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U.S. Court Ruling Nixes EULA Sales Restrictions
Raziel writes: "The Register is reporting in this article that a district court has ruled in favour of "software users that wish to extricate themselves from restrictive software licenses". The case in question is Adobe vs Softman, and in its ruling, the District of California seems to vacate Adobe's claims of "irrepairable damage" caused by the resale of Adobe products without forcing the use of Adobe's registration process. The full ruling is available in PDF format here. Any chance of a precedent here?" You can also read the Don Marti piece piece that sparked this discussion.
It's about time they finally made a sensible decision on these EULA's that state you can't sell off software you bought.
Hopefully this sets some sort of precedent so that others can benefit from this.
Does this mean that software is getting more tangible as in assets? Assets that are saleable?
By the way, I thought it funny that information on this decision against Adobe was available in PDF Format... heh.
Codifex Maximus ~ In search of... a shorter sig.
ruling against adobe.. in adobe pdf format.
From the Register article:
The judge, in the case Adobe vs Softman heard in the Central District of California, has ruled that consumers can resell bundled software, no matter what the EULA, or End User License Agreement, stipulates.
So, if this ruling is upheld by the Supreme Court, does that mean that Ebay users, harassed by Microsoft and others for reselling software, would be able to (1) Resell their software and (2) Sue the software publisher for not allowing them to resell?
Bush Lies Watch
Does this decision have any impact on upgrading software and getting price breaks?
For example, I upgrade from Crapsoft 3.1 by buying Crapsoft 4.0 and get a rebate on Crapsoft 4.0 because I have a 3.1 UPC symbol.
So can I sell Crapsoft 3.1 to someone because I am no longer using it and I made two purchases and am only using one?
Jesus saves....And takes 1/2 damage.
The article and ruling are worded such that the ruling only applies to unused software. IE you can't decide a week after using XP that you don't like it and sell it (If the EULA doesn't permit that) But if you never installed it you are fine.
What if the software is installed by default. Software that has a clickthrough or registration screen built in on first use will probably still be covered, but other stuff may not be.
I have always considered shrinkwrap software (bundled or not) my property to sell to someone else at my discretion. If I pay $200 for a piece of shrinkwrapped software, I do not differentiate between the physical media and the intellectual property. Maybe I am wrong, but physical poessesion is 9/10ths of the law.
Microsoft has some of the most poorly written and restrictive EULAs in existence. Take a look at the one from Age of Empires for example. They are so worried about people reverse engineering their source code, it is ridiculous. Simply downloading a patch from their wrbsite brings up a EULA.
Unbelievable.
consumers should have the same rights they'd enjoy under existing copyright legislation when buying a CD or a book. They can't make copies, but they can resell what they own.
Makes sensee to me, but the EUlA makes it clear that they don't own anything!
This one will go to the Supreme Court.
IMHO we should definately have the right to re-sell software, once it is paid for...though copies of software bundled onto burnt cds might be pushing it...mayhap we should start including titles of ownership to be signed over with expensive software :) or at least a way to transfer registration...
Walk with Music;
But still funny.
If we get more rulings like this I wonder if it will be legal to resell Windows copies that are marked "for new pcs only".
Also it would be nice if the courts realized how stupid it is that a customer pays for a license before they have the chance to read the EULA, and that most stores don't accept returns on opened software. So as it stands you have to buy the software before you can decide if you want to agree to the EULA, and if you don't agree, tough.
//m
Hmmm ... the PDF I read didn't say one bad thing about Adobe.
Remember that California hasn't passed the UCITA, the law which Maryland and Virginia ratified last year. This makes all consumers subject to all provisions of software licenses, whether they be shrinkwrap licenses or licenses you agree to by visiting a web page. This is, at best, a precedent for the citizens of California. But since California has tried out-of-state citizens (in the DeCSS case), Maryland can just as easily try out-out-state California residents for violating the UCITA.
For clarification, I've attached this flowchart which demonstrates the relationship between the corporations of America (Adobe, Sony, the RIAA, the WTO, etc.) and the people of America. The people are represented at the bottom; the Corporations at the top.
Please, don't keep thinking you can step out of line.
If guns kill people, then CmdrTaco's keyboard misspells words.
This might be more of a reason for software companies to sell their product as a service which is valid for a set amount of time then as a product which is good for use indefinetly.
"Karma can only be portioned out by the cosmos." -Homer Simpson
the case in question is Adobe vs Softman, . . . The full ruling is available in PDF format here.
This ruling seems to phrased as to only apply to "purchased" software. Any word/opinions on how it effects either downloaded, or OS s/w?
Also any ideas how we can get a change a venue for Skylarov's case to this judge's court?
Work for Change & GET PAID!
I figure that the law will be applied to used software as well. They judge has said that once you own it, you own it. Therefore you can sell it used. Just like a book. I can read a book and sell it.
--- RFC 1149 Compliant.
Hopefully this means that any 'Non-transferrable' item, whether it be software, airplane tickets, or sports arena tickets, will become freer in the true sense of the word.
I can resell a book. I can resell my clothes. But why can't I resell my Britney Spears tickets?
You only have to follow the EULA if you install the software. You can only read the EULA when you install the software. Anyone else see something weird here?
One way around clicks thru etc that will allow you to make a few $'s of MS et al is to replace the harddrive when you get it and sell it on Ebay with all the stuff.
Help fight continental drift.
According to the judge:
If you put your money down and walked away with a CD, you bought that copy, EULA or no EULA
So, if you bought that copy, and you own it, it is yours. And according to property law, I can do what I want with what I own, including disassemble it. Correct? So therefore, I can defeat any copy protectoin schemes on the software I buy. Correct? Does this not contradict the DMCA? Assuming a DVD is software, this makes DeCSS totally legit. Hopefully the SUpreme Court will uphold this ruling, and it can be used in DMCA cases!
So would this ruling also protect those people that want to sell their bundled copies of Windows or donate them to charity? If so, this could be an even more significant ruling than it appears, as MS's business strategy relies on those copies being worthless to get people to buy more licenses or buy newer versions than they want.
"Reality is just a convenient measure of complexity" -Alvy Ray Smith
Now I can fire up FrontPage and make sport of Microsoft! Ha! Ants do have rights!
A feeling of having made the same mistake before: Deja Foobar
This will never last. Microsoft will immediately sick their fleet of lawyers on anyone trying to resell their bundled copy of XP on ebay. And they'll win. Remember that our justice system is bought and sold just like all good capitalist institutions.
Guvegrra?
does this mean that now we can sell our pld copies of windows!!!!! and how about returning opened software?
I am the Alpha and the Omega-3
that this was taken up and followed through in court. I hope it goes all the way to the Supreme Court, and that all judges will be similarly enlightened. We need clear and hopefully pro-consumer verdicts to clarify all this licensing muddle. When did you last fully read AND understand all license terms by which you are supposedly bound (other than perhaps some of the OS licenses)?
Christoph
This ruling is very good to see, but we should not get our hopes up too much. I can't see the text of the ruling (slashdotted already I guess) but the idea here was (I gather) that EULAs didn't apply because the buyers never installed or used the software, so never got the point of clicking through a license.
This is extremely important for even though the Don Marti article stated the judge determined that "if it looks like a sale it is a sale, EULA notwithstanding". The ones who sold the Adobe software hadn't seen or agreed to the EULA at any point.
The problem is contract law - if the software vendor (Microsoft for example) can point out that you DID click "I Agree" to their EULA then the game is basically over. That EULA will be upheld as a contract between you and the vendor - and in a contract you can surrender any (almost) rights you want to. Including agreeing to "license" the software instead of "buying" it, surrendering the right to resell it, reverse engineer it, etc.
As far as I can see it, reselling your old Windows CDs will still be contested by Microsoft. But, on the bright side, now at least you can sell the Windows CD that came with your laptop as you wipe the hard drive to install Red Hat.
The decision has its limitations, being merely a vacation of an earlier judgement. Given the powerful interests of the shrinkwrap software industry, it's likely to be appealed all the way to the Supreme Court.
Rather than completely invalidating the DMCA, this ruling is a lot more likely to be one of the many holes being poked in the whole 'intellectual property' balloon.
IANAL, but from what I read, what it does do is more or less state that data... software in particular... is not immune from first sale doctrine. You're breaking copyright law if you make copies and give them away. You're not breaking the law if you decide to sell your extra legit Windows ME/2000/XP CDs after you install Linux.
This has important ramifications, because there is a very minor difference between applications and data of any other kind. It's not precident setting in and of itself, but it could be used to help set a larger precident.
The next Slashdot story will be ready soon, but subscribers can beat the rush and slashdot the links early!
That said, it doesn't matter anyway, because with the deep pockets on the other side, they'll appeal until the get to a judge that is more "open" to their side.
Vote Quimby.
Take Dell and Compaq, the kings of bundled software crap, either one of two things will happen: all software will be installed with no CD for backup or it will become like the distros of the OS, where the installer can only be used on "your computer".
I got in trouble for donating 500 licences of MS Office 98, and MS windows that had been bundled with our machines when we changed to all open source. Apparently the IRS does not consider donation of microsoft software as a charitable contributuion of any value.
In the non-bundled reatil world, hasn't this been happening a EB and Software etc. for ages? I would beat a game, trade it for a little cash or a credit at the store. I guess when you do this online there is no way to know weather the software is on the original media or not.
"Get them before they get....
Off to Ebay I go!
For Sale - One copy of Windows 98 - complete orginal with box, disk, documentation.
Look at this - the documentation re: a license disagreement with Adobe is presented in PDF!
My office has been taken over by iPod people.
If you buy a copy of Adobe Photoshop, don't open it, and want to resell it, I'm right there with you. If you buy an Adobe package, take what you want from it, and sell the rest, I'm not down with that. This should be a case of standard rules applying to software as well as regular goods.
"Information wants to be expensive" - Stewart Brand, the same guy who said "Information wants to be free"
because if this says what I think it says, we OWN the software. so that means I can sue MS for impeading on my ability to sell my old copy of XP because it is unusable on another PC.....
Death to forced ID-ing!!!!
also how far does this go? If I own a piece of software as a product, a tangible object, do I get all rights to that spesific instance that I bought?
I am the Alpha and the Omega-3
This isn't as much "normalization" as it is "don't take so many drugs when you're designing tables."
Software manufacturers have always been trying to protect their software from free market forces by implementing highly restrictive "license agreements". These agreements are an attempt to control their product in the marketplace - clearly in disrespect to the concept of a free economy.
Many software manufacturers want to eliminate any resale market in order to artificially raise demand for their product. It's like GM saying that you can't resell an old GM car, or a GM engine from your old rusted out Nova. What's to preventent GM from creating such restricive licensing arrangements? The Law, of course.
A free economy should not only be free from governmental restrictions, but also from industry restrictions. Industry is, surprisingly, the most significant regulatory body in the US government.
Further laws need to be passed to prevent needless restrictions by industry trade groups on free trade.
For someone to have a tool of their own making used against them (which they released in an attempt to gain a measure of control over this area of software) in the process of removing their control over tools of their own making is a perfect example of irony.
Ever since people pointed out that the examples in "Isn't it Ironic?" aren't actually ironic, a peculiar breed of sub-moronic language nazi has sprung up that attacks all reference to the concept, sneering down on people who so boorishly "misuse" the word, without actually appearing to have the faintest clue of what irony is.
So please stop standing on your head to look down at others. That direction isn't actually down.
Interesting... I thought Microsoft managed to 'donate' thousands of CDs costing $0.50 each to manufacture and write it off against tax at the full retail price of that software. If the IRS counts it as tax-deductible when Microsoft does it, why is the ruling any different when another party makes the same donation?
-- Ed Avis ed@membled.com
Wow, software becoming a resalable good! Maybe if Microsoft settles "for the children" the schools will be able to sell the software they get and buy something they can use, like science books that discuss new topics like evolution and the fact that disease is not caused by evil spirits (Offer void in KS).
Why can't I moderate something "Wrong" or at least "Grossly Misinformed"?
You can't manufacture a patented invention, and you can't duplicate a copyrighted expression. (Although you can talk about a patented invention, or use and pass on the knowledge in a copyrighted expression.)
if the transaction has the form of a sale, it's a sale.
Best Slashdot Co
The pdf is still slash-dotted...
Has anyone mirrored it yet?
IANAL, but I have played one in a courtroom :-) so take what I say with a grain of salt. That said, I notice a lot of people talking about "precedent" and making all sorts of claims as to how this should apply to circumstances other than this particular case. Just two things to consider:
First, precedent is just the statement that this is the first time a given issue of previously unclear legal status has been decided; but just because a court has set precedent with a decision doesn't mean that it will decide a case of _similar_ merits the same way in the future (precedents don't extend beyond the circumstances outlined in the decision itself). So, don't assume you can interpret this decision to mean that all SIMILAR circumstances will be decided the same way, even by this same court! It is also NOT the case that all sweeping decisions set precedent (for example, if the Supreme Court does not accept a case, it doesn't mean that the decision it refused to reconsider becomes precedent for the entire country).
Second, consider the jurisdiction. EVEN IF this decision sets a sweeping precedent and makes a previously unclear legal issue crystal clear in all similar cases, it only applies within the jurisdiction of the court that rendered the decision (here, the Central District of California, one of 94 U.S. District Court jurisdictions). The precedent doesn't apply in ANY other jurisdiction (although it is often a powerful argument that can sway judges in other jurisdictions); it is often the case that appeals to higher courts (particularly the Supreme Court) are accepted based on CONFLICTING precedent setting cases from different jurisdictions. So, don't assume that this decision will protect you if you live in some other part of the country, EVEN IF you are in exactly the same situation and find yourself in exactly the same lawsuit.
I read most of the decision a couple of weeks ago. Indeed, a ray of enlightenment seems to have struck the California courts.
Adobe complained that Softman wasn't allowed to unbundle the Adobe Collection, as that was a violation of their license. According to my (inexpert) reading, the court applied what I call the "duck test" to the transaction that took place between Adobe and Softman: If it looks like a sale and walks like a sale and quacks like a sale then, no matter how persistently and shrilly you call it a "license," it's a sale, because that's the behavior you engaged in.
The court stopped short of stating that the EULA was non-binding. Since Softman never installed the software (triggering the EULA activation clauses), there was no need for the court to address this point. So whether EULAs are binding is still an open question. It may be possible to argue that, if one purchases the software but then refuses the EULA, the terms of the earlier sale apply. That means you would get to use your software, no matter what the EULA says (U.S.C. 17, Sec. 117(a)).
Perhaps Slashdot user Werdna would care to chime in with a more expert analysis?
There is the danger that software industry lobbyists will now lean harder on the California legislature to get UCITA rammed through. So if you're a Californian, get on the horn to your state representative and tell them, as a consumer, you're very happy with the court decision, and that UCITA would undo their good work and should be avoided.
Schwab
Editor, A1-AAA AmeriCaptions
Here's the ruling.
Everything I have seen says: "Not Labeled for individual sale". I think this is to protect the end-user, not restrict the seller. This is typically seen on food, since the FDA (government) has strict laws on nutriational labeling.
If I buy a new Car and want to totally strip it and sell the pieces, there is no law (or agreement with the car company) that says I can not do that.
Looking for any old 8-bit Heathkit/Zenith software/hardware - http://heathkit.garlanger.com
This is great! Until software manufacturers decide that in order to purchase their software you will have to "click through" it at the store by prohibiting sale without a EULA at the checkout line. Simple to implement and a mere formalilty, like signing your credit card.
http://cincyboys.blogspot.com/ Everything Cincinnati. Including the word 'Finnih'
The judge, in the case Adobe vs Softman heard in the Central District of California, has ruled that consumers can resell bundled software, no matter what the EULA, or End User License Agreement, stipulates.
So does this mean we can resell GPLed software without distributing the source code?
ok then your [sic] infringing on my copyright! Could you as [sic] me next time before STEALING my comments for your own?
the ultimate catch 22 :)
I haven't read that back of a ticket lately, but I seem to remember that most of what I did see were more in the line of federal regulations. Not something the airlines were surprising you with.
Nothing about not being able to disparage the airlines, or figure out how the airplane works, or similar things to what people are stuck with on software EULAs.
whoohoo now I can sell my unused shrinkwrapped Windows 2000 and XP CDs on Ebay without them ending the auctions prematurely for copyright violations!
Apparently the IRS does not consider donation of microsoft software as a charitable contributuion of any value. neither would I =)
In order for any of the licenses to be valid at all, they company could not supply anything physical with the software. Because if i were to damage, or break, or throw away the DVD, or CD, or box, or manuals, i would be breakign the law. As i am only licensed to use those items, and I don't own them. So if I were to destroy or break, or in any way damage the items provided with the software, it owul dbe destruction of property.
I haven't looked at XP yet, but as frontline support for 9x/ME, I know for a fact that the EULA gave the purchaser the rights to uninstall the product and transfer the license to someone else. The same applied to the new licensee, and so on, and so forth.
Nevertheless, this a ruling in favor of consumers. However, the Linux way has always been to simply not use software that pulls this kind of stuff and use your own stuff (aka Isolationistism).
IANAL, but this obviously doesn't have anything to do with copyright law. You can't resell copies of this software or otherwise infringe on their copyrights any more than you ever could. The GPL gives you rights to copy above and beyond copyright law, and when used it is the only source of those additional rights, so you follow the rules or don't play.
This ruling would just mean that you could go out and resell that RedHat or Debian CD you bought. And, gee, guess what... you already could. ;-)
Don't think of it as a flame---it's more like an argument that does 3d6 fire damage
U did not purchase the software you purchased a package which included software. It is different then you walking out to the store and purchasing an unpackaged piece of software. This is akin to you buying a bundle of books for $40 where if you bought the books seperatly it would cost $100.
Silly Rabbit...Sig's are for kids.
Wow, sign this judge up for any and all upcoming RIAA/MPAA litigation. There just may possibly be hope for us yet.
Planning to be moderated ± 1: Bad Pun.
Microsoft will loose money, how many people are going to sell on their unwanted copies of windows?
This must not be allowed to happen. Microsoft need money to give on inoviating and giving us world class software.
Thank God microsoft are allowed to give away 1 billion dollars to schools - thus recoping the costs later through licensing fees and wiping out Apple.
This is one area where I agree with the AIP crowd. Why? Because if we are to carry the analogy of physical property into the IP realm (IMHO, the sanest way to deal with IP sold directly to consumers) we *must* allow resale, including "parting out" the components.
To do otherwise would be like GM saying that you can't put a new engine in your car. I'd say more, but I need to run down to the local warehouse, stock up on OEM Windows, and hit eBay before the warehouse guy realizes. :)
(yes, I know OEM doesn't come with a support contract, I know it's going to be appealed, yada yada yada, lighten up. OK?)
For all intensive purposes, "whom" is no longer a word. That begs the question, "who cares"?
Sorry, but that misspeeling bugs the fsck out of me.
See subject. The GPL doesn't govern (or pretend to govern) the end user, but rather anyone who tries to redistribute (either as-is or in a modified work). That's why if you don't accept the GPL your fallback is standard copyright law (which generally won't allow even what redistribution the GPL does).
My Coke bottle here says
Not Intended for Individual Resale.
I'm not sure how this is different, but it doesn't seem to be for the consumer...
Here's a scary thought...
:)
What if all these court rulings continue to frustrate MS and Co.'s attempts at stopping piracy, etc to the point where they simply stop selling software retail, AND not include install CDs with new computers. Follow me...
This would at first seem odd - why would they do this? Well here's the theory:
1) mfr stops selling install CDs and retail
2) Joe buys PC with preinstalled software
3) Joe screws up preinstalled software
4) Joe has no installation CD
5) Joe takes PC back to service center
6) $$ for svc center to reinstall
7) Svc ctr pays $$ to mfgr/publisher for new license
or
1) Joe has Crapware 2
2) Joe wants Crapware 3
3) Joe takes PC to svc cter, and has svc ctr install Crapware 3
4) Svc Ctr pays $$ to mfgr of Crapware 3
In effect, the licensing issue is now handled completely at the "service center", and is no longer in the hands of the end user.
In a day and age that everyone uses M$ products this would literally *suck*...but people *would* do it. They do it now already! (how many average folks out there know how to install Windows? Why does Gateway have end user support?) From the manufacturer's point of view, it would prevent almost all forms of piracy, and there is nothing illegal about it at all. I have knowledge that this scheme is actually being reviewed and discussed by some major players out there.
(Granted people could still swap and copy harddrives, but thats a real pain if you only want a copy of, say, Adobe Illustrator)
Smart folks would use Linux anyway
The main difference with a plane ticket is that it represents a Contract for future service (the plane trip). In many cases, unless neted at time of sale, you may get a refund on the ticket if you do not agree to its terms of use. Software purchase is not a contract for a future service, it is an actual physical rendition of a copyrighted work, therefore the right of first sale applies.(IANAL, etc ...)
Funny. You tried donating non-existing software? (hint: Office 98 never existed for the Windows platform)
he also didnt say PC either, he said windows (for the pc obviousely) and office 98? what he cant have macs too?
"The case in question is Adobe vs Softman..."
"The full ruling is available in PDF format here."
Was that intentionally?
That analogy doesn't really wash. If I buy a bundle of books for $40 that seperately cost $100, the publisher can't require that I KEEP all the books, and that the books must ALWAYS stay together. I'm allowed to throw half of them away, if I don't need them, or sell them, or give them to friends.
Soylent Green, Serving people since 1989
And here's how:
Person A downloads the GPLed software, makes whatever changes he wants to. He sells this software to Person B, along with the full source code; thus he is complying with the GPL. He doesn't have to give the source code to anyone but person B, because he's not distributing binaries to anyone but person B.
Person B then resells each copy of the software, without source code. He is not complying with the GPL, but that's okay, because he didn't agree to it. He is just exercising first sale rights that copyright law gives him.
The end result? Both people make money, both are obeying the law... but the spirit of the GPL gets raped.
I am (obviously) not a lawyer, but it seems like a legitimate scam to me.
You know, I normally avoid making a comment like this, but it's just disheartening and discouraging to go to the effort to get your links right, format the text of the entire article nicely so the register doesn't get Slashdotted, only to have the very same submission rejected.
:-(
It'd be nice to know who rejected one's submissions and why, and yes, I checked my URL's to make sure they worked.
I give up. No point in submitting articles - someone else in the in-group will do it anyway. *shrug*
I got in trouble for donating 500 licences of MS Office 98, and MS windows that had been bundled with our machines when we changed to all open source.
Really? You gave away 500 licenses of Office 98, which only came out on the Macintosh, and 500 lcienses of MS Windows? That seems very unusual. Don't you mean Office 97 or 2000, which were PC versions? I find it odd you have touble remembering the name of the software you gave away when it caused you so much trouble with the IRS.
Hmm. I posted this also, with more of the relevant legal facts. Since mine was rejected
but Hemos' made it, I'll repeat myself here.
This case does not establish precedent. It
is binding only upon the plaintiff and defendent.
The federal district courts (by the way, there
are three federal districts in California) are
considered trial courts. From there, the case can
be appealed to the federal circuit court (9th
circuit includes California), and from there to
the U.S. Supreme Court. Only if the U.S. Supreme
Court agrees to hear the case and returns an
opinion is it binding nationally. If the federal
circuit court upholds the district court's opinion,
it's binding to those federal districts that fall within the circuit.
But not on the states themselves. States are bound
by their own appeals and supreme courts, and by the
U.S. Supreme Court, but not by the federal district or
circuit courts. Think hierarchy.
geek. lawyer.
Selling software, is like giving away tape copies of your latest CD. It only hurts, if they catch you. If you sell it on ebay, with millions of people seeing it, including the companies, then your risking it. Don't want to get into trouble? Put out a classified ad in the newspaper.
Personally I never worried about it. I sold several pieces of my software after I upgraded. To me, when I buy something, it's a *purchase* it's *goods*. I don't rent software, I buy it. I only 'agree' to those EULA to install the program. Once it's in my hands, then I can do as *I* wish, especailly if it helps me. Doesn't mean that I immediately give out free copies to every Tom, Dick or Harry, but I still use it, and consider it goods.
If they want me to stop selling my old software, then give out free copies. The software companies, (or RIAA, MPAA, etc.) can sit on a diskette and spin for all I care.
When you make your customers crimminals, then they'll act as such.
Shadowwalker Delaforge
shadwalk at operamail-REMOVEFORSPAM-.com
20 January 2017: the End of an Error.
This is offtopic, I can't give you the details about the IRS mess, but the main reason was the act of transferring ownership of these software licences could not be classified as a vaild charitable donation. Our IT department has over 15,000 licences for MS products for our six offices, I was asked to help our adobted grade school with donated computer equipment and also consult them on some grant money they had recieved. Since we recently had alot of uninstalled MS software we had bought and no longer needed I transferred ownership of 55 Office 98 suites for the Macs they had, and 230 copies of Office 2K, and 230 copied of Win98 for the donated PC's.
"Get them before they get....
Are companies bound by the EULAs they write?
What is I copy a disk to my Hard drive, change the EULA with a hex editor, then intall it?
Can I write a piece of software with my own EULA, mail it to all the employees at MS then hold MS to the EULA?
perhaps part of a Linux distros EULA should be that the user agrees not to purchase or use or make MS software?
Some of this seems far fetched, but it wouldn't be the first time some company ended up paying a huge price for what some dunder head employee has done.
The Kruger Dunning explains most post on
END-USER LICENSE AGREEMENT FOR Widget Motor Cars
Widget Motor Cars Model A
This End-User License Agreement for Widget Motor Cars ("EULA") is a legal agreement between you (either an individual or an entity) and Widget Corporation for the Widget Motor Cars product identified above, which includes a motor vehicle, printed materials, and may include other material such as seats, mirrors, and windows depending on which options you chose ("CAR"). By starting your new CAR or otherwise using the CAR, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, do not start or use the CAR.
The CAR is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The CAR is licensed, not sold.
1. GRANT OF LICENSE.
This EULA grants you the following limited, revocable, non- exclusive, nontransferable, royalty-free license rights:
1.1 You may use the CAR in for the sole purposes of (a) driving, towing, and riding. You may not use the CAR to drive to a competitors establishment. You may not drive your car to any fueling station not explicitly approved by Widget. You may not repair or modify CAR without explicit approval from Widget. Any repair techniques or modifications you design for CAR will default to ownership by Widget.
1.2 The design internal architecture of the CAR is Widget's confidential information, and you agree not to disclose or provide any CAR operating or repair instructions to any third party without Widget's express written permission therefor. You may disclose the CAR operating and repair instructions only to your household family members or employees who have a need to know in order to accomplish the purposes identified in Section 1.1. Such use of the CAR shall take place solely at your in your presence, and you will have executed appropriate written agreements with such household members or employees sufficient to enable you to comply with the terms of this EULA. You will maintain a list of all household members or employees who have had access to the CAR related information. This provision shall survive the termination or expiration of this EULA.
1.3 The CAR contains consumer grade parts that are not at the level of performance and compatibility of professional grade products. The CAR may not operate correctly, and may need to be substantially modified by Widget. Widget is not obligated to make this or any later modification of the CAR freely available. In the event you discover a design flaw with CAR you may not publish, or disclose the information to anyone but Widget.
1.4 The CAR is designed to last exactly 3 years at which time you are required to return CAR to the place of lease for a replacement. If you do not replace CAR you are required to return CAR to the place of lease for disposal.
1.5 Widget and its suppliers retain title and all ownership rights to the CAR. All rights not expressly granted herein are reserved to Widget.
1.6 You may
2. COPYRIGHT. All rights, title, and copyrights in and to the CAR (including, but not limited to, any parts, paint, belts, and electronics incorporated into the CAR) and any copies of the CAR are owned by Widget or its suppliers. The CAR is protected by copyright laws and international treaty provisions. Therefore, you must treat the CAR like any other copyrighted material.
3. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
3.1 You may not reverse-engineer, repair, or disassemble CAR, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
3.2 Without prejudice to any other rights, Widget may terminate this EULA if you fail to comply with any of its terms and conditions by notifying you in writing. Upon receipt of such notice, you must promptly return the CAR and any part thereof, and certify in writing to Widget that this has been accomplished.
3.3 You may not sell, resell, rent, lease, lend or otherwise transfer for value, the CAR except as expressly allowed by this EULA.
3.4 Widget is not obligated to provide you with technical support, upgrades, repairs, or related information for the CAR ("Support Services") under this EULA. However, if Widget in its sole discretion provides you with any Support Services for the CAR, such material shall be deemed included as part of the CAR, and in any event governed by this EULA unless other terms of use are provided by Widget with such Support Services. Furthermore, Widget is not obligated to continue to make the CAR commercially available, and in no event shall Widget be obligated to provide you with a newer version of the CAR under this EULA. You may from time to time provide suggestions, comments or other feedback to Widget concerning your experience with or use of the CAR ("Feedback"). Both parties agree that all Feedback is and shall be given entirely voluntarily, and Widget shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise. Feedback, even if designated as confidential by you, shall not, absent a separate written agreement, create any confidentiality obligation for Widget, except that Widget will not utilize Feedback in a form that personally identifies you.
4. DISCLAIMER OF WARRANTIES; EXCLUSION OF DAMAGES: LIABILITY LIMITATIONS
4.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Widget AND ITS SUPPLIERS PROVIDE THE CAR, AND ANY (IF ANY) SUPPORT SERVICES RELATED TO THE CAR ("SUPPORT SERVICES"), "AS IS" AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF LACK OF VIRUSES, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, AND OF LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT, ALL WITH REGARD TO THE CAR, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON- INFRINGEMENT, WITH REGARD TO THE CAR. THE ENTIRE RISK AS TO THE QUALITY OF OR ARISING OUT OF USE OR PERFORMANCE OF THE CAR AND SUPPORT SERVICES, IF ANY, REMAINS WITH YOU.
4.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL Widget OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE CAR, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF Widget OR ANY SUPPLIER, AND EVEN IF Widget HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
4.3 Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of Widget and any of its suppliers under any provision of this EULA and your exclusive remedy for all of the foregoing shall be limited to Five U.S. Dollars ($5.00). The foregoing limitations, exclusions and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
5. MISCELLANEOUS
5.1 All CAR provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the commercial rights and restrictions described elsewhere herein. All CAR provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995 is provided with RESTRICTED RIGHTS as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or FAR, 48 CFR 252.227-7013 (OCT 1988), as applicable.
5.2 THE CAR MAY CONTAIN SUPPORT FOR PROGRAMS WRITTEN IN JAVA. JAVA TECHNOLOGY IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS ONLINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF JAVA TECHNOLOGY COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. Sun Microsystems, Inc. has contractually obligated Widget to make this disclaimer.
5.3 You agree not to export or re-export the CAR, any part thereof, or any process or service that is the direct product of the CAR (the foregoing collectively referred to as the "Restricted Components"), to any country, person, entity or end user subject to U.S. export restrictions. You specifically agree not to export or re-export any of the Restricted Components (a) to any country to which the U.S. has embargoed or restricted the export of goods or services, which may currently include, but are not necessarily limited to, Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria, or to any national of any such country, wherever located, who intends to transmit or transport the Restricted Components back to such country; (b) to any end-user who you know or have reason to know will utilize the Restricted Components in the design, development or production of nuclear, chemical or biological weapons; or (c) to any end-user who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. You warrant and represent that neither the BXA nor any other U.S. federal agency has suspended, revoked or denied your export privileges.
5.4 If you acquired this product in the United States, this EULA shall be construed and controlled by the laws of the State of Washington without regard to conflicts of law. If this product was acquired outside the United States, local law may apply. If you acquired this product in Canada, this EULA is governed by the laws of the Province of Ontario, Canada, and each of the parties hereto irrevocably attorns to the jurisdiction of the courts of the Province of Ontario and further agrees to commence any litigation that may arise hereunder in the courts located in the Judicial District of York, Province of Ontario.
5.5 Should you have any questions concerning this EULA, or if you desire to contact Widget for any reason, please send email to eula@Widget.com or write: Widget Research, One Widget Way, Redmond, WA 98052-6399.
Better yet - maybe I should start a cut-price PC house and buy my licenses from annoyed Linux users rather than M$
From my submissions page:
* 2001-11-01 22:49:31 Federal Court: Adobe Software is Sold, not Licenced (yro,news) (rejected)
But nearly a full month later they realize it actually is news! Old news, but news.
It is a fantastic opinion justifying the decision that everyone should read if you haven't yet.
Yes, I resent having to buy Windows when I buy a box (hell, I con't even want to have to buy a monitor when I buy a box. I was still using the '98 that came with one until recently. That's irrelevant now, but if I got an XP that I don't want I'd give it or sell it in a heartbeat. Let the cops come get me. If the thought police keep it illegal then I'd keep it off of e-bay, but that's about as low as I'd keep my profile.
What we're losing sight of is that these big companies are fast becoming irrelevant. Their business model is morally bankrupt. They can only make money by forcing people to buy things that they don't want, and have to get the law to keep people from selling off the crap they didn't want to buy in the first place. This is going to be a great boost for open source. Hell, there's even a slim chance that closed source customers (hostages) might actually be helped by this. The way our judicial system has been going, very slim.
I spent a year in Iraq looking for WMD and all I found was this lousy sig.
Legal definition of precedent.
Here is a small excerpt:
According to Lord Talbot, it is "much better to stick to the known general rules than to follow any one particular precedent which may be founded on reason unknown to us." Blackstone says, that a former decision is in general to be followed unless "manifestly absurd or unjust," and, in the latter case, it is declared when overruled not that the former sentence was bad law, but that it was not law.
if you selll the software to someone else, you aren't the end user anymore, but instead a middle man. therefore, the eula doesn't apply to you
He did explicitly mention that the software was bundled, which leads one to assume that he was talking about all PC software. Maybe he was talking about Macs, or maybe he was just not clear in what he was saying. But the connontation from the post was that "Office 98" and Windows were preinstalled, and he sold off those licenses after converting to something else (probably Linux and StarOffice). Thus my comment on Office 98 not existing for Windows.
So my future-lawyer wife and I had a debate (heated I might add) about this issue.
We came to the determination that there are two pieces of the sale: the physical box containing the manual and the CD, and the license which is included in the package.
The box, containing a copy of the software on CD and a manual for how to use the software is included in the box. The CD and manual are yours to sell. So is the license included in the package.
You are buying a physical CD, a book (manual), and a license. However, until you install the software, you do not agree to the license. This way, everyone can sell boxed software all they want. However, the license is SEPARATE from the SALE of the box, because you still haven't installed the software, which activates the license.
Heck, the could sell the CD and the manual for $1, and then sell the license online for $148.99. You could still sell the CD and the manual all you want (since you own those physical items), but you down own the RIGHT to install that software on a computer.
The court is saying that Softman had every right to sell the box, which he did, and should. But the court SHOULD NOT have said that the entire transaction invalidates the license and allows Softman to do whatever he wants with it (copying, fraud, copying to multiple computers, etc).
I think we'll see this overturned, but hopefully the appeals court will see that there are two transactions -- the sale of the copy of the software, and the license that is agreed to when you INSTALL the software, not just buy the box that it is in.
Peter
TossableDigits.com: Temporary Phone Numb
DVD is not software.
Do you claim that the Dragon's Lair game, which runs on the DVD-Video menu virtual machine, does not count as software?
Will I retire or break 10K?
If so, then Isn't it Ironic is a rare example of meta-irony in art (or pop).
And isn't it ironic that Isn't it Ironic, by being meta-ironic rather than simply ironic, further confused people about what is and isn't ironic?
B didn't make any copies. A made all the copies, abiding by the terms of the GPL in order to be allowed to do so. A then distributes all the copies, one by one, to B, who sells each of them without making any more copies himself. Since B is only reselling the software, not copying it, he doesn't need any rights that copyright law does not provide and thus he does not need to agree to the GPL.
First of all, there is no federal law which so states, rather it is a doctrine, which is a court interpretation which sets a precedent.
First sale is explicitly protected by 17 USC 109 (Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord), and computer software not stored on a semiconductor is also subject to 17 USC 117 (Limitations on exclusive rights: Computer programs).
Will I retire or break 10K?
You read too deep into what he said. He meant you can do whatever you want to it, not with it. So with your AK-47 analogy, you would be able to smash it, break it, take it apart, etc etc.
That bottle of coke probably doesn't list the nutritional value, ingredients, etc etc. All that is probably on the box that holds all the bottles... It says not intented for resale, because the bottle doesn't have the FDA mandated labeling, meaning it would be illegal for Safeway or whatever to sell the bottle individually, because it is not labeled correctly.
If it were illegal to take something apart and resell it individually period, scrap yards would be non-existent...
The main difference with a plane ticket is that it represents a Contract for future service (the plane trip). In many cases, unless neted at time of sale, you may get a refund on the ticket if you do not agree to its terms of use.
In fact, you can nearly always get a refund, however, the amount of money refunded changes with the date. There are other restrictions too - and these are legal even though you cannot read the contract at the time of sale.
I was merely pointing out that just because you cannot read it at the time of sale does not invalidate a contract. However, as has been noted in the case of an EULA, you possess the software for life. It does not expire, and you can use it as much as you want. These are not terms consistent with contracts for service, and make the EULA:contract analogy sort of like calling a duck a goose.
It quacks like a duck, walks like a duck, but Microsoft says it is really a goose. That is what the judge is basically saying too. The sale of the Adobe software meets all normal criteria for copyrighted sales, except that one party claims it is a contract for service instead. It is not a goose, it is a duck.
Do you claim that the shiny disc is software?
No, but it's a medium that contains software.
Do you claim that movies on VHS are software?
Software yes; software for a digital computer not necessarily. I roughly define "software" as "a set of instructions and data that a piece of electronic hardware uses to do something useful," and movies on VHS constitute a set of instructions (the control track) and data (audio and video tracks) that a VHS VCR uses to reproduce picture and sound.
Of course I'll claim that software on DVDs is software. I will not claim that all data on DVDs is software, though.
The menu programs on DVDs of even Hollywood feature films contain computer instructions; therefore, virtually all DVDs have some computer software. Now, if only we could get the DMCA amended to explicitly exempt circumvention that does not result in copyright infringement, we'd have backup rights under 17 USC 109 and 17 USC 117.
Will I retire or break 10K?
I think there is a key here that most are missing. When you buy an OEM software, such as Windows bundled with a PC, you are buying software that has been dicounted on the basis of it being sold only with the hardware, is. COmpaq Presario xxx Serial number XXX. If you want to install LInux on that, and then sell Windows, fine. But to be legitamate, you'd either have to sell the hardware with it, or cough up the extra dough to MS to make up the difference to what you paid, and what the retail price is. If you don't like that, then oay full price to begin with. Likewise, I don't believe anbody buying a bundle like Adobe Collection or MS office has the right to sell off part of that bundle, unless they then pay the manufacturer the difference between the bundle price and the retail price of the product. Smae applies for upgrades. You get WinXP 1/2 price on the basis of already owning Win98/ME/NT/2K. If you then sell the previous version, you no longer qualify for the discount, and should only be allowed to sell the older one, if you pay the difference between an upgrade and retail.
WHat I DO support, however, is having the right to uninstall retail software and sell it. I've seen some games in the store recently that are online games, and they are tagged "NOT FOR RESALE BY ORIGINAL PURCHASER, NOT VALID FOR RETURN IF OPENED" Which means if you don't like it you're screwed.
Comparing the software license to the purchase of a car is not a valid comparison. You don't get a car bundled with something else, with an agreement that you're getting a discount because of the bundle. You also cannot make illegal copies of a car prior to selling it. THe only comparison that can be made to the purchase of a car is the purchase of complete retail software, and the resale of said COMPLETE software.
Why should yo uget a discount by meeting certain conditions and then no longer meet the conditions for the discount?