They just wanna see how much they can burn you on. If it was like that, you could simply answer "No, sorry... We run REAL operating systems and software here. You know, they kind that's actually productive"

  138. I've been thinking about this by athier · · Score: 1

    I have been thinking about licenses lately, and weather or not they hold any legal grounding. Even more because of the people (myself included) who always click right through the license agreements. So, I came up with idea:

    Someone writes, say, a network application, and in a very long EULA, includes statements that allows the software writer to, at any time, access and read any files off of the computer... or worse even, format the hard drive of the user. Unsuspecting user that thinks this piece of software will work great in the office, and automatically clicks through the EULA. Now the users computer gets thrashed or somthing like that. Company that the user works for tries to sue the developer, but wait... there is that clause in the EULA that supposedly permits this.

    So the result would be that either the courts would have to rule that EULAs are not legal documents, and we can get on living, or that the EULA is a legal document, and its too bad for the company and the worker that installed the software.

    What do you think?

    1. Re:I've been thinking about this by danaris · · Score: 1

      I've been thinking about it, too, and what's to stop someone from creating a scenario like this:

      You want to download something. Doesn't much matter what. You click on the download link, and a page comes up saying, "If your download does not automatically start in 5 seconds, click here. While you're waiting, why not read the EULA?" You are (really) bored, so you actually take a look at the EULA. As you keep reading, you're horrified at the stuff it prohibits you from doing and the stuff it lets the writer do. Then you get to the bottom of the page. "By allowing the download to proceed, you indicate that you have agreed to all the above terms and conditions blah blah blah."

      So, unless you can speed-read the whole thing in under 5 seconds and stop the download from starting, you've just signed your life away. I can't see that it's, conceptually, much more unreasonable than the current methods.

      Dan Aris

      --
      Fun. Free. Online. RPG. BattleMaster.
  139. You really are buying it! by Fujisawa+Sensei · · Score: 2, Insightful

    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.
  140. What??? by LowneWulf · · Score: 1

    Actually, at least back in earlier times, I remember most licensing agreements WOULD allow you to sell your software, as long as you sold all the original packaging and manuals along with it. I don't remember a single product, back when I would actually read these licenses, that ever objected to the sale of their software if it was done legally (aka not pirating).

    Have the licenses changed that much since I stopped reading them?

  141. Re:ridiculous. read on... by IDStewart · · Score: 1
    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.

    Let me see if I've got this right. The DOJ is at fault because Microsoft engages in questionable licensing practices?

    Seems to me there's a pretty simple solution. You don't like the terms of the license, don't purchase the software. Enough folks do that, Microsoft will be forced to either change the license or lose their business.

    Or, if it really bothers you so much, file a law suit yourself.

  142. Do you have your Certificate of Authenticity? by AKosygin · · Score: 1

    If my memory serves me right, almost all Microsoft Product comes with a Certificate of Authenticity, which has the CD Key printed on it. And I would think that you would need to give that to the new owner-to-be for them to use the software. Is that certificate not sufficent proof? I mean it DOES PROVE IT IS A LEGITIMATE ITEM, doesn't it? Do you REALLY NEED the receipt and box? Is that certificate not good enough? If it isn't then why did they make the freaking thing anyways?

    Also, isn't the CD itself has a protection to PROVE IT IS REAL!? That little shinning hologram near the center? (In the case of Win2K the whole disk is like that.) You are transferring EVERYTHING you have. Do you really need the box when it no longer exists?

  143. Copy software to use, Printing Press Plate resale by Odinson · · Score: 2
    "The legal basis for restrictive EULAs is that you have to make a copy of the software (in your computer's RAM) in order to use it. Copying is prohibited without explicit permission, and so, therefore, is use. Therefore the companies can ask you to sign whatever argument they want before allowing you to use the software."


    This seems to compare to map making, which was one of the primary arguments in favor of copright law existing at all. A software cdrom could be compared to a set of plates for a printing press to make a map. If those plates should be availible by licence, so should computer software. That seems to be the logic here.


    But this is a symptom of practical constraints more than moral ones. Printing presses were always very expensive and belonged to business before. But the situation has changed now as many people own their own personal printing press(computer), and the plates to print one map(software).


    So the real moral question is, should people be allowed so sell their plates along with any licence to make copies of their maps. (legal number of 1 in ram plus more recent fair use protected backup of 1)


    So the question really is... Can you resell copyright based licences so long as the number of copies allowed by the licence is honored.


    I say yes. That reselling printing press plates with the number of copies allowed by licence is moral and would have been allowed had it come up.


    Any lawers with a good understanding of copyright history in the mix?

    Are their any legal precidents set? Did reselling printing press plates along with an allowed number of copies ever come up?


    For example: A publishing house bought plates and the right to print say 800 maps for resale. They land a contract for printing a best selling book and make more money printing copies of that. Rather than sitting on the plates until the map is inaccurate they resell the plates with rights to print 300 unprinted maps remaining. The map desinger takes them to court, claiming he never gave them permission to do such a thing.


    What happened?

  144. Re: liable for $100/hour by markmoss · · Score: 2

    You seem to be associating my $100/hour proposed charge with a lot more than I intended. It's for (shrink-wrap purchased) software remotely shut down by the vendor in error -- that should be a rare occurrence. I think $100 is fair for a home user that's been deliberately shut down, if they fix it promptly. If a vendor has their tech support screwed up, so the hours tick away -- that deserves a much bigger cost. If they screw up so many times that this bankrupts them, putting them out of business is probably a good thing. If the possibility of such a screw-up persuades software vendors to leave out the remote shutdown "feature", that's even better, IMO. But I don't like just flat out banning it.

    I didn't consider the possibility that it might not be the vendor shutting software down in the mistaken belief that the software is pirated, but malicious hackers instead. E.g., if Microsoft puts that into their server version of Windows, a lot of people would think it served them right to have it used to crash their own servers. (Oh wait, some of them are still running *nix/Apache...) If the hackers weren't satisfied with that and hit third parties -- what should MS's liability be???

    I do know there are servers where the cost of an unscheduled shutdown might be far over $100/hour, maybe even $100K/hour. I'd expect that in that case (1) you won't use an OS that has such vulnerabilities, and (2) you ought to be negotiating the license and warranty terms with the vendors rather than relying on the warranty that's sufficient for Joe Sixpack's porno browser.

  145. Re:14th vs. 1st by aozilla · · Score: 1

    See here, among other places (search for "selective incorporation" and/or "Fourteenth Amendment" for more). States are not required to follow the second ammendment, nor the seventh, nor the fifth ammendment right to a grand jury. The first amendment and most of the bill of rights is incorporated, but only because of the fourteenth amendment. Before the fourteenth amendment, states could make laws abridging free speech. It is still unclear whether or not local governments can make laws abridging free speech, and the whole thing rests on the current interpretation of the supreme court (which wasn't always the same, as has been repeatedly disputed by minority opinions).

    --
    ok then your [sic] infringing on my copyright! Could you as [sic] me next time before STEALING my comments for your own?
  146. Except it's explicitly allowed in the MS EULA by Anonymous Coward · · Score: 0

    The ones we were all reading last week - FrontPage and XP - both expicitly allowed resale. They said you had to delete all copies from your own machines, but could then resell them.

  147. works for me by maxpublic · · Score: 1

    Any time MS shoots itself in the foot I'm a happy camper. The more often they throw around their weight, the more likely it is for their customers to bail.

    You can't imagine how pleased I'd be if I never had to fix another shitty installation of Windows ever again. It almost makes me want to go back into Perl/C++ programming just to get away from Really Bad Software (RBS)(TM).

    Max

    --
    My god carries a hammer. Your god died nailed to a tree. Any questions?
  148. Shrinkwrap licenses by drinkypoo · · Score: 1

    It's my understanding that shrinkwrap licenses don't hold up in court, and that the feeling is that if you didn't sign something, you aren't legally bound by anything. The software companies all spent a few measly grand writing those blurbs for the packet of software on the off chance that they would hold up in court.

    eBay is just willing to bend over for anyone who can crush them. While this isn't completely unreasonable practice, it does mean that eventually they're going to get bent in so many directions that they break off near the root. If you agree with everyone, and then some of those everyones disagree with one another, you are now in trouble.

    While the contents of the media are protected by copyright law, both domestic and international, the media itself is readily transferrable, as is the piece of paper the [unenforcable] shrinkwrap agreement is printed on, and the pretty holograph-impregnated license sheet as well, as they are physical things which you own.

    --
    "You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
    1. Re:Shrinkwrap licenses by SuiteSisterMary · · Score: 2

      Contract law states you get something in return for something. You get the software in exchange for money. Great. Then you open it up, and the EULA suddenly takes away a bunch of rights. No quid pro quo, no meeting of the minds, no upfront intent. Ooops.

      --
      Vintage computer games and RPG books available. Email me if you're interested.
  149. Have any nekkid pics of Steve Ballmer? by Anonymous Coward · · Score: 0

    Want to buy some? Go to www.sweaty-crevice.com

  150. Guilty until proven innocent... by Anonymous Coward · · Score: 0

    ... by the corporate powers. Welcome to the New Free Democratic Peopl's Republic of America, comrade.
    WHERE ARE YOUR PAPERS!?!

  151. Re:Ah but it is! - not really by hillct · · Score: 2

    There are many cases where licenses are non-transferable, particularly in the case of corporate licenses of intellectual property, but I believe (IANAL) most licenses are transferable by default, unless specifically stipulated otherwise. As I recall some states require consumer product licenses to be transferable (stating that non-transfer clauses are not enforcable within that state). I'm just not certain in which states this is true. The UCITA makes ajustments to the transferability rules, but the site I'm referencing here is not an even-handed analysis of that legislation (primarily because I don't have time to look for a better analysis). If you find what's written there to be disturbing, remember that it's decidedly pro-UTICA so an even handed analysys would be even more disturbing.

    --CTH

    --

    --Got Lists? | Top 95 Star Wars Line
  152. I don't get it. by twitter · · Score: 2
    what's this transfer thing?

    apt-get transfer does nothing for me.

    --

    Friends don't help friends install M$ junk.

    1. Re:I don't get it. by Anonymous Coward · · Score: 0

      You used your +1 bonus for this?

      That's pretty pathetic, don't you think?

  153. Re:because... The problem is US law! by gweihir · · Score: 1

    Actually the problem is not with Microsoft (for once) as some other postings claim, it is with US law.

    In Germany, e.g., you have the full right to sell or give away a copy of some commercial software product as long as you don't keep a copy for yourself. Incidently MS grants you this right in their german/european EULA, simply because they cannot take it away from you (this was Windows 3.1, have not checked later versions).

    At the same time the popular shrink-wrap contracts are completely invalid here, too. As long as you did not sign a specific document or actively agreed with an EULA (by clicking) is is as if it does not exist. Even when you agree actively there are restrictions. For example any clause that probibits reverse engineering is void. The reason is that european copyright law explicitely allows the reverse engineering of software as long as this is necessary to use the product in the intended way. That means you are allowed to find and fix bugs. Now most larger software products have bugs and most of them are difficult to localize...

    --
    Most ACs are not even worth the keystrokes to insult them. Be generically insulted and ignored otherwise.
  154. Who Really holds the "license"? by Dr.+Evil · · Score: 2

    Microsoft demands that you have a license for all your applications. Microsoft gives you a Certificate of Authenticity, they give you original media, they give you an End User License agreement... which one of these constitute a license?

    I don't think a single one does. The EULA tells you your rights. The Certificate just prevents counterfeiting.

    A receipt represents evidence that you purchased the software from an authorized dealer. The EULA guarantees that you cannot resell that software and break the train of proof-of-license which the receipt provides. If you could sell software, people could shuffle silly paper licenses around whenever an audit occurs... there would be no way to proove that anybody owned anything at any particular time.

    From what I hear, an OEM license isn't even valid unless you can prove that the software was purchased at the same time as your CPU, HDD and Motherboard.

    1. Re:Who Really holds the "license"? by SuiteSisterMary · · Score: 2

      The EULA takes the right of resale away. Took me a while to wrap my head around EULAs vs the GPL, but here it is. The GPL says 'here's some software. Legally, you can't copy it, but I'll GRANT you the right, assuming you agree to these conditions. Otherwise, use it all you want, but standard copyright applies.' In other words, it grants rights you don't legally get automatically. The EULA, on the other hand, says 'here's some software. Before you use it, you must agree to GIVE UP the following legal rights you probably already have..no resale, blah blah blah.' In other words, as a precondition to using it, you need to surrender rights. And that's the rub. Of course, with things like UCITA, if I recall the acronym correctly, EULAs becone a bit more kosher.

      --
      Vintage computer games and RPG books available. Email me if you're interested.
  155. Um...actually... by danaris · · Score: 1

    Actually, not only has something like this happened, it was on slashdot--and it wasn't just some company, it was public schools that were hard-up to begin with. Granted, there was "piracy" going on, but it wasn't like it was malicious, or (and this pretty much applies to any case of small-time piracy) it wasn't hurting Microsoft any more than losing a penny down the sofa would hurt you or me.

    Dan Aris

    --
    Fun. Free. Online. RPG. BattleMaster.
  156. EULAs for Commercial Software... by sfe_software · · Score: 2

    ...have all sorts of rediculous clauses. What other industry makes you agree to a license which states that there is NO guarantee that it will even work out of the box for any purpose? You pay good money and can't even get some assurance that it will function. Naturally, the license isn't printed on the outside of the packaging, and you must actually make the purchase before even seeing this, but that's another issue.

    Something else that occurred to me: what about when you sell a used PC to someone? You might have tons of software licensed on that box, and provided you aren't keeping a copy of any of it, you shouldn't be required by law to format the drive and sell them a doorstop, should you?

    I've often wondered about the legality of some of these EULAs (like the FrontPage thing discussed a few days ago). We're always discussing the GPL and other open-source licenses, debating whether or not they'd hold up in court; commercial software licenses haven't really been tested in courts much (to my knowledge) either.

    I suspect the GPL might actually have a bit more legal ground than most EULAs, simply because of the way the license is presented to the end user. A box pops up, requiring you to click 'Accept', and most people don't read them. The GPL is in the top of every source file, and it's not easily over-looked. Plus developers should have a bit more responsibility than end-users when it comes to using someone else's code...

    In my opinion, if commercial software vendors want my business, some of these clauses must go and they must take some accountability (eg, MS is not liable in any way for CodeRed/Nimda/etc thanks to these EULAs). Otherwise, I have no reason to purchase software when I can get much more favorable terms -- for free. The GPL is strict, but from an end-user perspective (and for any responsible developer) it's great.

    --
    NGWave - Fast Sound Editor for Windows
  157. Or both ways by Mr.+Jaggers · · Score: 1

    Consider this; acquitted of criminal copyright fraud, but held responsible for damages due to contract violation in civil court.

    Which of the two do you thing M$ would actively pursue? On one side, you must defend yourself in a case you will probably win (still not cheap). On the other side, Bill takes you to the cleaners...

    --

    When I grow up, I want to have Christopher Walken hair.
  158. I would guess... by MacGod · · Score: 1

    I would assume that it's because of the copyability of software. I know computer stores won't let you return non-defective software once it's opened. Re-selling the software amounts to the same risk: you could buy it, install it or burn it, then re-sell it. I think this is what the software writers are trying to avoid, although with Disk IMages and high-speed internet access, it's kind of pointless.

    --
    "Reality is merely an illusion, albeit a very persistent one " -Albert Einstein
  159. In my State by nathanst · · Score: 1

    In my state and I would imagine most, if the terms of the lease are read by the consumer after money has changed hands it's not a lease, it's a sale. No lease restrictions may be enacted after money has been accepted by the seller. Microsoft is also a third party in the sale and doesn't really have much say in it, as they have already taken money from the retail store, and other than copywrite have no legal right to the product.

  160. Re:ridiculous. read on... by Anonymous Coward · · Score: 0

    And exactly how is replicating software equivalent to taking your car apart??

    Is there some clause I missed where I have to uninstall spellchecker from word before I sell office?

  161. Selling Licences by os2fan · · Score: 3, Interesting
    Software is like any other copyrighted stuff.

    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.
  162. Not the law. RTF{Statute} by werdna · · Score: 2

    First Sale is codified at 17 U.S.C. section 109. It is available, unfortunately for your theory, only to "the owner of a particular copy or phonorecord lawfully made under this title."

    Show that you own title to the copy, and you're in. Merely being a "consumer," as you say, won't cut it. Unfortunately, you won't be able to in the case of Microsoft software -- your transactional documents will show that you are the licensee to use a copy, not the owner thereof.

  163. Re: WinXP gives proof you agreed to Microsoft by qubezz · · Score: 1

    When I sell my Microsoft software, I can just say, 'oh, I clicked cancel on the EULA and decided to sell it instead.' There's no proof otherwise.

    Maybe Microsoft has seen this hole, and by requiring every copy of Windows XP to be registered with them, has proof that you agreed to their license agreement, and then can prove in a court that you agreed to those terms. hrm...

  164. FLEXlm by Pseudonym · · Score: 2

    FlexLM, the bane of many a sysadmin's life, is very similar.

    A lot of graphics software (e.g. Maya, Photorealistic RenderMan) in particular is licensed with FLEXlm. This form of licensing is particularly badly suited to this kind of product, because a) managing 1000 licences is a logistic nightmare, and b) you tend to only use your "maximum" number of licences during certain peak times (when you get close to delivery).


    --
    sub f{($f)=@_;print"$f(q{$f});";}f(q{sub f{($f)=@_;print"$f(q{$f});";}f});
  165. Microsoft at risk with this model by AmericanInKiev · · Score: 1

    Microsoft needs the corporate buyer, but corporations buy the software their employees can most easily use - so Microsoft needs first to be ubiquitous. (Everyone know Windows.Word/Excell etc . . . )

    So anything they do to stop average people from getting a copy to learn on etc. . . plays against their chief selling point.

  166. Stop bad-mouthing prostitutes, please by njdj · · Score: 1

    MS wants software to be prostitution. They want you to pay each time you use it, and they want the US legal system to be their pimp.

    This is a very poor analogy, because the service which a prostitute provides (in those countries where it's legal, i.e. not the USA) is normally exactly what the customer wanted. Also the market for provision of those services is quite competitive, there are a lot of providers. Prostitutes are more like hairdressers or dentists than software vendors.

    The negative connotations of words like "prostitute" in the USA (and UK to some extent) are just a result of the puritannical traditions of those countries. Lighten up, folks. Girls here get jobs in brothels because they like the work and it pays well. More or less the same reasons programmers become programmers.

  167. Licence reselling by Runt-Abu · · Score: 1

    I have to agree with the comments on reselling licences, last time I checked the company did not make me sign any documentation saying I actually agreed to their licencing terms.

    Additionaly I believe with most software you have to actually use it to read the licence for it, thus nullifying the company's "excuse" of not using the software if you don't agree to the terms.

    --

    GCM d+ s+:+ a- c++ U? P! L E-- W++ NM+ V PS- PE+ Y+ PGP- t 5+ X?+ R+++$ tv+ b+ DI++++ D---- G e
  168. Similiar to books by evilviper · · Score: 1

    When you buy a book, you buy the physical material, as well a limited license to read the text written on the pages. You don't have the right to sell coppies of the text, nor do you have unlimited right to use the text (plagarism comes to mind).

    Now why SHOULD software be any different?

    I can tell you why it IS different.

    It is different because:

    A) It's so much easier to copy software than books. Not that a sheet-fed scanner wouldn't do the trick, just that printing it out would be more expensive than buying the book. Meanwhile CD-Rs cost 15 cents/piece, and bandwidth is even less expensive.

    B) Because they can! I happen to recall a coin-operated bible in an older Simpsons episode. If it was technically possible for book manufacturers to put such harsh limits on your use of their books, they would. Fortunately for us all, there was a time when congress gave a crap about the people, and in turn created fair-use laws.

    --
    Slashdot gets worse every day... Pipedot: News for nerds, without the corporate slant
  169. German Law by phooka.de · · Score: 2, Insightful

    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.

  170. In Germany it is legal by Anonymous Coward · · Score: 0

    There was a court ruling that the resale of software (even Microsoft OEM software) is legal. One large german dealer even had a large event where he offered cash for used copies of Windows 98 (didn't slashdot report on this?).

  171. What if you selected NO by Fred+Fletcher · · Score: 2, Insightful

    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.

  172. Re:Not the law. RTF{Statute} by elgardo · · Score: 1

    Actually, the transactional document is the receipt you got from the store. This document says that you bought a physical copy. It doesn't say that you licensed the software contained therein.

  173. The DMCA is much more than you say by alienmole · · Score: 2
    The DMCA is a revision to copyright law that prohibits trafficking in circumvention devices.

    The DMCA also deals with fair use of digital materials; service provider liability and the takedown clause that allows copyright holders to shut down web sites that they believe violate their copyright, without trial or prior review; protection of copyright management information; digital "performances"; allowing copying related to maintenance and repair of computers; and more. The DMCA consists of five separate "Titles" each dealing with a different area, of which anti-circumvention is only one. See this summary, for example.

    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.

    Pot, meet kettle!

    1. Re:The DMCA is much more than you say by Masturbating+Vulcan · · Score: -1, Troll

      The DMCA can contain 100 Titles if need be, it still does not address the original posters' topic of the enforcability of End User License Agreements. Your comment is illogical, which makes you A RETARDED SHITSTREAK COCKSUCKER! GO FUCK A DOG!

      Please be more vigilant.

      --
      I DO NOT GET EMOTIONAL ABOUT ANYTHING!!!!!!!!!!!!!!!
    2. Re:The DMCA is much more than you say by alienmole · · Score: 0, Flamebait
      Your comment is illogical

      Perhaps the logical faculties of a Masturbating Vulcan are impaired, so I'll explain it to you:

      1. You criticized someone for misrepresenting the DMCA.
      2. You misrepresented the DMCA yourself.
      3. I simply pointed out this inconsistency

      You're correct in noting that this has nothing to do with the original poster's topic, so there's hope for your logical faculties yet. However, that doesn't negate your error. You are still guilty of doing what you were criticizing someone else for doing, in the very same message.

      You have a nice day now.

    3. Re:The DMCA is much more than you say by Masturbating+Vulcan · · Score: -1

      Your comment is illogical and NOT FUNNY you cocksucker!!

      --
      I DO NOT GET EMOTIONAL ABOUT ANYTHING!!!!!!!!!!!!!!!
    4. Re:The DMCA is much more than you say by alienmole · · Score: 2
      Your comment is illogical and NOT FUNNY

      It wasn't intended to be funny. Are you OK? You seem a little on edge. Take a deep breath, and stop being so hard on yourself...

  174. Well. by mindstrm · · Score: 2

    You do good on the soapbox.. feel free to borrow it anytime!

    It strikes me as odd, sometimes, how little people understand their rights as far as returning products.

    As far as the law goes (in general, dunno about each state)... a store is not really required to have ANY return policy. A sale is a sale is a sale.. with the following exception:
    A product must be fit for purposes sold.. there cannot be deception. If the salesman tells you 'this pipe-bender, sir, can bend pipe up to 3/4 inch thick' and you try, and it can't.. then they MUST take it back, as they sold it fraudulently. Similarly, with software....
    If a store clerk tells you 'Sir, this works under windows 2000' and it doesn't.. they MUST take it back, they have no choice.

    But as for stores simply accepting returns.. it's really a courtesy that they do so at all, in order to please their customers. They could quite legally say 'All sales are final', and as long as they don't deceive people.... not have to take returns, ever.

  175. what about Norton Ghost by pennsol · · Score: 1

    As a comuter tech in the retail end of the spectrum. I use norton ghost to copy customers drive's on a daily basis, for such reasons as possable hardware failure, or just they need more space. Is this a violation of licence agreements?
    As a footnote if i copy say a Gateway harddive which does contain a copy of all the intallation files, as does many other "brand" name computers. Does copying your .cab files to your harddrive violate those agreements as well? does it have to be a CD-rom copy?

    --

    Just Limin' Mon

  176. Re:Not the law. RTF{Statute} by werdna · · Score: 2

    Not. ProCD v. Zeidenberg.