Microsoft Software for Sale, Slightly Used

Alsee writes "The Register reports that recent UK business Discount-Licensing.com has been having booming growth reselling pre-owned Microsoft software licenses 20-50% below retail, after spotting the opportunity in Microsoft's licensing terms and Britain's insolvency laws for insolvent and downsizing businesses. Sorry, no discount personal OS resales, corporate bulk resales only."

Comments

What a crazy idea!

[IntelliAdmin]

What a crazy idea - the thought that you actually can do what you want with something you purchased. I wonder how long it is before the BSA finds some way of shutting these people down.

Re:What a crazy idea!

[hey!]

What a crazy idea - the thought that you actually can do what you want with something you purchased.

Well, it would be, if Microsoft sold sofware.

Which they don't.

Whether you think i's a good idea for society or not, they sell licenses. A license by its very nature is more ambiguous than ownership, because it is, at its heart, an agreed upon, ungoing relationship between the licensee and licensor.

So, what is going on here is something a bit extraordinary. It's saying that licensees have in certain cirumstances the ability to transfer their relationship with the licensor to a third party, without the licensor's consent.

Re:What a crazy idea!

[ehrichweiss]

There's really absolutely nothing extraordinary about this at all. At least here in the States, "shrinkwrap licensing" doesn't hold water in the higher courts and the only real way to keep someone from selling their software is by signed agreement.

SGI has for years sold software under a license where you physically sign an agreement to purchase, and the license forbids resale of the software without express permission of Silicon Graphics. The thing is, they have the attitude toward their media that most of us wish that the record/movie companies had toward CD/DVD's..if it gets damaged, lost, stolen, etc. then they replace it for free...usually overnight Fedex. But that was back in the day, I'm unsure if they still do this now.

Anyway, I'm glad to see someone do this with the corporate licenses; it's about damn time.

Re:What a crazy idea!

[Sparr0]

Let me direct you to one of my favorite Sale vs License rulings, Adobe v Softman. Relevant excerpts follow:

A number of courts have held that the sale of software is the sale of a good within the meaning of Uniform Commercial Code. Advent Sys. Ltd. v. Unisys Corp., 925 F.2d 670, 676 (3d Cir. 1991); Step-Saver, 929 F.2d at 99-100; Downriver Internists v. Harris Corp., 929 F.2d 1147, 1150 (6th Cir. 1991). It is well-settled that in determining whether a transaction is a sale, a lease, or a license, courts look to the economic realities of the exchange. ...

Other courts have reached the same conclusion: software is sold and not licensed. See, e.g., RRX Indus., Inc. v. Lab-Con Inc., 772 F.2d 543, 546 (9th Cir. 1985); Applied Info. Mgmt., Inc, v. Icart, 976 Supp. 149, 155 (E.D.N.Y. 1997) finding that whether a transaction denominated a "license" was in act a sale conveying ownership was a disputed question of fact); Novell, Inc. v. CPU Distrib., Inc., 2000 U.S. Dist. Lexis 9975 (S.D. Tex. 2000). In Novell, a software manufacturer was pursuing a discount retailer for copyright infringement. Like Adobe, CPU argued that it purchased the software from an authorized source, and was entitled to resell it under the first sale doctrine. Novell claimed that it did not sell software but merely licensed it to distribution partners. The court held that these transactions constituted sales and not a license, and therefore that the first sale doctrine applied. 2000 U.S. Dist. Lexis 9975 at *18. ...

The Court finds that the circumstances surrounding the transaction strongly suggests that the transaction is in fact a sale rather than a license. For example, the purchaser commonly obtains a single copy of the software, with documentation, for a single price, which the purchaser pays at the time of the transaction, and which constitutes the entire payment for the "license." The license runs for an indefinite term without provisions for renewal. In light of these indicia, many courts and commentators conclude that a "shrinkwrap license" transaction is a sale of goods rather than a license.12 ...

The reality of the business environment also suggests that Adobe sells its software to distributors. Adobe transfers large amounts of merchandise to distributors. The distributors pay full value for the merchandise and accept the risk that the software may be damaged or lost.13 The distributors also accept the risk that they will be unable to resell the product.14 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 product, and accept the risk that the product may be lost or damaged. This evidence suggests a transfer of title in the good. The transfer of a product for consideration with a transfer of title and risk of loss generally constitutes a sale. VWP of Am., Inc. v. United States, 175 F.3d 1327, 1338-39 (Fed. Cir. 1999). ...

[signed]
DEAN D. PREGERSON
United States District Judge

This is legal in the US too

[Anonymous Coward]

This is legal in the US too. And protected under the "Doctrine of First Sale", much as the software companies would like it didn't exist.

"US copyright case law supports that consumers cannot make copies of computer programs contrary to a license, but may resell what they own."
http://en.wikipedia.org/wiki/First-sale_doctrine

"Software publishers claim the first-sale doctrine does not apply because software is licensed, not sold, under the terms of an End User License Agreement (EULA)."

but if it's licensed then one should be allowed to make backups of the disc or receive a replacement disc if the disc gets lost or damaged. Software companies will argue either way where it suits them.

they can't have the cake and eat it. It's either or

I'm going to mix things and hope you won't notice

[Anonymous Coward]

"Modern societies go out of their way to restrict one's freedom"

Actually, modern has nothing to do with it. And just living with another person will restrict your freedom. Ask any married man. But some of those rules are societal such as you mention:

    "you cannot buy alcohol and give it to minors"

or

    "[you cannot] drive a car around without a license"

Let's be clear about these things. They are *laws* debated and agreed to by *represented officials* and can be changed at any time if society at large decides these rules need to be changed.

Also, it's worth noting these laws don't restrict the sale or ownership of an item, they restrict the use of an item.

Let's compare that with a EULA from MS not to resell that item.

1) It's not against the law to buy or sell software
2) Copyright law has no jurisdiction in this case, because it deals with reproduction, not sale
3) First sale doctrine encourages me to resell what I own
4) Microsoft would rather I didn't and they put it in a EULA.
5) Nobody voted on this restriction. In fact, they didn't even get a say. I bought a PC a few years ago, it came with XP Pro, I assumed I could sell it, but no, it's licensed to the box and I can't resell it. Why? Well... just because. I don't think it would hold up in court, but it's not worth it to try.

So please stop comparing a EULA to underage drinking and societal conventions because they are not at all related. EULAs are a trick that may or not be legal and they are enforced by big money, not society.

Re:Here's how they will "fix" this

[ajs318]

So if the license says you can't transfer it, you can still transfer it?

Yes, because the Law of the Land says you may transfer a licence -- and rights given to you by the Law of the Land cannot be denied to you by entering into a contract. That's what the magic words "Your statutory rights are not affected" mean. It's also the reason why EULAs have a severability clause; that's the bit that says if any provision is found not to be applicable it shall not prejudice any other provision.

Does that mean that if it says you can't install the software multiply that you may indeed install it as many times as you want?

No, because the Law of the Land does not say you may install it as many times as you want. Though, you might argue in court that this constituted Fair Dealing {a deliberately ambiguous term: it is for the courts to decide what does or does not constitute fair dealing}. If you were successful, you would set a precedent.

Does it mean that licenses are completely worthless to the licensor?

Pretty much so, yes.

Are you a lawyer?

No, but I know my rights.