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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.
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.
But still funny.
No, as a condition of the upgrade rebate, you are effectively nullifing your right to use anything from the original version. Most often you are instructed to destroy the original version.
However, something you can do is go buy version 1 of something at a swap meet for $10, and then get the $50-100 off the upgrade.
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!
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!
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?
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!
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"
This isn't as much "normalization" as it is "don't take so many drugs when you're designing tables."
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.
well, that would be nice except this is a US district court. UCITA is a state law. federal law overrides state laws when there is a conflict. UCITA is now in a state of flux, if the supree court rules that EULA are illegal then UCITA is irrelivent.
I am the Alpha and the Omega-3
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
Of course IANAL, but:
Since it it is in Federal court, whether or not a state has passed UCITA is irrelevant, as the decision doesn't involve state law of any kind. I would assume that for the time being it only applies to the district in which it was decided, but as it works its way through the Federal system it should apply to all residents within that jurisdiction. Presumably Adobe will apeal it to the 9th Circuit, but that tends to be a fairly liberal circuit and would likely side with SoftMan. So it would likely go to the Supreme Court that with its current makeup is more likely to side with Adobe both because the user agreed to it, and because the lower court has the appearance of making new law. Consumers would probably be best served if the Supremes decide not to hear it, since most major software companies are in the 9th circuit and would for all practical purposes be bound by any decision of the 9th circuit.
Work for Change & GET PAID!
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
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
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 "ex post facto" protection means that you cannot be prosecuted for actions that are now illegal but were legal when you did them. "ex post facto" only applies to the passage of new laws, not to a judicial reinterpretation of an existing law.
So Ebay was holding users to a higher standard than it turns out the law actually requires. I don't know if this would be grounds for a civil suit, though - Ebay can do pretty much whatever they want on their private servers, you know.
IANAL and haven't slept much of late, though.
Your right to not believe: Americans United for Separation of Church and
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.
Then perhaps the "original" software should be traded in BEFORE the deal is made. The transaction has been made and the seller should have taken the original at the time of sale. Just because something is printed on a box does not make it so. Copyright law has no mention of "upgrades" and "EULAs."