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

[Black Parrot]

> 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?

Re:Just out of curiousity

[dhogaza]

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.

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

[Suppafly]

The analogy isn't really the same. If I am an artist and sell someone a print, they are free to sell the print again. I can sell them a license to the print saying they photocopy it and such, but they can still sell the physical copy of the print that I hand them. They could probably even sell the license to someone else.

Re:Just out of curiousity

[rgmoore]

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.

Re:Just out of curiousity

[gorf]

No you don't. Just like you sell books, you can sell photos. You're selling a copy of the book/photo. The buyer doesn't own the book or photo, just owns the copy. Copyright applies.

OTOH, you could sell the rights away if you want, but you probably don't.

Of course, you could license photos if you want, but that would involve signing a contract, and you may well be doing that (seeing as the publisher will want to reproduce the photo, he'll need extra rights from you in order to do that reproduction, as otherwise it would break copyright law). But just selling a photo doesn't imply that buyer owns the rights to it, since a photo is ultimately just a copy in itself. If you sold the negatives then you might be implying that you're selling the rights, what what you're implying is a separate issue.

IMHO an EULA should not be valid unless something was signed at the time of purchase. Otherwise it should count as any other sale, with you buying a copy of the software for use as restricted solely by copyright law.

Offering a refund if you don't subsequently agree to a change in terms should not be allowed; that means that you were sold the software under false pretences, and in any case is an attempt to change the terms after you have already completed the purchase.

Re:Just out of curiousity

[mfago]

No. You own the copyright of the work itself. If I go to your gallery and purchase a copy of that print, I certainly can resell that print later to someone else. Otherwise there wouldn't be much of a market for artwork. I can even make copies of your photo in limited circumstances under "fair use."

The software industry is trying to license the _use_ of software itself. You don't own it, but can use it under the terms of the EULA. Soon, IMHO most software will be pay-per-use.

As others have already stated, this concept is not new: mainframe software has been like this since the beginning. On the other hand, in a corporate setting the lease usually includes updates and support. Something that MS and others of course charge extra for.

Re:Just out of curiousity

[gilroy]

Blockquoth the poster:

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

I think we could argue that it has never been necessary... If instead we talk about when it became commonplace, I think it dates back to mainframes. IBM, at least, never sold a mainframe to a customer. They leased it, guaranteeing support but retaining control. The software, in those days, came bundled on the Big Iron and didn't really run anywhere else, so it was included in the lease. I believe -- but have no actual facts to back me up :) -- that the habit of licensing software arose then.

Re:Just out of curiousity

[KITT_KATT!*]

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.

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?

Re:Just out of curiousity

[cpt kangarooski]

True, but only of that individual copy of the software.

Copyright is not transfered along with copies of a work covered by that copyright. This is absolute.

Books are copyrighted, books are sold, yet the buyer of a book has no special rights against the author. There's no difference really, between books and software in this respect.

What are you worried about -- people selling used copies of software (where it is illegal for them to keep their own copies!) just as people sell used books or used CDs? Doesn't seem like there's a compelling reason for EULAs at all, huh?

Re:Just out of curiousity

[wfrp01]

I'm not responding to disagree with you, just to add my own little rant...

We have laws. Laws are laws and you're not supposed to break them. But we have laws for a purpose. What is that purpose? Well, if you asked me, I'd probably respond with some vague handwaving generality like "to make the world a better place".

Now when you start to have a conversation like this, it tends to veer off into dialectic diatribes about what the law "should" be. As opposed to what it is now. But if you head in that direction, you're sticking your neck out. You're questioning the law. The law which can't be broken. Are you some kind of demented criminal?!

When it comes to issues of copyright and licensing, though, I think that's exactly the conversation that is most important. There are a lot of built-in assumptions about the utility of copyrights and licenses. We hold these truths to be self-evident (we have laws for christ's sake!). We compose paeons to these sacred cows.

I don't.

Re:Just out of curiousity

[Cuthalion]

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.

Re:Just out of curiousity

[jred]

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.

Re:Just out of curiousity

[shepd]

>You don't own the program, you have purchased a license to use a copy of it.

>Like when you rent a video game, except on a longer term basis.

Yes, but when I rent Star Trek: First Contact at the local video shop, the next thing the cashier says (after he tells me its on TV tonite anyways) is that it is due back next week.

I've never been told at a store I need to return the software at any date in the future. I'm certain that if I were to ask if I would ever, at any point in the future, have to return the software to the store, I'd first get a blank stare, and then "No -- this isn't Microplay -- this is Future Shop. We don't rent software."

I'm also sure if I called Future Shop head office and asked them the same question they would tell me they don't rent software, they only sell it.

Take that for whatever you interpret it as, but I take it as a sale. Just like a bookstore tells you they sell books, and reminds you "This ain't no library" if you spend too long there, Future Shop is a software store that sells software (among other things).

Re:Just out of curiousity

[anthony_dipierro]

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.

It's funny you should mention that. In Mirage Editions v. A.R.T. Co., the defendant was found guilty of copyright infringement for doing exactly that.

Re:Just out of curiousity

[anthony_dipierro]

Specifically, if I download 200 copies (for free), can I give away or sell 200 copies without being bound by the GPL under first sale?

Only if you sell the actual media to which the copies are downloaded (sell the hard drive, or download directly to CD-R). Otherwise, you're making copies, and need to agree to the GPL.

Re:Just out of curiousity

[gorilla]

Actually it never really existed.

In the beginning, computer manufacturers would only make hardware. Software was very primative, and generally written on site.

As the industry matured, and software became more complex, then it benefited the manufacturer to bundle the software in to make the hardware work. In fact, usually you were renting a solution, not hardware, so you'd have a contract which said 'provide a solution to process 10,000 bills per month', and IBM would ensure that you could do that, including having people on site if required.

With the IBM anti-trust case, leasing and bundling of software & services was stopped, and instead you would have to purchase the hardware, and license the software, and pay for any consultancy.

Re:Just out of curiousity

[WNight]

Not only is some copying allowed under the fair use provisions, but special allowance is made for *all* copying needed to execute a program.

The GPL is another issue. You're granted the unlimited right to duplicate it. This is aside from any "first download" rights you want to try to claim. You can make as many copies as you want. These copies must be exact. If you make a copy without the copyright license it'd be a derivative work and disallowed, unless you accepted the GPL, which demands that the license be distribute with it.

But anything you can do with a regularly copyrighted piece of software (or book), you can do with GPLed software. The only difference is that with the GPLed software you can do more, in most cases.

Hmm.. Broken links in the article?

[Anonymous Coward]

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.

Re:Hmm.. Broken links in the article?

[The Pi-Guy]

Google cache here:

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

--pi

DUH.

[edrugtrader]

of course you can resell something you pay for that you don't use. this is NOT going to be broad reaching... this is very similar to best buy's software policy: if you don't open it, you can return it.

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:DUH.

[Spy Hunter]

Here are the relevant portions of the ruling (italics mine):

[quote]

Courts have required that assent to the formation of a contract be manifested in some way, by words or other conduct, if the contract is to be effective. [...] In the instant case, the Court finds that there is only assent on the part of the consumer, if at all, when the consumer loads the Adobe program and begins the installation process. It is undisputed that SoftMan has never attempted to load the software that it sells. Consequently, the Court finds that SoftMan is not subject to the Adobe EULA.

[/quote]

The court made no decision on the validity of EULAs (in fact it explicitly skirted the issue by saying if at all). This is only affirming the fact that if you don't agree to the EULA by performing some action then you are not bound by it.

Re:DUH.

[sheetsda]

this is very similar to best buy's software policy: if you don't open it, you can return it.

I always liked when the EULAs said "If you do not agree to the terms of this agreement please return this software..." By opening it to read the license agreement you give up your ability to return it, and by not opening it you can't read the license agreement. Catch 22. My solution? Exchange the opened software for an unopened copy and immediately return that one. (I've heard they're not suppose to let you do this, but no one has ever tried to stop me)

Re:DUH.

[the_2nd_coming]

this is off topic a bit, but.......one time I bought a mickey mouse game for my son....well the damn thing would not work so I returned it...they gave me another one...it did not work, I returned it, they gave me another one....guess what, it did not work.....that was the last one on the shelf, it was clear that the software was defective, but they would not give me my money back, rather they said that "copyright law prohibit the return of opened software"

at that I got realy pissed off because they were lieing to me......I said, show me where in the law it says that since if it is a law reguarding your business practice you must unter business law display this in a location or onliturature that I may read.....the manager said that she did not have any information on this for me and instead just fliped over the recipt and pointed to the stupid software clause........then she told me in a mocking voice to go and take it up with disney....I said, "do you have the number I need to call" , she returned saying "no"

guess what, the number is no where to be found...though I must admit I did not look realy hard after I sorted throught the packaging......Now I buy all my software at costco....got to love being a member :-)

Re:DUH.

[arkanes]

That's why its a sticky issue. MS tells you it's the dealers problem. The problem tells you it's MS's problem. Personally, I'm of the opinion that MS is the one who owes you money (the EULA is an agreement between you and MS, and they are the ones who guarantee the returnability of the product in the EULA), and they should refund you the full retail price of Windows, not the OEM price.

To early to get excited

[curunir]

Like the article said...this is to important to the software industry. They will appeal this, and in the event that they lose in the appeal process, they'll buy some legislation which gets around this.

Re:To early to get excited

[felipeal]

They will appeal this

So, it's better starting selling those crappy OEM-XP that comes with our laptops while they don't do it...

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.

Whats an EULA ?

[Anonymous Coward]

Is it that thing I press "Next" on before entering the serial I got from astalavista?

What were they saying in it anyway?

Re:Whats an EULA ?

[flacco]

What were they saying in it anyway?

Something about granting the software permission to turn you in to its vendor over the network automatically.

Not news, but certainly important . . .

[werdna]

The Softman case is significant, if not for anything else, than for the plain, common sense, view that whether or not a sale is a sale, depends, upon whether or not the sale is treated by the parties as a sale. Thus, a person who purchased the software, but who has not loaded the software (submitting to the click-wrap) is typically able to rely upon the first sale doctrine (the rule that allows you to resell books that you have bought).

good idea, but not in this case

[dirk]

As much as I like the idea that individuals should be able to resell software they bought that they did not use, I don't like the ruling in this particular case. Softman was being bundled Adobe packages and breaking them up and selling them individually for a profit. This is something different than Joe User selling his copy of Windows 98 that he got with his computer that he doesn't use. This is a company basically ripping off Adobe. They are selling the bundle cheaper, because it is a bundle. What will end up happening if this takes off is that bundled software will no longer be cheaper than the individual packages. If you want Photoshop and Pagemaker, you will have to buy them individually, because there is no reason for Adobe to sell the bundle that Softman then buys, breaks up, and resells the individual pieces and takes sales away from Adobe.

For individual users, this would be great and make sense and help them out. This will do nothing but hurt the end users is companies are allowed to do it though.

Re:good idea, but not in this case

[startled]

"100 dollars off when you buy Pagemaker and Photoshop, and register them on-line after installation!"

I think I just fixed your problem for you.

Re:good idea, but not in this case

[jonabbey]

Softman was being bundled Adobe packages and breaking them up and selling them individually for a profit. This is something different than Joe User selling his copy of Windows 98 that he got with his computer that he doesn't use. This is a company basically ripping off Adobe.

How on earth so? Adobe got paid for however much software was in the bundle, at a price set by Adobe. If the purchaser turns around and sells the individual packages for more than (bundle price)/(items in bundle), then Adobe left money on the table by selling the bundle too cheaply. Whyfore should that be anyone's problem but Adobe?

Re:good idea, but not in this case

[ZoneGray]

Well, software is usually heavily discounted when it's bundled with hardware. What the software publishers are trying to do is protect that discounted price, without worrying that resold bundled products will undercut their regular retail prices.

One could argue that this ruling will increase the "price" of bundled software, at least in some subtle way, although it will be offset by the unbundled software that becomes available. Not sure which arrangement is preferable from the consumer's point of view, but it's nice to see EULA's being subjected to this sort of scrutiny.

Interestingly, Microsoft's Not For Resale products have (or used to have) the same situation... resale was forbidden, but it was stated in the EULA. Of course, the EULA isn't binding until you opened the package, so Not For Resale copies can legally be resold, regardless of what it says on the box.

Re:good idea, but not in this case

[Sloppy]

Softman was being bundled Adobe packages and breaking them up and selling them individually for a profit.
...
This is a company basically ripping off Adobe.

So if I buy the Necronomicon and De Vermis Mysteriis from a store and they give me $0.50 discount on the bundle, and then I resell them seperately at pull price, I am ripping off the store or publisher?

If I buy 100 copies of the Unaussprechlichen Kulten and get a volume discount, and then resell them at retail price, am I ripping someone off?

Breaking up bundles isn't ripping anyone off. The person doing the reselling is doing the extra work of finding customers to buy the stuff.

Re:good idea, but not in this case

[Guppy06]

"This is something different than Joe User selling his copy of Windows 98 that he got with his computer that he doesn't use."

One of the differences is that Joe User doesn't have the resources to fight EULAs. It required someone who was making serious money off of "legal" EULA violations to pull this case off.

"They are selling the bundle cheaper, because it is a bundle."

How is it being a bundle justification for the higher prices for the individual apps?

When you buy a boxed set of books, often it is less expensive than the individual titles simply because the boxed set uses paperback binding, inherently cheaper than hard-covered books. But I see no glaring cost-saving in use with bundled software. They still have the same number of CDs, often the same instruction manuals included with it, and the only differences I can see are the packaging and maybe the jewel case. Sure, there are instances where bundled software is actually integrated together in the code, but from the sounds of it all we have here is Adobe taking the contents of five cheap boxes and putting them into one slightly larger cheap box.

"What will end up happening if this takes off is that bundled software will no longer be cheaper than the individual packages."

There's no reason for the bundles to be less expensive than the individual apps more than a few cents for the savings in cardboard. If the bundles save their money by not including paper manuals, then it's time for Adobe to condsider selling individual copies of software without paper manuals. Any other reason for the drastically lower pricing in bundles is a direct result of artificial mark-ups in the individual apps. Even claiming the drastic price difference is a result of stamping all the apps on fewer CDs is a joke, since we all know the price of blanks CDs.

"This will do nothing but hurt the end users is companies are allowed to do it though."

How? The only people I see getting "hurt" are the companies that are losing out on their artificial mark-up. The only money they'd be losing is money they shouldn't have made to begin with. And even then they're still turning a profit because they ARE selling the bundles. On the other hand, the re-seller could still get hurt if part of the bundle isn't as popular as the rest.

I can't see the situation you're fearing as anything but capitalism at it's best. The publishers (Adobe in this instance) are now forced to compete with their own pricing schemes on a level playing field, putting market forces and the consumer in charge of the value of their software instead of the publisher.

Re:good idea, but not in this case

[Guppy06]

"You've got it backwards"

It's all relative, actually. The prices of the individuals and the price of the bundle affect each other.

"You've seen "Buy 4 foobars, get the 5th one free!"? Same idea."

And why does a company do this? I can think of three possibilities:

1.) This is a temporary sale. The manufacturer is selling their foobars near or at the break-even point (or maybe even below) in order to generate more customers. Adobe has been doing this for a while so I don't believe they fall into this category.

2.) Because of packaging constraints, it's actually less expensive for the manufacturer to sell foobars in groups than individually. Adobe software isn't particularly delicate and the mass and volume of the contents of five individual app boxes is about the same as the mass and volume of the bundle box. So Adobe doesn't fall into this category either.

3.) The foobars are only worth 80% of retail and the manufacturer marks up the individual foobars in order to create the illusion of value (and make a little extra profit on the side). This sounds closest to what Adobe is doing.

"the price of the bundle is less than the sum of the five apps; this is supposed to encourage you to buy the higher-priced bundle, making more money for the publisher than if you'd only bought 1..3 apps individually."

But Adobe is making more money either way.

1.) The individual apps are marked up 25% of what they're really worth, so Adobe is making more money. Adobe wins, consumer loses.

2.) The bundle is less expensive than the sum of the individuals, making it seem more valuable/cost-effective than it really is (because the individual apps are marked up). Adobe sells more of the bundles as consumers buy more than they really need. Adobe wins, consumer loses.

EULAs

[solendril]

Somewhere along the line, people forgot that ownership of an object meant something. Corporations have been using this to their advantage ever since. If I legitimatly buy a product, why is there any legal issue to be resolved in my selling it to another person, as long as this object isn't duplicated in the meantime?

Now of course, this brings up the even larger discussion about the legitimacy of copyright law to begin with. I'm unclear on how creation implies ownership... Take the case of geneticly modified creatures. Can a corporation really create and then OWN all resulting creatures? What if these beings have minds of their own? I doubt a super-rat made in labratory test tube would take kindly to being owned body and soul by it's so called "creators." (Don't get me started about the legitimacy of THAT word.)

But let me get back to my question of ownership. Inanimate objects are capable of being possessed, not simply because they can't argue (unlike slaves for example) but because they have no will. If you possess, do you not also own? Yet in our society, somehow ownership is still retained by the corporation. The end user is, of course, relegated to use. I don't know that this makes much sense. One of the basic, fundamental principles of humanity is the idea that things have innate value. I would argue, that this value comes from the idea of possession, that you somehow own the object, and thus it is valuble.

Did you know that the vast majority of land pollution is on publicly held land? What is owned by everyone is valued by no one, as I once heard. Because ownership by everyone isn't true ownership. One of the most powerful things I've ever seen was to go to a poor neighborhood in my city and have someone point out to me the houses that were owned, and the houses that had renters. The home-owners took 10 times as much care of their houses, even though they were very poor. (They had been helped to lease and own these houses through a new city program.) The change in atmosphere was striking and profound. If it's mine, I'm not going to mess it up!

With software, EULAs are ridiculous. With art...(or life) I don't know. But the digital age has certainly brought challenges to our economic systems.

Most Very Excellent

[Renraku]

This is great. This means that draconian EULAs might not have the legal punch that the writers' expected them to. I mean, hopefully it will force EULA writers to not be as anal about what they put in EULAs. I won't give any specific examples, because anyone with Microsoft software will be able to open up some sort of EULA and read for themselves. Really, its all a matter of what the court deems fair and unfair. Microsoft has some pretty bad EULAs, and I know most people would NOT agree to them if they were written in plain, every day english.

Re:Most Very Excellent

[Guppy06]

There's a lot to be said about bluffing. Just because a EULA doesn't hold legal water doesn't mean the end-user won't believe it.

Good deal!

[GSloop]

The sale of software should in general, follow the rules and protections of a sale of goods.

This would prevent the slipping in of "contract" style wording, and the attendant need to have every software license reviewed by a lawyer. Sure, really wild terms in a software license might get thrown out in court, but that will take time and more importantly MONEY!

This is why UCITA is 3 or 4 or 100 times as bad as the current situation. UCITA allows all software to be contracts, and formalizes the legal standing, so contracts become the norm.

As a follow-up, I beleive that all software should also be subject to normal liability/tort law. If software doesn't do what it's supposed to do, and the vendor didn't take adequate care to ensure that it would, the vendor should be liable for damages.

I made this point a day or two ago, but again...
Sure, software might cost more to produce if it had to survive a "reasonable" test for correct function. But how much do the companies that employ us as consultants/help-desk people/network engineers, etc, spend having us chase bugs down that shouldn't have been there in the first place. Add that to the "cost" of the product, and you have the "real" cost. And I submit that it's way, WAY higher than most of us realize.

Until there's some real threat to shipping crappy software, the usual suspects will continue to "ship early, fix bugs later" if ever. Oh, and while you're at it, "add lots of fluff, and cool UI elements" (Does this remind anyone of Windows XP - a totally gross fluffy UI (my opinion) and a HUGE GAPING hole in security.) Adding some teeth to the legal system will give everyone a _chance_ to slow down and get things right. The shareholders will understand, the board of directors will understand etc.

Until we all require decent software that runs right, and a sale process that is fair, and understandable, we're going to continue to get screwed. UCITA and LONG LEGAL EULA's will always favor the software vendor. The court system may now be (finally) realizing that software isn't that much different than any other good, for example, shovels or cars or VCR's. These goods don't (AFAIK) have EULA's, and are subject to serious repercussions should they work incorrectly. Plus your ability to force the vendor to refund your money is much greater.

Repeat after me...
"Software just ain't that different from regular stuff we all use every day" In fact, software/firmware is in lots of devices, and we don't accept similar restrictions in their use...what about cell phones. Did you have to agree to a EULA to use it? Does it reboot/crash often? How about your VPR or Toaster or Car or Microwave?

Screw EULA's. Screw UCITA. They're both just ways to tip the balance of power WAY over to the manufacturer/seller. They don't offer any protections that a resonable seller needs.

Cheers

Re:Good deal!

[dfenstrate]

Without an EULA, the user would be able to do as he pleases with the software, including making copies to his co-workers to his heart's content.

Not quite. Copyright still protects software, even in the abscence of an EULA. EULA's only serve as an attempt to further restrict a customer's use of the software. They're already protected against piracy.

Re:Good deal!

[GSloop]

Remember when Borland had the "book" license? This software is like a book. You can use it, but no one else can use it while you're using it. If you give it to someone, you no longer have the "book." etc. That's a practical sale of goods sale. This makes sense, and EVERYONE understands it just fine. EULA's just make things more confusing, and in my opionion, make it more likely that the user will violate those terms. Users who don't understand the wild legal terms in the license, then say, "Well screw the lawyers who wrote this, and the company that paid them. I'm going to do what I want." If the terms were clear and simple AND REASONABLE, I believe that most people would be willing to abide those terms.

EULA's don't prevent distribution any more than a common sense goods style sale. The law should make clear that copying software and not purchasing is illegal. But should the vendor be allowed to make you agree to a EULA to use your music CD or DVD Movie? I don't think so.

The law should treat these as intangible goods. You get to use the software if you purchased it, or if someone gave it to you, but the vendor can't throw in all sorts of "extra" clauses that allow them to prevent you from publishing benchmarks etc. Or search your computer any time they please to "make sure you're honest..."

The problem you describe isn't addressed by any EULA. You want to prevent copying - that's not something that the EULA prevents. Music trading (MP3's) isn't legal and it happens lots. There's not a EULA for music CD's, but it's still illegal. Same with DVD's and virtually any other intangible property. Why does software get different treatment? Why does software escape the common sense "sale of goods" rules?

I don't mean to be hostile... But everyone understands the ideas around intangible goods. You get the good when you pay for it. You can't just give copies of these intangible goods away to people who aren't going to purchase it too. The EULA is just a red-herring the vendors want us to believe that they need to prevent massive copying, WW III, belly button lint, and the end of life as we know it.

I think EULA's should get DUMPED. They don't serve any purpose other than giving the users sticks, and the vendor M1A1 Tanks and M16's. And like any other situation where the parties "bargaining" have massive disparities in power, the party with less power gets screwed. EULA's only help lawyers and the vendors who want to force them on you.

Re:Good deal!

[cpt kangarooski]

Bzzt, wrong, but thanks for playing.

Copyright will protect the work even if it is sold as a good, just as it protects books, CDs, DVDs, etc.

Both copyright and contract disputes have to be ajudicated in court -- the only difference is federal trial courts v. state trial courts.

So the reliance on a EULA is in no way better than reliance on the law... unless you're a very greedy publisher and want to have your cake (copyright on the software) and eat it too (more restrictive contractual arrangements)

The only exception I see is to cover those rare, unusual cases, e.g. site licenses.

Re:Good deal!

[Sabalon]

You buy the software - money is gone. You take the software home, you open the plastic wrapping and the box. You read the EULA, which comes up as you install the software from the media.

You decide you don't like the terms of the EULA and refuse to accept and take the software back, and you are told "Sorry man...we can't give refunds on open software, music, or videos unless they are defective. Then we can only replace for the same item."

That just doesn't sound right. At least the EULA's should be printed on the box where you can see them before buying.

Re:Good deal!

[cpt kangarooski]

But what new limitations are being imposed? Indeed, what limitations do we want to allow developers to impose in what are generally indistinguishable transactions from sales of goods?

As the learned judge in Softman points out, merely because two parties label their commercial relations contractual does NOT make it so. Public policy concerns (among others) will always be able to override them.

This should be especially true in the case of copyrighted works -- there is oft times no public benefit to permitting this. The Bobbs-Merrill resale clause was struck down by the Supreme Court, yet is extremely similar to EULA provisions. Would you support the dismantling of the first sale doctrine that has proved so useful in the past?

Re:Good deal!

[Sabalon]

If they want to keep calling it some sort of contract that you need to agree to, then I want more than what the company decided were the bulleted basic terms - I want the whole thing out there!!!

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.

Re:Still unclear.

[Dwonis]

Why did you buy PCs with Windows on them, if you didn't want it?

What does this mean to software hackers...

[ThomasMis]

I write software for companies so I can eat. On a contract I don't retain ownership of the code, I could usually care less. But I include a clause that says something to the effect that my software is good for no particular purpose and that if it breaks, I'm not liable. This is a good thing for small time guys like me. As I can't really afford to run to a lawyer all the time. But if that doesn't hold up anymore, am I going to face trouble when my call into a Win32 API hangs?? I call LPTRSomeWin32Function() in my software, it blows up and end user sees an error box pop up in the application that I wrote. Is the court going to tell me that I'm liable for broken software when the libraies I use that I didn't write cause the process to go boom?

I don't know... this is all food for thought. If I'm sued can I turn around and sue the developer of teh library? If I'm linking into glibc and it breaks can I sue GNU? Richard Stallman?

Re:What does this mean to software hackers...

[CaptainCarrot]

This is a fundamentally different situation. The contract in this case is not a license for your clients' use of the software you develop while the contract is in effect, but for your services as a programmer. All rights to your work are therefore owned by your client, not licensed by you to your client, as it was "work made for hire". Work made for hire is a special case under copyright law, and means they'd own all rights even if your contract didn't specifically grant such to them. This isn't a license at all, and certainly not one made after the fact as a EULA on software that comes in a shrink-wrapped box is.

I'm not a lawyer, but since my wife is a freelance writer I have some general awareness of copyright law.

You can sue RMS all you'd like for whatever reason you'd like, but whether or not you'd win is a different question.

Re:What does this mean to software hackers...

[Yekrats]

Big difference!

There's a big difference in that your typical code jockey will (should) set up a contract with a client. Both parties agree to certain terms, and those terms are ideally carried out. Both the end-user and the code monkey are protected because of that contract.

The shrinkwrapped click-thrus take away all rights from the consumer and only benefit the company. They take away rights to sell the software (whether you agree to the contract or not). Huh?

Re:What does this mean to software hackers...

[WNight]

I don't see why you should get any lenience that a car manufacturer doesn't, or why you should be treated any worse.

The general way it works is that if the product failure is your fault, you are responsible for fixing it. If it's something you should have caught and it could be called negligence that you didn't, you can be forced to offer refunds, etc, because the product isn't suited for the use you claimed.

Now, if it barfs years later on an OS that didn't exist when you wrote it, I think it's likely that it's failing because of someone else's code and is beyond your responsibility.

For the car example... If you buy it and a wheel falls off, it's the manufacturers problem. If it's simply a bit of a lemon years later, nobody is held responsible. If you have labour done by someone who isn't authorized and the car breaks in a way related to the repair, the manufacturer isn't liable.

Seems reasonable in both cases. Why do you think otherwise?

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.

Re:Acceptance of a Contract

[SuiteSisterMary]

The arguments here are a) it says on the box that by buying it, you're agreeing to the license you haven't read yet, or b) you bought the physical media; you need to agree to the license to get to the bits on it.

Re:Acceptance of a Contract

[sheldon]

Agreed. Honestly that's always been sort of this issue in the back of people's minds but I am not aware of any court cases that have decided the issue.

I believe UCITA has language in it which makes shrinkwrap licenses legally binding... sort of a "well just in case, we'll put this in there."

This software licensing area has gotten quite ridiculous. I don't have a license when I buy a CD, book or any other copyrighted material off the shelf... why software?

It's time we start applying copyright law to software and move away from this nebulous in between copyright and trade secret. One or the other, but not both.

Re:Acceptance of a Contract

[Doppleganger]

you bought the physical media; you need to agree to the license to get to the bits on it.

Wait, lemme get this straight... I'm paying $40+ for a completely useless cd-rom? (Useless, because the physical media is absolutely worthless without access to the bits encoded on it)

Hmm.. Since the bits are physically encoded on the media, changing its structure, wouldn't they automatically be part of the "physical media"? How can the "physical media" possibly be separated from the part you agree to the license for?

The key to the judgment...

[gordguide]

... (in my opinion) was that the Judge found that because:
1) A one-time fee paid for the software and the license; and
2) The license granted use of the software forever for this one-time payment;
Then the transaction became subject to all the ordinary laws about buying any good.

Implied in that (again, as I see it) is that SW developers can get out from under this judgement by employing:
A scheme similar to what MS is proposing for corporate clients (the annual subscription); or
Creating Software that expires; or
some other, new licensing scheme designed to thwart the ruling.

Standard Disclaimer: I am not a lawyer and I always seem to interpret these judgements differently than real lawyers do (or at least that's what lawyers keep telling me).

Re:The key to the judgment...

[Technician]

I can just see MS software and Adobe software CD's in mass mailings that have a 30 day 1000 free hour trial period. Sound familiar. You've got mail. You can't send mail or print anything until you subscribe. Adobe and MS disks may become as common and as usefull as AOL disks. They will know how to get past the definetion as a sale minor technicality. They sell subscriptions to the software. You buy a certificate, disk and manual at the store for a nominal charge. A small modification in coding will eliminate any confusion that the software subscription is a purchase. I'm serious. Look for it. This is not a troll.

Re:Is EULA Legally valid?

[Dwonis]

Sigh. I won't say that copyright infringement doesn't cost companies money, but if I, for instance, was only willing to spend $10 on Windows XP, so I copied it from a friend instead of buying it (i.e. I would never have bought it at $150), then Microsoft would have failed to gain $10, not $150 (and it certainly did not lose any money).

Even this is view of losses is questionable, since Microsoft has already lost hundreds of "potential revenues" from me, due to the fact that I run Debian instead of Windows.

I won't even bother to address the difference between stealing vs. copyright infringement, since this has already been discussed at length, and you obviously have no desire to educate yourself before you post.

Whew!

[cdgod]

Is it just me, or did you just feel a HUGE wight lifted off your shoulders?

Click to agree? Yes/No

(By clicking you are abidding by the following license: The clicking action does not guarantee the quality of the opinion of the user nor the author of the message. The user takes full liability for any negative outcomes of posting their optinions on a website. The user gives up their rights to own the speech of their opinion. By clicking the user hereby gives permission to all who read the opinion to have full access to their harddrives with and without any prior notice.)

apparently..

[Suppafly]

So apparently, possession really is 9/10's of the law

Original PDF file of decision was deleted...

[Pollux]

...so here is a link to Google's cache of the file (converted to HTML from its original PDF).

Re:Of course, this supposes ANY worth to the bundl

[istartedi]

Agreed. I've still got a copy of MS Golf and Baseball that came with a PC, circa 1996. Never opened. Didn't even break the seal. I've been saving it for the next garage sale, and NO, I don't think it's morally wrong to sell stuff like that even when the EULA says you can't. That's because EULAs that prohibit separation of components run contrary to the way commerce has been conducted for thousands of years. This is part of that teen, tiny, little intersection of agreement between me and the AIP movement. I'm happy to see that a judge sees it the same way.

Disclaimer of warranty

[stevenj]

I think software manufacturers should be able to disclaim warranty, just like you can in any other industry: by prominently labeling the product to be "AS IS, no warranty" before money changes hands.

For free software that you just download (i.e. excluding vendors such as Red Hat), no money changes hands, so it should be enough to have the warranty disclaimer attached clearly to the downloaded package. (Or better yet, for gratis software there should be a presumption of no warranty.)

I never understood how unilaterally imposed "contracts" that take away rights you have by default under copyright law, and which you can't even read until after the sale (much less negotiate) could be held up as valid.

Re:Disclaimer of warranty

[GSloop]

You say...
I think software manufacturers should be able to disclaim warranty, just like you can in any other industry: by prominently labeling the product to be "AS IS, no warranty" before money changes hands.

Well, in most "goods" sales, you can't disclaim warranty. It must be fit for the purpose designed. Actually, you CAN disclaim them, but a court will laugh at you is you try to use the disclaimer as a defense when you get sued.

The point I've made is that this should then be an individually contracted process.

One shouldn't be able to escape the difficulties of contracting by just including a EULA. If you want a contract, then you must negotiate with me - personally!

If you just want to sell me software, you should have to sell me a copy. I get all the normal rights available to other intangible goods, but you can't impose additional restrictions.

The GPL might have some difficulties under this system though... [sigh]

Re:Disclaimer of warranty

[stevenj]

Well, in most "goods" sales, you can't disclaim warranty. It must be fit for the purpose designed.

In a word: bullshit. See the Uniform Commercial Code, section 2-316. You can disclaim all warranty, provided sufficient notice up-front. (Haven't you ever bought anything at a closeout, or at the Salvation Army, where things were prominently labelled "as-is?")

Re:Disclaimer of warranty

[ChaosDiscordSimple]

One shouldn't be able to escape the difficulties of contracting by just including a EULA. If you want a contract, then you must negotiate with me - personally!

Actually, I'm fine with mass-produced EULA. I just want them handled like typical contracts. On paper, with my signature before money or product changes hands. Software publishers want people to respect EULAs right? Few things generate as much respect as your signature on a legal document. I suspect people would think alot harder about EULAs if the casher refused to sell them a product until they signed a page of small type.

Re:Disclaimer of warranty

[WNight]

You can sell a broken car "as-is" if you say it's broken. Ditto with a TV.

Anti-"as-is" laws were created to stop people from selling something broken and hinting that it worked, or would keep working. But if you buy something from a wrecking yard, there's an implicit as-is, unless they've removed the part themselves, at which point you might assume they've tested it.

Resale

[TheSHAD0W]

But you could resell that CD legally, if you wanted to. With a EULA governing your actions, even if you uninstalled the software and erased all backups you STILL couldn't legally resell a software package. That's what's being fought over.

An observations about the ruling

[kscguru]

The distributors pay full value for the merchandise and accept the risk that the software may be damaged or lost. The distributors also accept the risk that they will be unable to resell the product. The distributors then resell the product to other distributors in the secondary market. The secondary market and the ultimate consumer also pay full value for the produce, and accept the risk that the product may be lost or damaged. (page 13 of ruling, emphasis mine)

Does this imply that software sold under the license model has an implied guarantee by the distributor that the product will not be "lost or damaged"? Since it is a license for a service, then the original distributor is responsible for any problems in the distribution - that's why they slap the EULA on the software, to protect against malfunctions, etc. But this implies that the distributor is responsible for guaranteeing the media - if it breaks, they would HAVE to replace it, so long as I could prove I bought it. They would have to replace it for the duration of the licence - in many cases, forever. You scratch a Windows 95 CD? They gotta replace it - at cost, because it's a licensed service and not a sold product.

IANAL - but wouldn't this create some additional problems for distributors, if people actually make use if this?

Re:An observations about the ruling

[acceleriter]

Are you kidding? The software vendors want to have their cake and eat it, too:

- You can't resell it. It's licensed.

- Your CD melted? Sucks to be you. Guess you'll have to buy another one.

In an ideal world, the claim that software is only licensed would require lifetime replacement of media for the cost of shipping, and would at least make copy protection a bit less of a shafting for the public.

Re:Is EULA Legally valid?

[jonabbey]

I define those who view EULA's just pieces of paper and justification for stealing software to be no worse than the corner store robber last night, who made off with 25 dollars. But, you dear friend are robber more than 150 dollars+ each time. Understand this.

So who said that being in favor of the maintenance of the First Sale doctrine means that one is in favor of stealing software?

If Softman did not install the software that came bundled with his system at all, why shouldn't he be able to sell it to someone else? That's what's at issue here. It's like you saying that a K-Mart shopper who buys a CD, then turns around and resells it unopened for half-off is breaking the law.

That can't be right, can it?

Re:Is EULA Legally valid?

[tkrotchko]

"Now zoom back to the Kmart cd, it said I cannot open it and return. What's the difference here folks? "

This is a straw man argument.

What MS's EULA's say is that if you want to sell the bundled software *you can't*. That is, the EULA says the software is an integral part of the hardware.

Lets push that aside and use an example. You want to buy a Dateway 2000 computer but it has MS Office bundled with it. Great. You already own a copy. So you don't need the copy of MS Office.

Dateway won't sell it without the MS Office.

What should you do?

1) Refuse to buy the computer - maybe. But the price is okay, and you really want a Dateway.

2) Buy the computer, and install the 2nd copy on your laptop - great idea except for one thing. The EULA says it belongs to a different computer. That seems silly right? You don't want to be a "law breaker" so you go with...

3) Buy the computer, and sell the new copy of office to your buddy for $50 - great, except this is the same as #2 above.

#2 and #3 don't make sense from anybody's viewpoint except MS's. They sold me a copy, and I can do with it whatever I want as long as I'm not violating the copyright. #2 & #3 don't violate a copyright, but they violate the EULA.

What the court appears to be saying is that when you buy software, you can treat it like a Music CD, or a book. MS may not like that use, but nonetheless it makes sense to treat software like a book.

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

[stevenj]

Unlike typical EULAs, the GPL only grants rights, it does not take any away.

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:

You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License.

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

[jonabbey]

If I have a piece of software in my hot little hands, and it's not governed by any licence at all, that means I can do what I want with it. Don't trick yourself. If any part of a license is invalid, the rights reserved by the producer always decrease and the rights assigned to the user always increase.

That's not what copyright law says. Sometime back they changed the copyright law (Boerne convention?) so that no filing or declaration of copyright was required to place an item under copyright. If you have something that you didn't write and it is not in the public domain and you don't have a license to copy it, then you would be in violation of copyright to do so.

Now, the real question is: can a COPYING file in a tar file count as a license, when the user doesn't need to sign a contract or indicate their affirmative agreement to the license terms in any way? This might get touched on by a revision of EULA practices, and the GPL might well be ruled to be a legally deficient mechanism. That would require some judge to decide that sharing of software must be either public domain or on some sort of contract basis, however, which seems unlikely to occur.

Re:Still unclear.

[A_Non_Moose]

Thus spake Dwonis
Why did you buy PCs with Windows on them, if you didn't want it?

ROTFLMAO...

Damn, dude...if I hadn't piddled my mod points away just a few moments ago, I'd have modded you as "Funny and Insightful"...

(snicker)
You have a gift...use it for good and not evil.

Moose
.

This is a complete misrepresentation of copyright.

[Nindalf]

Copyright law clearly recognizes the distinction between owning a copy of a work, and owning copyright to a work.

Owning a copy of a work not only gives you normal ownership of the physical copy of the work, but also fair use rights to the information expressed in that copy. These are transferred along with the physical copy, should you sell it or give it away.

Owning copyright to a work gives you the exclusive privilege to create copies of the work. This privilege may be granted to others through licenses.

If you sold me a print of one of your photos, I would be entirely within my rights to resell it, exactly as if you sold me a sack of potatoes.

Software works like that, too. If you sell a copy of a program, you don't give up copyright on it, and the purchaser gains the right to install it, to run it, to back it up, and to resell it. Copyright law has been changed to handle the specific needs of over-the-counter software.

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.

This is ridiculous. If Windows XP was sold without a EULA, you would obviously be buying a copy, not the copyright.

EULAs are no more necessary or beneficial to software than they would be for toasters or automobiles. This has been quite clear since at least the mid-80's, when the whole idiotic business should have been dropped.

Re:Is EULA Legally valid?

[praedor]

Wrong. EULAs are crap and not worth the paper their printed on or the memory bits they're stored in. I OWN what I buy...to do with as I see fit. End of story. EULAs belong in the toilet and are to be largely ignored.

Re:Is EULA Legally valid?

[Suppafly]

except if you bought a cd from kmart, opened it, discovered it didn't work in your cd player because it had some bizaare not really a cd stuff on it and took it back, you would be morally justified in returning it.

Re:Natural copyright

[CaptainCarrot]

If the original poster works like most contract programmers do, he's almost certainly an employee for the purposes of determining whether or not his code belongs to his client as work made for hire. See this circular from the Copyright Office.

It never really caught on.

[Nindalf]

Software was first just something that came with the hardware, or developed in-house, then as the industry developed, software companies came along which would license one program out to multiple customers, and it just grew from there. Software was being *nudge* *wink* licensed over the counter in shrink-wrapped boxes since before it was 100% clear that copyright even really applied to computer software.

When it was cleared up, and special provisions for software were written into copyright law (in 1980, in the USA), the pseudo-licensing was already a habit. Habits like turning disclaimers of quality into license terms ("You know all that stuff we claimed in the advertising? Well, if those were lies, you can't sue us!") are not casually abandoned in a litigious society.

Basically, the ability to impose any terms on your customers is better than the deal normal copyright sale gives you, so once the industry was in the habit, they had no reason to change.

Since newcomers usually just follow the herd, I sometimes wonder how many people in the software business even know that EULAs are not entirely necessary to sell software. The people most likely to know are the lawyers, and can you imagine a lawyer hired to write up a EULA telling his customer, "You know, you don't need me, you could just sell your product as they do in most industries." ?

EULA's aren't worth anything

[schon]

OK, here's my take on the whole "EULA" mess.

First: When you buy something (music CD, software, book, etc.) covered by copyright, you're actually buying it. This is very straightforward, and has been held up in court (book publishers attempting to sue used book stores.)

OK, so you've bought software, you go to install it - you open it and read the EULA - and are disgusted that you now have to give your firstborn child to Bill Gates, so you think "No, I don't agree to this."

So - you've not agreed - you click "I agree" (because it's the only way to install the software) and you continue to use it.

You're 100% legally entitled to do this.

First and foremost, the argument of the EULA as a contract is absurd. A contract is an agreement negotiated between two parties - since there was no negotiation, there is no contract.

Second, there's the argument of "you clicked 'ACCEPT', so therefore you agree to the EULA" - Wrong. I rejected the EULA - as in ALL of the EULA - so what's saying that I'm bound by clicking 'I accept'? That's right: the EULA that I rejected. Since I rejected the EULA, it has no bearing over what I can and can't do with the software. Clicking 'ACCEPT' doesn't mean that I accepted the EULA - it means that I rejected the EULA, and am not bound by it in any way.

Clicking 'I ACCEPT' doesn't mean anything. Besides the fact that the EULA is not a contract, clicking 'I ACCEPT' wouldn't bind you, because there is no way to prove that you're the one who clicked. That's why real contracts are signed - to prove that the person who accepted it is one of the parties to it.

Now, since the EULA has no hold over me, what's allowing me to use the software? Standard copyright law, that's what. I am bound by the limits of copyright law, which doesn't say anything about using the software (copyright only deals with distributing copies.)

Now, if the EULA was presented to me before I bought the software, and I signed it - then it would be a whole different story.. and I realize that with the advent of UCITA, this may change, but for the time being, EULA's aren't worth anything.

Re:EULA's aren't worth anything

[SecurityGuy]

Now, since the EULA has no hold over me, what's allowing me to use the software? Standard copyright law, that's what. I am bound by the limits of copyright law, which doesn't say anything about using the software (copyright only deals with distributing copies.)

Yes, and IIRC, some blockheaded judge bought the argument that copying the software from disk to RAM constituded making an illegal copy according to copyright law. You're not allowed to do that. The license grants you the right to do that. So congratulations. If the EULA is invalidated you simply have no legal way to use the software.

Ridiculous, of course, but it makes a bizarre sort of sense if you accept the premise that copying the software to RAM is "copying". It is, but only as much as your reading these words is making a copy on your retina. Time for an entrance exam for judges, IMO.

Re:EULA's aren't worth anything

[schon]

IIRC, some blockheaded judge bought the argument that copying the software from disk to RAM constituded making an illegal copy according to copyright law.

I doubt that, can you provide a reference please?

it makes a bizarre sort of sense if you accept the premise that copying the software to RAM is "copying".

Even if this was true, making a copy of something you already own for your own use is legally allowed under copyright laws (for example, before AHRA, it was legal to copy a CD to tape to listen to it in your car.) Since copying from HD to RAM (or from CD to HD) would be for your own use, there is no way it could conflict with copyright law.

Re:EULA's aren't worth anything

[seaan]

This concept was the basis behind the DMCA "changes" to the copyright laws. The philosophy assumes that any coping is illegal, including the concept of copying a program from a disk to RAM. Anything else requires a specific excemption (like your AHRA example).

This is a perfect example of how the copyright law has worked over the last century or so. Various stakeholders in the copyright arena periodically get together in a conference. The copyright holders make broad claims (like above). Instead of contesting it, the rest of the people just carve out exceptions for themselves. An example would be Librarians get an exception to make copy from disk to RAM, if they are making an archive of the program, and so-on.

The best explanation I've seen is Jessica Litman's "Digital Copyrights", which explains how this "any copy is an illegal copy" doctrine first got introduced and worked its way into the DMCA. This is a great explanation of why bad assumptions and all sorts of exceptions appear in copyright laws (biggest single reason, no one representing the general public takes part in the conferences, and the congress who should be looking out for us just rubber stamp the results).

watch your quotation marks

[_|()|\|]

"... you bought that copy, EULA or no EULA."

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.

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

[haruharaharu]

Now, the real question is: can a COPYING file in a tar file count as a license, when the user doesn't need to sign a contract or indicate their affirmative agreement to the license terms in any way?

You'd better hope so. If it doesn't, then you have no right to distribute the tar file.

Re:Natural copyright

[CaptainCarrot]

In that case, probably not, but as it's dependent on case and agency law rather than a clear legislated definition, it's forever unclear. It's wise to clarify matters in the contract, in any event.

IMO, the difference between consultant and contractor: "Consultant" is a title, "contractor" describes a relationship. In my office, we've never had a consultant in that wasn't a contractor, but we've also contracted with lots of folks who weren't consultants. In general, when we've contracted with single individuals for their services, they've worked on our premises under our control and could be assigned to any task that fell within the scope of the contract. Obviously, I was in error in assuming that this was the general practise.

17 USC 117 allows use of software without a EULA

[yerricde]

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.

Tested in court?

[andaru]

I have often wondered about this. Does anyone know if this has been tested in court?

I remember opening a copy of the Borland C++ compiler on floppies. There was a little circular seal on the envelope and a notice which said that breaking the seal constituted agreement.... I cut the envelope open and left the seal intact (which basically amounted to a private joke between me and the envelope).

But seriously, Mr. Jones (who knows very little about computers) has Jimmy from down the street come over and set up his computer. Jimmy may agree to all sorts of licences while installing all of the software that came with Mr. Jones's system (Mr. Jones is in the kitchen making a souffle during all of this). Mr. Jones hasn't agreed to anything (except maybe to share the souffle), so he isn't bound by any licence.

Jimmy may even install some software he pirated. Mr. Jones may think that the software came with the system (or is part of the OS, as if he would know the difference).

Ignorance of the law is not supposed to be an excuse, but what if the average person cannot reasonably be expected to know if they are breaking the law?

Re:Tested in court?

[Eppie]

While I can't put my finger on specific case law, Jimmy would be considered to be Mr. Jones's agent in the transaction. Since Jimmy has all the authority needed to install the software, any reasonable court would say that authority extends to agreeing to EULAs, since agreeing to EULAs is a commonplace part of installing software. This is so regardless of whether Mr. Jones understands all the deails.

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.

Re:Still unclear.

[Renraku]

Microsoft should be FORCED to sell you a complete version of Windows, manual, S/N, licence, AND the standard media if they want to make money from a bundle sale like that. My laptop came with WindowsME on it, but I got no WindowsME CD, only a recovery CD which will format my HDD if I use it. That's unacceptable to me.

How so?

[Nindalf]

Well of course EULAs are nessesarly if source code comes with it.

That depends entirely on why you are distributing source code. If it's because the software is source-portable, and you want your user to be able to compile it for his own system, then you don't need a EULA. You might want to remind your users that just having the source doesn't mean they are allowed to redistribute it, but you certainly don't need to enter into a contract with them to prevent them from doing so.

If you're distributing the source so someone can make compatible software, you probably want an NDA (Non-Disclosure Agreement; means they can't tell others what they find in there), among other things. That's certainly not an End-User License Agreement, though.

I think the distinguishing trait of a EULA is that it is mandatory for every end user of the product. Optional licenses, such as open source licenses, are not targetted at the end user as an end user, but the end user as a distributor or developer.

I'm really not seeing any situations where going from distributing just the binary to distributing the binary plus source would make you need a EULA. It might make you want to offer some sort of additional license, to encourage users to share bug fixes, though.

Is it just me that remembers this post?

[Chris Burke]

I'm going to have to go looking now... I swear I've seen both of these (the parent and reply) posts -- word for word -- before in another thread. I think we've been trolled.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Necronomicon, et al...

[Macrobat]

So if I buy the Necronomicon and De Vermis Mysteriis from a store and they give me $0.50 discount on the bundle, and then I resell them seperately at pull price, I am ripping off the store or publisher?

Man, you're ripping off the Old Ones, and you've got a lot bigger problem than a silly EULA.

Re:Microsoft EULAs

[glwtta]

eh, it's their products - shouldn't they be the ones to decide what to do with them? if you don't like their license, don't buy the product. Hell, if they can dictate what content you can or cannot create with their products (eg FrontPage) certainly they can dictate what you are allowed to do with the products themselves?

There's a reason so many people hate their guts (and, incidently, not always their products) and it's not because we are bored and need to bitch about something.

For the umpteenth time: GPL != EULA

[psamuels]

If you just want to sell me software, you should have to sell me a copy. I get all the normal rights available to other intangible goods, but you can't impose additional restrictions.

Sounds good.

The GPL might have some difficulties under this system though...

Others have said it better - but it bears repeating, because so many people seem to miss this point: The GPL has the opposite function to a typical EULA: it gives additional rights, rather than purporting to take rights away.

The GPL does not restrict your rights under copyright law. It gives you certain rights you do not have under copyright law -- namely, the right to distribute copies of the work, and to distribute modified copies ("derivative works"), subject to certain conditions.

Without a license such as the GPL, you do not have the right to redistribute copyrighted software at all. With or without modifications. That's the whole point of copyright law.

Your typical EULA, on the other hand, doesn't give you any rights you didn't already have. Instead, it claims to take away some of the rights you have -- namely, the right to use your software for whatever you wish (excluding redistribution - that's where copyright law steps in).

(Note of course I say an EULA "purports to" and "claims to" do such and such. I refuse to agree with those who say that my cutting open a box or clicking on an icon, in the privacy of my own home, bears any resemblance to so much as a handshake with an authorized vendor rep, much less a seal or signature. How would you notarize a click?)

Re:For the umpteenth time: GPL != EULA

[GSloop]

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!

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.

Re:For the umpteenth time: GPL != EULA

[Frater 219]

But, I would guess that you would say that the GPL is not as free as the BSD license?

The BSD license gives you even more freedom. It may potentially give the user of your derivative work less "freedom" but that's another matter.

The point of the GPL is to grant particular freedoms to all software users, yes: freedoms to read, learn from, and improve the software they use. It isn't the public domain, and it's not meant to be the public domain. By requiring makers of derivative works to grant their users the same freedoms they themselves enjoy, it aims at maximizing the amount of software for which users have these freedoms.

The (modern, ad-free) BSD license is very close to the public domain. A piece of public-domain software allows its immediate user all the same freedoms a piece of GPLed software does. The difference is that by placing a work in the public domain, an author gives up all the power that copyright law affords him or her. In contrast, the author who places his work under the GPL gives up most of that power, but makes use of some of it to protect the future freedoms of users of the code base.

Re:For the umpteenth time: GPL != EULA

[mpe]

Others have said it better - but it bears repeating, because so many people seem to miss this point: The GPL has the opposite function to a typical EULA: it gives additional rights, rather than purporting to take rights away.

Also the GPL is not an EULA. It's a licence for the terms and conditions pertaining to the distribution of copyright material.

Re:For the umpteenth time: GPL != EULA

[mpe]

Is the GPL better than normal copyright? Sure, in the sense that it gives you the right to modify and distribute the software.

The GPL is "normal copyright". Normal copyright allows the copyright holder to licence a third party to carry out distribution and publication. Simply that the consideration for the copyright holder allowing distribution is of a form different from that which you'd typically find in commercial publication deal.

Re:For the umpteenth time: GPL != EULA

[mpe]

The point of the GPL is to grant particular freedoms to all software users, yes: freedoms to read, learn from, and improve the software they use.

Also the freedom not to be tied to any specific supplier or maintainer.

Re:For the umpteenth time: GPL != EULA

[Shiny Metal S.]

I agree with everything you said, however we're talking about EULAs, i.e. the end user license agreements, and few things need clarification. The most important thing here, is that the end user does not even have to accept the GNU GPL to use the software.

GNU General Public License, Section 3, Paragraph 0:

0. (...) Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program). Whether that is true depends on what the Program does.

GNU General Public License, Section 3, Paragraph 5:

5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.

The end user license agreements restrict the rights of the end user of the software, "if you click here/run the software, you agree with the license..." etc. You can however use software under the GNU GPL, when you haven't read or don't agree with the GPL, as the end user. You don't have to even read the license, unless you want to redistrubute the software, but then you're no longer an end user.

So, my point is, that in the discussion about end user license agreements -- when we start talking about GPL restrictions or protected rights, and what does it mean to the user -- it should be stated at the beginning, that the GNU General Public License means exactly nothing to the end user.

Re:Microsoft EULAs

[os2fan]

The EULA restriction was in fact illegal. It is against some act that says that you can not dictate a supplier for another product in the process. That's why it was withdrawn.

The event occured around the early 1990's (late 80's MS DOS programs feature it. QHelp actually has an entry in its help system saying it has detected a non-ms opsys, and your licence may be void.

Actually you can

[DABANSHEE]

No end user in NSW (AFAIK) has been prosecuted for reselling old software they didn't need, because when you resell it you just sell the license with it (ie keep the original retail shrinkwrap box or OEM CD box with it)

Possess != own

[yerricde]

If you possess, do you not also own?

If you rent, you possess, but you do not own.

"Your comment has too few characters per line (currently 7.6)."

well unless......

[DABANSHEE]

....the software vender demands that you sign license agreement at the point of sale, agreeing not to sell on, its just as sale, which means you can sell it on yourself when you know longer need it.

Re:GPL?

[TheFrood]

So... if EULAs are un-enforceable, then...

A) I can use one Windows CD(-Key) on multiple computers

No, the judgement doesn't reach that far. You're allowed to sell a copy of Windows that you don't want, but you're not allowed to install the same copy (with same CD-key) on multiple machines. (Unless you have a license from Microsoft that says you can.)


B) I can incorporate GPL into my for-sale products


Again, no; this decision doesn't reach that far. The author(s) of the code still hold copyright on it. The GPL is a license that actually gives you certain abilities (reproduction, modification, etc) in exchange for you obeying certain rules (e.g. placing derivative works under the GPL). If you choose to reject the GPL, you can do that, but then the work in question is still covered by the author's copyright, and you don't have the right to re-use the code (because you refused to accept the license).

TheFrood

Slashdot Story Selection Really Sucks

[bwt]

As I posted when Slashdot ran this story on 28-Nov-2001 (which was four weeks late, as the opinion was available 1-Nov-2001 it happened)...

From my submissions page:

Here are your recent submissions to Slashdot, and their status within the system:

* 2001-11-01 22:36:46 Federal Court rules Software Sold, not merely Licenced (yro,news) (rejected)

WTF. News should be, well, new. My rejected submission was made the day after the opinion was published. I'm glad this very important decision is getting the attention it deserves, but I have to wonder how Slashdot could justify rejecting it when it was timely, then running it twice when it wasn't.

Re:Slashdot Story Selection Really Sucks

[alexjohns]

The Slashdot editors are human. They make mistakes. In addition to which, it's possible for something to be unimportant at one time and very important at a later time. For instance, I believe the world's reaction to Tim Berners-Lee creating the first html document was a big yawn. Look at everyone now.

As someone who's had submissions (that I thought were timely and relevant) rejected, I feel for you. I doubt it's a conspiracy.

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

[anthony_dipierro]

The GPL does not govern use, only distribution of copies.

The GPL attempts to restrict first sale rights, by requiring that I distribute source whenever I distribute binaries.

Except...

[_avs_007]

If the license isn't presented to you at the time of purchase, then the license shouldn't be valid. A california judge validated this in the adobe case.

If a license isn't presented BEFORE purchase, then the sales doctrine applies, and you bought and own what you paid for. No matter what the license aggreement in the box says. You can't turn around and make a sales into a lease aggreement. That's what the judge says...

Anyways...

With a book, when you buy it, you are free to read it wherever, whenever you want. You can rip the pages out of it, and make origami cranes. You can let a friend borrow your book. You can sell your book.

If I buy a DVD, the MPAA would sue me if I tried to watch it wherever, whenever, on whatever I wanted.

With software, the software company would try to sue me if I let a friend borrow it. They would also try to sue me, if I tried to disassemble the software and see how it works. Also, the license aggreement was presented AFTER you bought it. Sure it says if you don't agree to it, to return it, but who actually accepts returns on opened software? And also, when I installed JBuilder, it said it couldn't find the license file, so and empty dialog box appeared, and asked if I agreed to the terms ;)

In a different scenario, whats to stop somebody from copying it to there computer, and cracking the program to say there is no license agreement. Since you never "agreed" to any of the terms, you are not "violating" licensing terms by cracking it, and changing the wording... etc etc...

Lets use other examples. How do you own the CD-ROM but not its contents? If somebody mails you something, its yours and you own it, whether or not they mailed it by mistake... If you buy a car, and find a million dollars in the trunk, its yours, and you are not obligated to return it. If you buy a house, and find a buried treasure chest in your yard, its yours, and you are not obligated to return it to the previous owners....

Re:Except...

[arkanes]

I've been removing the license agreements from things before I install them for some time now. As far as I can tell, and, of course, IANAL, this should be perfectly valid. Assuming of course that click-through is legal at all, then I should only be bound to what _I_ click. I kinda want someone to sue me so I can force the issue on court.

Re:Except...

[walt-sjc]

Great points. Comparing a DVD to a book could be carried a little farther. Consider the restrictions in Region coding. That's like taking a book from the US to Japan, and then being unable to read the book when you're in Japan. Bogus.

However, the issue of cracking programs (or copyright protection methods, ie. Encryption no matter how weak) is also covered under the DMCA, not just the license agreement. So while the "license" may not be enforcable, the laws still are (of course we still haven't had a good challenge to the DMCA yet...)

The biggest thing that bugs me about bundled software and it's license agreements (mainly speaking about Windows being bundled with computers here) is that I don't have the option of buying a Toshiba Laptop (for example) without paying for something I won't use (I use Linux) and not having the right to resell (or give) that unused license to someone else who may want it (someone who wants to upgrade, a school, business, etc.) Of course, some may claim that I would be an evil person if I encouraged the use of Microsoft software, but hey. To each his own.

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

[Arker]

Now, the real question is: can a COPYING file in a tar file count as a license, when the user doesn't need to sign a contract or indicate their affirmative agreement to the license terms in any way? This might get touched on by a revision of EULA practices, and the GPL might well be ruled to be a legally deficient mechanism. That would require some judge to decide that sharing of software must be either public domain or on some sort of contract basis, however, which seems unlikely to occur.

No, their is an affirmative action to indicate agreement with the license - copying and redistribution. You don't need a license to prohibit that - it is *automatically* forbidden to copy and redistribute a copyrighted work without explicit permission from the copyright owner. So if you copy a GPLd work like that, there are only two possibilities - either you have accepted the license, or you are infringing on the copyright.

Re:Still unclear.

[Arker]

I've bought at least 3 PCs that came with Microsoft Windows ME - an OS that I never ever used. Is this considered "installed" software?

Yes.

Although I never used it (Linux boxes all the way!) , it sure did come installed on the PC I purchased. And I sure didn't buy the Microsoft software on a CD... It was just preloaded on there.

Although this is fairly common, it's quite illegal. If they are selling the software with the computer, they need to include at the very least an authentic license agreement with the CD and number on it.

I have found that places that do this will quickly cough up a licensed copy of the software for you, just wait till you open the box, then call them back and tell them they must have made a mistake, you didn't get the CD. Once in awhile you have to let them know that you know how much trouble they can get in for "piracy" but they'll cough it right up then, if not before.

I have no use for ME either, but if I'm getting charged for the damn thing I sure as hell want to recieve it. Go to osauctions.com afterwards and make some of your money back, and help out someone that will actually use it at the same time.

Re:Microsoft EULAs

[fishbowl]

>if you don't like their license, don't buy the
>product.

One of the most important things about rights
is that, even if you don't know you have them,
you still have them, except in the cases where
you do something yourself to have them taken away
(or when they're taken away by the force of law).

You can't agree to an illegal contract.

An illegal or invalid clause in a contract does
not invalidate the contract, only that clause.

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

[anthony_dipierro]

Unlike typical EULAs, the GPL only grants rights, it does not take any away.

Just like most EULAs, the GPL grants rights provided that you give up others.

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

[Frater 219]

The GPL attempts to restrict first sale rights, by requiring that I distribute source whenever I distribute binaries.

Not so fast. The GPL is a limited grant of rights under copyright; it doesn't "restrict" or "require" anything. All it does is grant you limited rights to do things you couldn't legally do otherwise under copyright law. Thus, its provisions can only apply to activities that are themselves restricted by copyright law. Section 0 (zero) of the GPL makes this clear: "Activities other than copying, distribution and modification are not covered by this License; they are outside its scope." If someone sells you a CD-ROM containing GPLed software and you sell that CD-ROM to someone else, you're not doing anything that copyright touches. Put another way, you're not doing anything over which the author has power.

There is one extremely unusual case in which you might be on to something, and I suspect it is unintentional in the language of the GPL. Suppose you purchase a boxed copy of Red Hat Linux. It contains binaries and sources, but on separate CD-ROMs. You retain the source CD-ROMs and sell the rest of the box to someone else. It seems to me (IANAL) that you're not doing anything copyright can touch: you're not copying, or making a derivative work, or the like. The buyer does (for the time being) end up without sources, and this is something the spirit of the GPL intends to avoid. However, copyright law has no teeth to prevent this, and the GPL never has more teeth that copyright law itself.

It's a pathological case. Those happen.

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

[Frater 219]

Just like most EULAs, the GPL grants rights provided that you give up others.

Nonsense. In the absence of a license, you have no right to copy and distribute software someone else wrote. Under the GPL, you have limited right to do so. Of course, if the author has placed the software in the public domain, you have unlimited right to copy and distribute it. However, the presence of a less limited alternative does not mean that the GPL involves "giving up" anything.

Here is an analogy of sorts:

Let us suppose that I have two apple trees on my property, one to the east and one to the west. Lacking my permission, you lack any right to take apples from either tree. If you do so, you are committing a crime: theft. Now, let us say that I permit you to take apples from the eastern tree, but not the western one. You now have limited rights with regards to my trees. If you take from the eastern tree, you are free and legal; but if you take from the western tree, you are committing the same crime as before.

When I granted you permission to take apples from the eastern tree, I was not requiring you to "give up" anything. I certainly did not ask you to give up a right to take apples from the western tree -- since you never had that right in the first place. True, I gave you a limited right, rather than an unlimited one which it was within my power to give -- but it is a vicious lie to say I took anything away from you. I have done nothing but give, and you accuse me of taking away from you something you did not have in the first place!

The same applies to GPLed software. In the absence of a license, you have no right to copy a copyrighted work. To say that the limited grant of rights under the GPL deprives you of anything, or requires you to "give up" other rights, is a vicious lie.

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

[jonabbey]

So if you copy a GPLd work like that, there are only two possibilities - either you have accepted the license, or you are infringing on the copyright.

Well, that may mean that everyone copying GPL'ed works are infringing copyright, then. Or, a judge might rule that since RMS et al released their code into the wild, that the code is effectively public domain, because the effectively public domain release doesn't grant the right to restrict people's behavior without negotiating/signing specific license documents with individuals copying GPL'ed works.

I don't believe that this is the case, I'm just parroting what I've read elsewhere as being a concern. It's not unknown in the legal world for terms put on a contract or other document to be considered unenforceable due to other provisions of law. If parts of the GPL were ruled unenforceable, there could be a problem.

IANAL and I have six years of my life licensed under the GPL, FWIW.

Re:Microsoft EULAs

[glwtta]

No, it's my product. I paid for the CD. I own the CD

Yeah, just keep telling yourself that.

Windows XP and EULA

[Korpo]

This raises some special questions about: - preinstalled OS - preinstalled Windows XP - prebuilt PCs If you got a computer preinstalled (almost likely with Windows) with an OS, that you didn't install yourself and didn't use (you booted right off a CD and installed another OS), do you still have the right to resell the OS "medium"?

What's still more complicated, is, that, from what I know, Windows XP comes preinstalled on prebuilt PCs WITHOUT a CD.. is it then no sale? (Since you didn't get a CD "to walk away with").

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

[Arker]

Or, a judge might rule that since RMS et al released their code into the wild, that the code is effectively public domain, because the effectively public domain release doesn't grant the right to restrict people's behavior without negotiating/signing specific license documents with individuals copying GPL'ed works.

One problem here, he hasn't "released his code into... public domain" anymore than, say, Steven King has released his novels into the public domain. Under the law the situation is the same - copyright applies to computer code the same way it applies to fiction prose. Publication, whether in a book or on a computer disk or over the internet, does not in any way prejudice that copyright. Simply letting people read your code (or your prose) does not in any way invalidate your copyright. You are correct that you cannot restrict people's behaviour with a contract which has not been negotiated/signed, however what you are missing here is that the GPL in no way imposes any restrictions to negotiate over. The things that the GPL prohibits are a small subset of the things that copyright law already prohibits. In other words, if you release your code with no license whatsoever those who receive it have more, not less, restrictions on what they can do with it than they do if they accept the GPL, and there is nothing which you can legally do with code released with no license whatsoever that you cannot do with software under the GPL.

I don't believe that this is the case, I'm just parroting what I've read elsewhere as being a concern.

Which just highlights the dangers of taking slashdot trolls seriously. :)

It's not unknown in the legal world for terms put on a contract or other document to be considered unenforceable due to other provisions of law.

Perfectly true. But the consequences would be nothing like what you are imagining. You must keep in mind that computer code, just like novels, is copyrighted by default and that the GPL does not add any restrictions over that default copyright status - it simply offers a license to do things that would otherwise be illegal (copying, modifying, redistributing.) Most software licenses attempt to restrict rights that copyright law allows. The GPL does not. This is a critical distinction.

Re:DUH. I see a change coming....

[Technician]

There will be two kinds of software. The buy a copy and the subscribe to a copy. One can be installed and used. The other will only have a DL subscription form to download and activate the it. It will come free in the mail. It will come free pre-loaded on computers with a 30 day free trial... Sound familiar? 30 day 1000 hours free ring a bell? Knock your self out and sell the disks on E-Bay. MS and maybe Adobe know how to sidestep this one.

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

[anthony_dipierro]

In the absence of a license, you have no right to copy a copyrighted work.

First of all, that's simply not true. In the absence of a license, you have limited rights to copy a copyrighted work. But I never said anything about copying, anyway.

To say that the limited grant of rights under the GPL deprives you of anything, or requires you to "give up" other rights, is a vicious lie.

Fact: When I buy a Red Hat CD from Red Hat Software, I have the right to sell that CD to someone else without giving them source code. Fact: Red Hat does not have the right to sell that CD to someone else without giving them source code. Why? Because Red Hat gave up the right to first sale when they agreed to the GPL. Red Hat was deprived of it's right to distribute CDs without distributing source.

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

[Frater 219]

Because Red Hat gave up the right to first sale when they agreed to the GPL. Red Hat was deprived of it's right to distribute CDs without distributing source.

Nope. Remember that Red Hat is distributing other people's code, not their own. In the absence of the GPL, Red Hat has no right at all to distribute (for example) Linus's code -- with or without source. If there were no GPL (or comparable license), then in printing and selling its CD-ROMs Red Hat would be violating Linus's copyright. With the GPL in place, Linus has granted unto Red Hat a limited right to distribute Linus's code: a right to distribute it with source but not without. If Linus placed his code in the public domain, or sold the copyright to Red Hat for that matter, Red Hat would have an unlimited right to distribute it -- but he hasn't done that.

You don't have to "agree to the GPL" to be bound by its provisions when you copy GPLed software, because all the "restrictions" of the GPL are actually just the plain old ordinary restrictions of copyright law, by which you were already bound. The GPL isn't a "license agreement" -- a contract -- but rather a "license" -- a unilateral grant of limited rights. It says "You may do these particular things with my code (distributing with source) which otherwise would be illegal -- not anything you want, but some particular things. Other things (distributing without source) remain illegal as they were already."

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

[anthony_dipierro]

It seems to me (IANAL) that you're not doing anything copyright can touch: you're not copying, or making a derivative work, or the like.

Exactly. That's why the GPL is an EULA just like any other. If you agree to the GPL, you give up your right to first sale. But as long as you're not doing anything other than copying the software as a necessary step in using the software, you don't have to agree to the EULA in the first place.

The only difference between Microsft and GNU in this respect is that GNU doesn't try to make you think you're forced to agree to the EULA. They explicitly tell you you don't have to.

The buyer does (for the time being) end up without sources, and this is something the spirit of the GPL intends to avoid.

And that's the problem. Because the GPL tries to restrict something which copyright law does not (distribution of binaries without source code), it can never achieve its goal without becoming an EULA.

I have the right to distribute Red Hat binaries without distributing the source. Red Hat does not have this right. I don't see any way to explain that other than by saying that Red Hat gave up that right when they agreed to the GPL.

Re:Slightly offtopic...

[Technician]

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.
I got burnt by a for hire photographer on just that subject. Believing the consumer is always right, I have since written all my own contracts for photographers labor... The key is labor. Most photographers refuse as they see it as an attack on their cash cow of reprints. To get a photographer, I send a copy of the labor agreement asking for bids for the labor. All proofs and negatives are my property, not the other way around. It's worth the effort to hire a photographer for his labor and be able to get the extra prints that are always needed at a wedding. You can hire him for the reprints if you like his work and prices. You can also have the negatives scanned and put on the web which traditional photographers copyright prohibits. Make sure you own the copyright of your important events.

Walt Disney learned that the hard way. His first mouse was owned by the studio he used to work for. His name was Mortimer Mouse. Walt Disney did not have permission to use his creation. He created another mouse very much diffrent from Mortimer. He refused to give up ownership of Mickey to any studio. He saw loss of ownership of his creation never happened to him again.

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

[anthony_dipierro]

In the absence of the GPL, Red Hat has no right at all to distribute (for example) Linus's code

First answer this. Do you agree or disagree that I have the right to distribute Red Hat CDs.

Copyright law makes it quite clear that I do have that right, and distributing Red Hat CDs is distributing Linus's binaries.

Distributing Red Hat CDs without distributing source code is a right that I have, that Red Hat does not have. Do you agree with that?

Now, assuming you do agree to that, explain to me why Red Hat does not have that right. I am asserting that it is because they gave that right up when they agreed to the GPL.

You don't have to "agree to the GPL" to be bound by its provisions when you copy GPLed software, because all the "restrictions" of the GPL are actually just the plain old ordinary restrictions of copyright law, by which you were already bound.

According to copyright law:

Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

Red Hat has lawfully made a Red Hat CD. They are the owner of a particular copy lawfully made under the title. Are they entitled to sell that copy without distributing source?

Re:Microsoft EULAs

[praedor]

Oh give me (and us) a BREAK. M$ didn't do any of this due to bug fears, they claim no liability for problems their crap causes anyway. The did it ONLY as an ILLEGAL means of destroying competition. This is the very sort of behavior that has gotten them CONVICTED GUILTY as an illegal monopoly power. Quit apologizing and ACCEPT the fact that the courts, the ONLY arbitor of legal and illegal, has nailed M$ multiple times for this very same sort of illegal behavior.

You merely spout the M$ press release bullcrap here. The courts are correct, not M$.

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

[Frater 219]

Anthony, it sounds to me like you're confusing selling a copy you've bought (which is not the kind of "distribution" controlled by copyright law) with making new copies and selling them (which is).

First answer this. Do you agree or disagree that I have the right to distribute Red Hat CDs.

If you buy (or otherwise legally obtain) a Red Hat distribution on CD, you have the right to sell that Red Hat distribution on CD, because it is your property. That is, you can go to the store, buy a CD set, visit me, and sell me the CDs you bought. Neither Red Hat nor Linus have any power to stop you from doing this.

You also have the right to buy a Red Hat CD set, split it up into source CDs and binary CDs, and sell me only the binaries, keeping the sources -- without copying anything.

In addition, because the entirety of Red Hat Linux is licensed under terms that allow you to do so, you have the right to make a copy of the entire distribution (sources included) and sell the copy, retaining the original and the right to use it. This is a right granted to you by the authors of the software contained in Red Hat Linux -- under the GPL, BSDL, and other licenses.

However, you do not have, and never have had, the right to make a copy of only the binaries and sell the copy without providing sources. The programs contained in Red Hat Linux are copyrighted works, and their authors have not given you the permission to copy and distribute their works without sources.

Distributing Red Hat CDs without distributing source code is a right that I have, that Red Hat does not have. Do you agree with that?

You are using the word "distributing" to mean two things: "publishing" on the one hand, and "reselling" on the other. These two cases are completely different under copyright. When Red Hat presses CDs and sells them, they are making copies of Linus's code. When you buy Red Hat CDs and then resell them, you are not making copies; you are merely selling copies Red Hat has made.

Again, the example of books makes it obvious. If I buy a copy of Programming Perl and sell it, I am not making copies, and O'Reilly has no authority to stop me. If I buy a copy, scan it into my computer, and email PDFs of it to all my friends, I am making copies, and to do so legally I need permission from O'Reilly.

Now, assuming you do agree to that, explain to me why Red Hat does not have that right. I am asserting that it is because they gave that right up when they agreed to the GPL.

Red Hat never had the right to copy and distribute Linux without sources. Neither did you. So neither of you ever had the opportunity to "give up" that right. However, when you resell Red Hat binary CD-ROMs you have bought, you aren't making copies.

And it's really rather simple when you stop confusing the issue: Are you making copies? If not, copyright law has no hold over you. If so, it does, and you need the author's permission. GPL gives you permission to make some sorts of copies (source-included) but not others (binary-only).

*cough* Bullsh!t

[JohnDenver]

Without an EULA, the user would be able to do as he pleases with the software, including making copies to his co-workers to his heart's content.

The EULA MAY futher protect copyright infringment (PROTECT BY COPYRIGHT LAW, NOT EULA's) by restricting certain types of uses, but that's all it does.

If you want to license software to me and restrict my use, have me sign a contract BEFORE I purchase your software CD. That's what every other industry has to resort to.

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

[arkanes]

You're wrong, you have no right to distribute Red Hat binaries at all. You can sell your copy of them (without retaining any copies on your own!) but that's all. This is all addressed in detail in the above thread.

I don't know how to make it any clearer. In the absence of the GPL, you have no right to distribute COPIES at all. Nobody does. You may resell what you currently have (that's first sale) but you may not copy it and distribute those copies. The GPL grants you a limited right to distribute and modify copyrighted work - a right which you would otherwise not have. Agreeing to the GPL does nothing to your first sale rights. First sale rights do not cover copying.

In the specific instance of you selling the binary CD but not the source CD, then yes, that's a violation of the SPIRIT of the GPL, but not the law. Do do this legally, you would have to buy a copy of the binaries for every one you sold. Since, of course, you can download the binaries for free, you have a potential (very bad) buisness model based on having other people pay you to download stuff for them. Go you. Redhat does not have this right because they distribute copies.

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

[anthony_dipierro]

EULAs can not take away rights you already had under copyright law unless you agree to them.

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

[anthony_dipierro]

Anthony, it sounds to me like you're confusing selling a copy you've bought (which is not the kind of "distribution" controlled by copyright law) with making new copies and selling them (which is).

Selling a copy you've bought is "distribution" which is an exclusive right given to copyright holders under Section 106(3).

You are using the word "distributing" to mean two things: "publishing" on the one hand, and "reselling" on the other.

I am using the word "distribute" to mean: "to sell, rent, lease, lend, or otherwise transfer ownership".

When Red Hat presses CDs and sells them, they are making copies of Linus's code.

When Red Hat presses CDs, they are making copies of Linus's code. When Red Hat sells those copies, they are distributing copies of Linus's code.

When you buy Red Hat CDs and then resell them, you are not making copies; you are merely selling copies Red Hat has made.

When you resell Red Hat CDs, you are distributing copies of Linus's code.

Again, the example of books makes it obvious. If I buy a copy of Programming Perl and sell it, I am not making copies, and O'Reilly has no authority to stop me. If I buy a copy, scan it into my computer, and email PDFs of it to all my friends, I am making copies, and to do so legally I need permission from O'Reilly.

Sure, but the GPL gives permission to make those copies, but only if you agree to the GPL's restrictions on distribution.

Red Hat never had the right to copy and distribute Linux without sources.

Red Hat had the right to distribute Linux without sources, not to copy Linux. Once they copied it, they gave up their right to distribute Linux without sources (or a written offer).

Are you making copies? If not, copyright law has no hold over you.

Copyright law consists of more than just protections against copying. For example, Section 106(3) gives the author of Linux the exclusive right to rent Linux CDs.

GPL gives you permission to make some sorts of copies (source-included) but not others (binary-only).

Absolutely not true. I can make a binary only copy, and as long as I don't distribute it, I have not broken the law.

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

[anthony_dipierro]

If you're sold a legitimate copy of a copyrighted work, you can resell that copy. That's all you have the right to resell under first sale.

That's not what the law says. The law says if you own a legally obtained copy of a copyrighted work, you can sell that copy. If you legally download a copy, you can sell that copy. If you legally buy a copy, you can sell that copy. If you legally make a copy on your photocopying machine, you can sell that copy. If you legally burn a CD-R, you can sell that copy.

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

[arkanes]

Well, with the caveat that IANAL - I think this would work. However, under the GPL, the original ditributor has to make source available. This is all clearly against the spirit of the GPL, but (IANAL) seems that it meets existing licensing terms and couldn't be "fixed" without, as anthony has said, making the GPL more restrictive than normal copyright.

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

[anthony_dipierro]

That's not what the law says either, bucko.

I said the law says "if you own a legally obtained copy of a copyrighted work, you can sell that copy". The law reads (removing ors) "the owner of a particular copy...lawfully made under this title...is entitled, without the authority of the copyright owner, to sell...that copy...." Please, explain to me the difference. Actually, I'll modify my statement to the following: "if you own a legally made copy of a copyrighted work, you can sell that copy.

You can legally sell the exact bits you downloaded, or possibly the hard drive it's stored on. Anything else, and you're distributing a copy.

Agreed, I never meant that you could sell copies of your download (absent a license to copy), because they would not be legally made copies (because you have no right to copy them in the first place).

Me: If you legally make a copy on your photocopying machine, you can sell that copy.

You: Wrong. That's distribution of a copy again, and it's verboten unless permitted. Distributing copies is still infringement, and first sale is no defense.

If you legally made the copy (for instance, if you had a license to make copies), you can sell it. It's right there in black and white in the law. "the owner of a particular copy," that's you. "lawfully made under this title," if you had a license to make the copy. "is entitled, without the authority of the copyright owner, to sell...that copy...."

If you have made a copy first sale does not apply to you.

Do you care to back that up with either law or a court decision?