Slashdot Mirror
California Court: EULAs are Inapplicable in Some Cases
(outer-limits) writes "In a significant ruling in a California court, a judge has ruled the standard EULA licensing agreement to be invalid. This must be the biggest upset in software licensing ever. No more are we powerless End Users of software, having to agree to every restriction a software company makes (Expect an appeal on this, though)." Note that this is about the resale of bundled software, so it's not like EULAs are dead, but this ruling could have broad effects. Update: 02/12 03:45 GMT by J : Yeah, this is a
repeat - sorry.
Anyone got a mirror of the actual decision?
It seems, according to the article, that this ruling says that if you don't agree to the terms of the EULA, you have the right to resell the software, but not to use it.
You still have to agree to the EULA if you want to use the software.
> When did the whole notion of buying software die, makeing licensing become necessary?
I think "leasing" the license has long been the norm in non-PC markets. For instance, over a decade ago a shop I was associated with was leasing the OS and all the third-party software for their minicomputers. Most had rates that went up for faster machinces and/or more concurrent users.
The current trend isn't new in an absolute sense, but it may qualify as "strategic bait and switch". I wonder how successful PCs would have been if they had been introduced with for-lease software?
Sheesh, evil *and* a jerk. -- Jade
It has been licensed for the 32 years I've been in the industry.
Since the underlying protection mechanism is copyright, companies don't really want to sell it. I mean it would be really great to own Windows XP for a few hundred bucks and then to tell MicroSoft to cease and desist selling MY SOFTWARE. I'd love that. Ain't going to happen.
Just like I don't sell the photos I freelance to publishers, I license them. Exactly the same thing. I may sell them a slide dupe along with the license but they don't own the photo, just a copy of it and their rights are restricted by license.
Same deal if I sell you a print of one of my photos. You don't own the right to scan it and sell it to others or to publishers. Sorry 'bout that.
...so here is a link to Google's cache of the file (converted to HTML from its original PDF).
I think that your understanding is fundamentally wrong here. The thing that prohibits me from making and selling copies of a work I buy from you is standard copyright. It doesn't have anything to do with the distinction between a license and a sale. That means that if I buy a print from you I have the right to resell the physical print as I damn well please. If I buy a book of prints from you, I have the right to tear the pages out of the binding, frame the individual pages, and to sell them for less than you charge for individual prints. That's the doctrine of first sale, which was established by the U.S. Supreme Court a long time ago.
What software writers want to claim is something different. They say that when I buy software I don't necessarily have my normal rights under first sale. I might not be allowed to transfer my right to the software to somebody else, for instance. To try to enact those rules, they claim to sell you only a license to use the software, and not actually a copy of the software itself.
What the judge has ruled in this case is that the nature of a transaction is governed by the nature of the transaction and not by what it's called by the seller. IOW, if I pay you a single, up front fee for a box of software that I'm allowed to use in perpetuity, that constitutes a sale whether you want to call it a sale or a license. That means that I have normal first sale rights- specifically the right to break up the pieces of a purchase and sell them separately as was done in this case- even if the "license agreement" that you try to impose specifically prohibits me from doing so.
There's no point in questioning authority if you aren't going to listen to the answers.
Copyright law makes certain restrictions on redistribution by default. The GPL lifts some of those restrictions, allowing redistribution/modification under certain conditions.
If you bothered to read the GPL, you would notice that it even says:
If a thing is not diminished by being shared, it is not rightly owned if it is only owned & not shared. S. Augustine
I sell software in the form of licences. If someone resells their licence, I have no obligation to support the seller anymore. I do have an obligation to support the buyer, since they have bought the licence (less any time or licence renewal restrictions).
What's tricky is that, people being human, it's too easy to resell your licence and "forget" to delete your copy. The "threat" of no longer being supported doesn't worry people enough, hence publishers get more draconian about resale rights.
You're a fool. Copyright still applies even if there is NO EULA, but you're still allowed to sell your copy of the software.
I was going to reply properly to this message, but I know realise there are a number of people who have done that already. Go read their comments, then you'll understand the difference between software licences and copyright.
The end quote implies that the judge wrote that last sentence, which was, in fact, Don Marti's commentary.
The judge acknowledges the controversy surrounding shrinkwrap license, citing two conflicting cases. He dodges the issue by asserting that Softman, having never installed the software nor clicked "I Agree," didn't assent to the license. That, in itself, seems significant.
If you buy a book you own the book. You don't own the novel. You can't turn around and publish it yourself, you can't sue the author, you can't photocopy the whole thing and give it away, etc.
Is software any different? You buy software, you own the cdrom, but not the data.
The differences are that software is easy to copy, and they try to legally restrict you from transferring the license (used software stores? uh-uh.) Certainly if it that happened, it would not be uncommon to buy a program, copy / install it, sell the original to someone else. People DO do this with music, they also would with software. The reason people can do it with music is that it's legal to transfer the license.
I'm not saying I agree with restrictive EULAs. Just trying to answer your confusion.
Trees can't go dancing
So do them a big favor
Pretend dancing stinks!
What software writers want to claim is something different. They say that when I buy software I don't necessarily have my normal rights under first sale. I might not be allowed to transfer my right to the software to somebody else, for instance. To try to enact those rules, they claim to sell you only a license to use the software, and not actually a copy of the software itself.
Or in some cases, you don't even have the right to transfer software to a machine that you own.
My company recently purchased an OEM copy of WinXP (we are qualified). As a network tech, I'm running into more & more copies of XP, so I needed to be familiar with it. I noticed that the little license sticker requires you to affix it to your PC. Now, as the best tech in the company (big fish in a small pond), I get to upgrade my hardware whenever possible. Whether it's a new video card, hd, cpu/mb, or case. But now I'm suddenly tied to my case. If we EOL it, there goes our copy of XP. With the older OSs, I've always slipped the little license sheet in the bottom of my case, and transfered it when I got a new box. No more of that, though. And *that* bothers me more than activation or any of the rest of the XP brouhaha.
jred
I'm not a mechanic but I play one in my garage...
if you don't agree to the terms of the EULA, you have the right to resell the software, but not to use it. You still have to agree to the EULA if you want to use the software.
In the United States of America, use of software is a right that comes along with ownership of a copy under 17 USC 117. If you own a copy, you can use it unless using it requires circumventing copy protection. However, in a sotware rental situation, the lessee is not the "owner of a copy" (the lessor still owns the copy, and by 17 USC 109(b), the lessor has to be authorized by the copyright owner), and some courts are more likely to apply the rental rules than others.
Will I retire or break 10K?
The GPL does not restrict your rights under copyright law.
Well, it may not restrict you, but you have additional responsibilities. Namely if you make changes you then release to anyone else, you must then also public the source, and attach the same GPL license to that code...
No, it is a politically motivated license that is designed to shut away the hard work of contributors behind its walls
I would agree it's "politically" motivated license - though I think the word politically is misguided... But it's intent is not to prevent others from using the work. It's just an attempt to entice you to use the code, and by doing so, also encourage you to contribute to the community.
The GPL tries to maintain a collective system. It grants additional rights, but in the effort to maintain a community effort, it also requires you to publish the source for any changes that you release. That's a give and a take. The take is justified. If I give out to everyone, I also expect that they give back into the community.
Think of a community garden. Everyone works in the garden, and when it's done, everyone gets to participate in the "fruit" & vegtables [grin]. All is well and good. But one of the members take the fruits and vegatables and goes and sells them for profit. That violates the spirit of the community garden, at least in my view. I want to contribute to the community, not to someone elses profits.
The BSD license is fine if you don't mind anyone taking from the community, and never putting back. It also allows others to take the community work and then extend it, and use it for profit. Those things bother me, especially when I'm trying to make a community.
If community doesn't matter to you, then BSD is fine. The BSD doesn't seem any different than public domain software - could someone enlighten me? If anyone can take the source you release, and extend it, change it, or sell it, than just say "Oh, by the way, this program I'm selling, well George did most of the work..." what's the point? I understand the "poison pill" that you level at GPL, and it is there, but I don't really like others standing on my back, and then using the work just for their own benefit. I'm not saying you're crazy for liking BSD style licenses, I just think I would never do such a thing, at least not with any large project.
One further GPL facet that I like is this. If I create software and license it under the GPL, I can also SELL licenses to others for commercial purposes. That allows me to contribute to the community, while also allowing me to get payback from those who aren't going to contriute to the community.
It seems perfectly fair to me. If you want to use GPL software, go inquire of the authors - negotiate an appropriate fee, and use the branch licensed outside of the GPL. It doesn't prevent closed source, or selling code. It does keep people from siphoning off the energies of the community, and using for their own purposes.
I'd truly love to hear some further expansion about this, so flame, or just sputter away. [grin]
Cheers!
If Jimmy installs pirated software for Mr. Jones to use, most courts would see Jimmy as furthering Mr. Jones's ends and conclude that Mr. Jones is responsible for all that Jimmy does, legal or not, to further those ends. In that case, Mr. Jones is on the hook and this is justifiable because (1) holding him responsible for Jimmy's actions forces Mr. Jones to carefully consider who he hires to install his software; (2)we can't let employers hide behind the bad acts of their employees, especially when they are the real beneficiaries of those bad acts; and (3) Jimmy is probably insolvent and it is better to hook Mr. Jones (as the beneficiary of the criminal copying) for the cash than for to force the victim (poor Microsoft) to eat the loss. If Mr. Jones does have to cough up to Microsoft, though, he can turn around and sue little Jimmy for getting him in such trouble.
Mr. Jones would have a good (but ultimately losing) argument for escaping liability. He would argue that Jimmy was never authorized to break the law. So, when Jimmy installs pirated software, he is "off on a frolick of his own" (yes, that is the legal term) and Mr. Jones is not responsible for Jimmy's actions. That argument would lose, but it's worth making.
While I am a lawyer, the above does not constitute legal advice and you should not rely upon it. Check with your lawyer if you find yourself needing legal advice. YMMV.