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.

Comments

Just out of curiousity

[Raul654]

When did the whole notion of buying software die, makeing licensing become necessary?

Re:Just out of curiousity

[cybermage]

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.

Isn't that a tad facetious. If I go out and buy a book, that doesn't make me the copyright holder, does it? Why should software be any different?

The copyright on the software is all they need to assert their rights. Anything else is lawyers covering their asses and marketing people scheming things.

Re:Just out of curiousity

[Frater 219]

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.

You are confounding buying a copy of the software with buying the copyright to the software. When you go to the store and lay down money for a box containing a CD-ROM of Windows XP, you are buying the copy -- not buying the copyright. This is rendered somewhat opaque not only by software makers' illicit "licensing" language, but also by news reports of companies "buying software" (meaning the copyright) from one another, e.g. "Microsoft bought Flight Simulator from SimLogic."

The example of books usually clears things up. When I go to the store and buy Philip Pullman's The Golden Compass, I am buying a copy. I own that copy, and I may dispose of it in the usual ways I may dispose of any piece of my property. I may use it, alter it, destroy it, sell it to another person, write notes in the margins, and so forth. However, I do not own the copyright -- the right to make copies (identical or derivative) of Mr Pullman's novel.

Moreover, I am not "licensing" anything. I do not need a "license" from Del Rey Books or from Mr Pullman to read the novel. I already have that right because the book (the copy, that is, not the copyright) is a piece of my property. I also don't need a license or other special privilege to comment on it in public; to excerpt from it under fair use in writing a review; to photocopy it at 200% magnification (and keep both copy and original) in case my vision becomes even worse; to lend the book to a friend; to donate it to a library; or the like. The book is mine, and I may do these things just as legally as I may burn it for fuel.

I would need permission from the copyright owner only to exercise a privilege held exclusive to that owner under copyright law: for instance, to publish copies of it; to record myself reading it alound and distribute the recordings; to translate it into Russian and print that; and so forth. These (among others) are rights over which copyright law grants a monopoly to the owner of a work. Reading, selling, lending, and commenting are not.

Here's another example, taken from patent law, which is similar though not identical to copyright. I recently bought a Ford Taurus car. I did not "license" that car; I own it, whole and entire. I own none of the patents that enter into the car's design, nor did I license any of the patents. Legally, may not manufacture and sell copies of the car. Yet I may sell the car, lend the car, modify the car to improve its performance or appearance (or for any other purpose), create aftermarket add-ons for the car and sell them to other Taurus owners, and so forth. I do not need special permission from Ford to do so.

If you do not believe that you own the CD of Windows XP that you got from your local computer store, then here's a question for you: Destroying other people's property is illegal. If you take that CD and microwave it, whom have you wronged? In microwaving it, you have defaced the physical medium and destroyed the recorded work stored upon it. If that copy belonged to Microsoft, then you are guilty of a crime of vandalism or destruction of property. What do you think?

Key quote from the judge

[coltrane99]

"The Court understands fully why licensing has many advantages for software publishers. However, this preference does not alter the Court's analysis that the substance of the transaction at issue here is a sale and not a license," Judge Pregerson writes. If you put your money down and walked away with a CD, you bought that copy, EULA or no EULA." Quite a weakening of the standard 'anything goes' rule for EULAs.

Re:DUH.

[thesolo]

Tell that to Microsoft, who was getting Ebay to shut down auctions of unopened, bundled software.

And lets not forget when those Linux Geeks went out to Redmond a few years ago and demanded their money back for the copies of Win95 that came with their PC that they never used. Did they get their money back? No.

Believe it or not, this IS an important decision.

Re:wait for the years of appeals on this one...

[Dwonis]

This ruling has absolutely no effect on the GPL whatsoever. Perhaps you should learn the law and read the GPL before you make claims that only serve to mislead others.

The GPL does not govern use, only distribution of copies. If the GPL is completely invalid, then you have no legal right to distribute copies of GPL'd programs. EULAs, on the other hand, specify restrictions in addition to copyright, which this court has ruled to be non-binding.

Acceptance of a Contract

[bollocks]

One thing that I have always been curious about with EULA's has been how they can be considered binding if your agreement to the conditions comes after the completion of the contract (when you pay at the register). I don't know about US law, but I did study Australian contract law, and I seem to remember quite clearly that conditions added to the contract after the acceptance of an offer have no legal force.

I also remember cases we studied where taking something from a shelf to the cash register and paying for it is considered acceptance of the contract. If you can't read and accept the conditions of the contract before you accept the offer (ie pay the purchase price) then you shouldn't be bound to those conditions.

Softman v. Abode, done TWICE before on Slashdot

[Seth Finkelstein]

This is the Softman vs Adobe case, which has already been covered on Slashdot before, not just once but twice

And it's months-old news by now!

Grumble, grumble, are front page slots really going begging? It's unseemly to complain. But at a certain level, it's very sad that I can't get any Slashdot coverage for my anti-censorware work these days, because of What Happened To The Censorware Project (censorware.org) while months-old news is recycled over and over. Really guys, if you need a good story, I have plenty of deserving ones that are languishing for lack of journalistic backing!

Re:For the umpteenth time: GPL != EULA

[Frater 219]

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...

That's not quite accurate. You might want to reread the GPL, particularly section 3, which governs redistribution options.

First off, the GPL doesn't impose any "additional responsibilities" upon you (the licensee of a work) -- it just grants you specific rights, and doesn't grant you others. It grants you the right to release source-and-binary, GPLed derivative works. It doesn't grant you the right to release binary-only derivative works. Releasing source when you release binaries isn't an "additional responsibility"; it's just a term of the right you're granted.

Second, the GPL never requires that you post source publicly. If you give me binaries, you're required to give me source. So it makes sense that if you post binaries publicly, you should post source publicly to ensure your obligations are discharged. But if you're a consultant working for Frobozz Magic Corp. and you customize gcc for them, you don't need to post your diffs publicly at all; you just need to give them to Frobozz.

This second point is important. Some non-GPL licenses require that you give your changes back to some particular party -- usually the original author or current maintainer of the code base. The GPL doesn't enforce that kind of centralization, even with "the public" as the particular party. The GPL ensures that the users of a binary have freedom to get at the sources; the "public review" thing the open-source folks are on about is a nice side effect.