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Software Transferability? (or the lack of it)
"I seem to recall hearing stories of courts overturning these schemes; does anybody have any specifics? Cases/judicial opinions, perhaps? I've checked FindLaw, Google, and others, but haven't found anything (haven't found anything upholding them, either...). Have these clauses ever even been to court, or do the companies just depend on FUD to bludgeon the end user into compliance? Anybody with experience, I'd love to hear it. Lawyers, your opinions? (Lawyers, would you be willing to fight one out in court, if given the chance?)"
As many of you may know, the concept of "owning" software is fallacy. You own nothing. What you do posess when you purchase your new piece of commercial software, is a corporate-skewed set of limited-use rights, which are getting more and more limited each day. For those interested, the latest print issue of Wired (October, 2001) has a big "article" on this (see p.170). It attempts to illustrate thru humorous example, what software has been seriously doing for decades.
No one would own (or lease) a car if the contract said, "You must not sell this car, in the event this car is no longer used, send it to the nearest junkyard.", so why is this true for software?
We shouldn't worry about that GPL 'virus'.
Je t'aime Stéphanie
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.
spacefem.com
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.
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.
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.
¦ ©® ±
To take an example from another arena: if I write to one of the media syndicates and get permission to use a Peanuts cartoon in some publication I'm working on, I can't then grant others access to use that cartoon, because I don't own it.
Again, I'm not saying I agree or disagree with this particular way that people use/buy/license software.
car, in the event this car is no longer used, send it to the nearest junkyard.", so
why is this true for software?
It's true for software because the buying public has come to accept it as a condition for using the software licenses that they purchase. Obviously cars aren't software, particularly since when you buy a car, you buy the car. In a way, of course, a lease is like a license to use the car and, I suppose, the lessor could put that language in the contract, but the buying public wouldn't accept it. The bottom line is the subject line.
-h-
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.
You end up licensing your dishwasher
Your hamburger comes with an EULA
Opus: the Swiss army knife of audio codec
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...
"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
So that explains why I feel so dirty after buying software!
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.
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.
If you sold a car you were leasing you would be tossed in jail for grand theft auto, it's sort of implicit in the idea of lease. Which is why MS and others are moving (back to) a software leasing model.
Best Slashdot Co
We could call it a new DMCA: Deny Monopolistic Corporations from being Assholes. :)
"I am a cipher, a cipher, wrapped in an enigma, smothered in secret sauce" -Jimmy James
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.
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
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.
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!
It is true that software has a more ephemeral quality than other products of our modern civilization, but the trend is clear. The Music, Publishing, Broadcast, Cable and Movie industries are taking notes, and getting more viscous and devious in their pursuit of squeezing every possible dime of revenue from the public.
What make this all the more insidious and timely is the tracking and invasion of privacy most of these schemes require to enforce. Encryption is a bandaid that will never work without tracking and verification. If companies offered a good product at a fair price that we had complete control of how we wished to use these products, software pirates, cable tappers, CD rippers, would be seen as petty criminals instead of modern day robinhoods.
Mark my words in the wake of the WTC bombings, media companies of all types will jump on the band wagon of information tracking, where no individual may view or own any type of information without someone, somewhere, knowing what they are looking at.
It doesn't get much more Orwellian than this.
Letter To Iran
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.
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
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
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
Oh, but record labels and book publishers would LOVE to limit sales of used product. There was recently a push to prevent music stores from carrying used CDs; see this article. Garth Brooks, the country singer, was particularly outraged that his CDs could be resold without his getting a cut of the profit.
Further, book publishers have recently been getting miffed that public libraries let people read books without having to buy them, and are looking to set higher prices for public libraries, or worse yet, to ban libraries from making certain books available. (I'm having a problem finding a reference for this.)
Only as long as you didn't buy an upgrade licensed version of Office 97, or Office 2K. If you bought an upgrade, then you still only have the one license, and you can't (legally) sell or give away your previous version.
A computer once beat me at chess, but it was no match for me at kick boxing -- Emo Phillips
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.
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
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
OK, last week I went down to the DMV and bought a license to drive. Now I have the "right" to drive on the roads. This week I decide I don't want to drive any more so I sell the license to Joe Blow down the street.
Does Joe Blow now have the "right" to drive?
Software licenses work exactly the same way. You have the right to use, but not to transfer the right to use.
I was looking for a new free popmail service and came across Juno. I, living in Canada, had to enter the address of some hotel in Atlanta, Georgia in order to download the software due to some new encryption export laws or something. Anyway, I decided to actually read the license agreement this time and this is some of what I found in it (I especially like how it is essentially a violation to not have your computer on and connected to the net all of the time):
1.2. Please refer to your initial signup communications for specific information with respect to your service level. Juno may discontinue or alter any service level or aspect of the Service at any time, without notice, without liability and in Juno's sole discretion.
2. Your Obligations
2.4. You expressly permit and authorize Juno (and such third parties as may be authorized by Juno, subject to the Privacy Statement) to furnish you, electronically when you use the Service or by any other means selected by Juno, information prepared by Juno or by (or on behalf of) other entities, including advertising information and solicitations. You acknowledge that any such information, advertisements and solicitations are an inseparable part of the Service, and you understand and agree that the furnishing of such information, advertisements and solicitations to you cannot be terminated unless the Service is also terminated. Some third parties furnishing you with advertisements and solicitations through the Service may permit you to "opt out" of receiving such communications from them, in which case you can do so by following the instructions they provide. However, Juno is not responsible for any such party's failure to comply with its own "opt out" policies, nor does Juno endorse the views or content of any third party advertisements or solicitations. All such advertisements and solicitations will be understood to be "requested" by you through the act of using the Service, and each time you use your account reaffirms such request. Juno's policies relating to privacy and the collection and use of subscriber information are set forth in the Privacy Statement, which forms an integral part of this Agreement.
2.5. You expressly permit and authorize Juno to (i) download to your computer one or more pieces of software (the "Computational Software") designed to perform computations, which may be unrelated to the operation of the Service, on behalf of Juno (or on behalf of such third parties as may be authorized by Juno, subject to the Privacy Statement), (ii) run the Computational Software on your computer to perform and store the results of such computations, and (iii) upload such results to Juno's central computers during a subsequent connection, whether initiated by you in the course of using the Service or by the Computational Software as further described below. In connection with downloading and running the Computational Software, Juno may require you to leave your computer turned on at all times, and may replace the "screen saver" software that runs on your computer while the computer is turned on but you are not using it. The screen saver software installed by Juno, which may display advertisements or other images chosen by Juno, is an integral part of the Computational Software and you agree not to take any action to disable or interfere with the operation of either the screen saver software or any other component of the Computational Software. Juno may set different requirements for different subscribers with respect to the Computational Software (including without limitation whether use of the Computational Software is required and the volume of computations required to be performed) depending on service level or other factors we determine. You agree that, as between you and Juno, you shall be responsible for any costs or expenses resulting from the continuous operation of your computer, including without limitation any associated charges for electricity, and that you shall have sole responsibility for any maintenance or technical issues that might result from such continuous operation. You agree that, as between you and Juno, Juno shall have sole rights to the results of any computations performed by the Computational Software, including without limitation any revenues or intellectual property generated directly or indirectly as a result of such computations, without further compensation to you. If your usage of the Service is infrequent, Juno's ability to obtain the results of completed computations may be impaired. Consequently, you expressly permit and authorize Juno to initiate a telephone connection from your computer to Juno's central computers using a dial-in telephone number you have previously selected for accessing the Service; Juno agrees that it shall exercise such right only to the extent necessary, as determined in Juno's sole discretion, to upload the results of completed computations to Juno in a timely fashion; and you agree that, as between you and Juno, you shall be responsible for any costs and expenses (including without limitation any applicable telephone charges) resulting from the foregoing. Any software, data, or other materials downloaded to your computer in connection with the activities described in this Section 2.5 will not be used to collect personal Identifier Information (as defined in the Privacy Statement) from your computer and will comply with Juno's privacy policies, as reflected in the Privacy Statement. You agree that you will not attempt to reverse engineer any such software, data, or other materials or transfer or disclose any such software, data, or other materials, or the results of any such computations, to any third party. You acknowledge that your compliance with the requirements of this Section 2.5 may be considered by Juno to be an inseparable part of the Service, and that any interference with the operation of the Computational Software (including, but not limited to, any failure to leave your computer turned on to whatever extent Juno requires of subscribers at your service level) may result in termination or limitation of your use of the Service. You acknowledge that Section 6 of this Agreement shall expressly apply to the activities described in this Section 2.5.
slashdot shenanigans
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.
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.
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.
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?
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.
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
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
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.
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.
An article about the Uniform Computer Information Transactions Act
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...
Software licenses work exactly the same way. You have the right to use, but not to transfer the right to use
No they don't.
Reboot macht Frei.
...is Microsoft's real response to this. They know they're on shaky legal ground with this whole thing, and the only way to get off it and onto something solid is to not sell any licenses. And the only way to stay in business after they stop selling licenses doing that would be to sell subscriptions to use their software.
After this changeover happens (when/if it happens) they'll probably provide freely downloadable thin clients for Word, Excel, etc, and you'll have to pay whatever they determine the market will bear (because even Microsoft has to consider what the market will bear, whether they are correct or not is another topic) per month, per product you want to use.
In this situation there's no tranferrable license you need to worry about because you give away the only software you distribute to anyone for free, as it's useless to those who don't subscribe. You control the only software with any functionality and no one other than yourself will possess that software. Anyone else running a server that allows people to use Word that you haven't specifically allowed couldn't have bought it anywhere because you don't sell it, then you're well within your rights to throw them in jail for theft.
IMHO one of the great things about ebay is that it brings capitalism to the masses. Millions of people all over the world can now now make their lives more efficient (in an economic sense) by trading even the most trivial things that they own. It's a grand bazaar where everyone profits. So it's not surprising that we see EULAs in conflict with the philosophy of ebay.
EULAs are anti-capitalist. They are the product of a lobby economy - one where people who bribe politicians get to determine where resources in an economy should go.
-- SIGFPE
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?
Timeo idiotikOS et dona ferentes
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.
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!
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.
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.
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.
... could pull it off you'd hear accounts like:
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
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.
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.
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
... And there will be a big boom in used CDs if/when Universal's copy-protected shite hits the stores. Good!
sulli
RTFJ.
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 ?
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.
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
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?
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"
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
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.
(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? --
I think the public's perception with regard to software is more along these lines:
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."
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.
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.
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.
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?
Novel theory: Modern Man evolved from psychopath
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 $100K/hour. I'd expect that in that case (1) you won't use an OS that has such vulnerabilities, and (2) you ought to be negotiating the license and warranty terms with the vendors rather than relying on the warranty that's sufficient for Joe Sixpack's porno browser.
The kicker is that having the M$ "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.
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
apt-get transfer does nothing for me.
Friends don't help friends install M$ junk.
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
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.
...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
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.
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.
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});
Over here, they went to court once or twice. However, even OEM-Windows may be sold without computers.
Here, Software is a product and once it left microsoft's hands, whoever owns it may sell it in any way he likes.
Don't have the details, though.
What if you selected NO on the EULA? I have not found a store that will let you return software if you read the GD EULA and find it to be a unacceptable. Seems like it may be a hard agreement to enforce since you can not refuse to buy the product if you do not like the agreement cause you can not read the agreement unless you buy the product and then it is too late to return.
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.
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!
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.
Not. ProCD v. Zeidenberg.