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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.
Google cache here:
: www.cacd.uscourts.gov/CACD/RecentPubOp.nsf/bb61c53 0eab0911c882567cf005ac6f9/574aa79ff518021188256aed 006ea2dc/%24FILE/CV00-04161DDP.pdf+&hl=en
http://www.google.com/search?q=cache:fqBMOVCI89oC
--pi
> 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
...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
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!
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!