Court Rules For Software Ownership Over Licensing

Err... by QuoteMstr · 2009-10-06 17:41 · Score: 4, Insightful

So the court, by mentioning the dictates of precedent in the first place, is implying that it thinks licensing is the preferred policy? How on earth is that pro-precedent and policy-neutral?

Re:Err... by QuantumG · 2009-10-06 17:48 · Score: 1

the finding does kinda sound like "we can't fix this loophole in this court, but try a higher court!"

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How we know is more important than what we know.
Re:Err... by JoshuaZ · 2009-10-06 17:50 · Score: 4, Interesting

No, the court is saying that it isn't expressing any opinion about what the law should be and is making that point very clear, probably so that no one will mistakenly point to this as a precedent of a court deciding that the law should be this way for software.
Re:Err... by Anonymous Coward · 2009-10-06 18:08 · Score: 4, Informative

So the court, by mentioning the dictates of precedent in the first place, is implying that it thinks licensing is the preferred policy?
The Court was almost certainly responding to arguments put by both parties that were policy based. It was politely pointing out the reason why it just ignored all those arguments from both sides and focused purely on what the precedents say. Because that's the Court's job. In particular to the losing party it amounts to "and if you don't like it, go and bother your mom^WCongress instead".
Would have to read the full decision and/or the filingd by the parties to be sure though.
Re:Err... by Anonymous Coward · 2009-10-06 18:43 · Score: 4, Insightful

I interpret that as the judge answering an argument by the losers.
Most likely Autodesk argued that full ownership of software would hurt it's business. The article says as much, if you read between the lines. Of course, they neglected to mention that a mere license model hurts consumers, but since the court rejected the argument anyway, it's all good.
Re:Err... by RichiH · 2009-10-06 19:09 · Score: 1

Dunno, while re-reading and re-reading the quotes I can not decide if they want to be as neutral as possible or if they would have preferred licensing. While I am not sure, I think they meant the latter.
Re:Err... by mrmeval · 2009-10-06 21:02 · Score: 1

They court is chomping at the precedent bit in it's slobbering mouth to rule AGAINST the owner.
I say we put the horse down.

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Re:Err... by eam · 2009-10-06 23:31 · Score: 5, Insightful

...more like "we can't fix this loophole in court, lobby congress instead!"
Re:Err... by commodore64_love · 2009-10-07 00:36 · Score: 1

It seems everyone is trying to strip-away our property rights.
If you buy a physical object, it's yours to do with it what you wish, including selling the object to the next person, via garage sale or ebay. I can understand why organizations like RIAA want to strip-away our property so they can make themselves richer, but not the judges. Judges should be on the side of the People and protecting our rights.

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"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
Re:Err... by plague3106 · 2009-10-07 01:34 · Score: 1

Ugh... what nonsense. Nobody is trying to strip away your property rights. But the fact remains its whats ON the disc that you care to purchase, NOT the disc itself.
You can't hold software in your hand; you can only hold the media on which its stored.
If you want a blank disc, they are available, and no one is debating your right to own blank discs.
Re:Err... by jedidiah · 2009-10-07 01:58 · Score: 1

It's not nonsense at all. "Property rights" are what makes this whole thing work. We can own
things and our toils will help enable that. If we work harder, we might be able to own more
or better things. Eventually those things might be valuable enough that we don't have to work
at all and our things do all the work for us.
This is one way you get ahead in capitalism.
The promise of this is what keeps the drone, peons and proles with their shoulder to the grindstone.
This same principle is what motivates the Dells, Gates' and Ellison's of this world.
If you undermine property rights of INDIVIDUALS, you are taking a jack hammer to the foundations of the economy.

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A Pirate and a Puritan look the same on a balance sheet.
Re:Err... by cduffy · 2009-10-07 02:05 · Score: 2, Insightful

Why would you not let folks own outright disks containing copyrighted software as well?
Just because I own a disk doesn't mean I own the copyright to the software on the disk, and that copyright prevents me from making copies (or public performances, or several other things explicitly listed by copyright law) without paying the copyright owner for permission to do so. While it does permit restrictions on making of copies, public performance, preparation of derivative works and the like, however, copyright law does not allow the copyright owner to determine whether I can resell an embodiment of their work -- this is why Autodesk has resorted to licensing to do so.
The question, though, is this: Why is there a compelling public-interest need to allow copyright owners to extend their control over embodiments of their works beyond that which copyright law already provides?
Answer that question, and we'll have a better understanding of each others' positions.
Re:Err... by commodore64_love · 2009-10-07 03:25 · Score: 1

>>>You can't hold software in your hand; you can only hold the media on which its stored.
>>>If you want a blank disc, they are available, and no one is debating your right to own blank disc
I can't believe you're serious. (Trolling perhaps?) You didn't say it outright, but it's pretty clear you believe I can not sell my DVD of Final Fantasy 12, MS Word 2003, or Autodesk to another citizen. THAT is a violation of my property rights. If the manufacturers are going to RENT the software then that's what it should be called, not "purchase".
The former can not be resold, but the latter can be, and I will sell my *purchases* whenever and however I feel like it.

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"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
Re:Err... by commodore64_love · 2009-10-07 03:33 · Score: 2, Interesting

>>>Just because I own a disk doesn't mean I own the copyright to the software on the disk
That's one hundred percent true. Except when I sell my DVD of Word 2003 in my annual garage cleanup sale, I am NOT making a copy, therefore the copyprivilege has no relevance to this discussion.
>>>this is why Autodesk has resorted to licensing to do so.
Then they are guilty of FALSE ADVERTISING. They called it a "purchase" when in fact it was just a rental. Perhaps it's time for us customers to file a counter-lawsuit, as happened with Comcast in Florida. False advertising is illegal and it's time we held these companies accountable.

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"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
Re:Err... by Anonymous Coward · 2009-10-07 05:05 · Score: 1, Interesting

"So the court, by mentioning the dictates of precedent in the first place, ..."
_Precedent_??? Damn! There are a few thousand years of custom and culture in the retail marketplace. You buy it, you take it home, you own it. Everyone gets it, from rocket-scientist to those that have a hard time with independent living. You would have to take an expedition to the ends of the Earth to find some culture that does not understand that. Why is the court seriously pondering that a loophole will trump centuries of precedent?
Re:Err... by plague3106 · 2009-10-07 05:39 · Score: 1

It is nonsense, because software is not property any more than the concept of five is property. Acknowledging this does nothing to the fact that you can own property though; just becaue I can't own software doesn't mean I can own a bicycle.
As far as property rights being the foundation of the economy, I hate to break this to you but the service sector is by far the largest part of the economy now, to the tune of 80% of it.
Re:Err... by plague3106 · 2009-10-07 05:41 · Score: 1

I never said you couldn't own the disc. But the OP was suggesting that because he can't own the CONTENT on that disc, that his property rights are being somehow erroded.
I never said anything about autodesk or their claim, I was only responding to the OP that seems to believe you can own an idea and his assertion that if he can't, somehow his property rights are being erroded.
Re:Err... by plague3106 · 2009-10-07 05:44 · Score: 1

You have some sort of issue, which I can't figure out. What you want is exactly what the court found, yet you somehow claim that the findings are erroding your property rights.
They aren't, because property rights don't apply, because you're not dealing in property at all. You're dealing with content. And yes, you should be able to sell that content provided you keep no copy for yourself. But software sales / licensings are not a matter of property rights, because SOFTWARE IS NOT PROPERTY. Purchasing something doesn't make it property. You can purchase things OTHER than property, which is my point.
Re:Err... by joeyblades · 2009-10-07 07:19 · Score: 1

a mere license model hurts consumers...

How does a license model hurt consumers? In this case, the only consumer that was protected was the guy who was selling copies of Autodesk on eBay. Since none of the consumers who bought these copies could authorize them, they were hurt by the seller violating the terms of the license agreement, and by the court for not protecting their consumer rights.
Most Electronic Design Automation software is licensed not sold. No one believes that they **BUY** a copy of Synopsys Design Compiler. If someone were selling copies of Design Compiler on eBay you can bet that Synopsys would take them to court. I don't think this case is fully settled. If it is, it undermines the whole business model of thousands of software companies... and if that happens, then consumers will really pay!
DISCLAIMER: I do not work for Autodesk or Synopsys, or any software company for that matter.
Re:Err... by icannotthinkofaname · 2009-10-07 10:38 · Score: 1

If you undermine property rights of INDIVIDUALS, you are taking a jack hammer to the foundations of the economy.
I thought someone already took a jackhammer to the foundation of the economy somehow. Why else would it have collapsed?

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Re:Err... by Anonymous Coward · 2009-10-07 10:43 · Score: 0

and it's time we held these companies accountable.
Ha ha! Nobody does that! The American Way is to sit back and take it up the ass from whatever corporation wants your wallet while you sit back and watch Fox News streaming from YouTube in Internet Explorer on your Microsoft Windows computer while you stuff your face for the nth time today and keep contributing to the American Obesity Problem. But of course, you'll be looking productive as soon as your boss walks by, because he pays you.
Re:Err... by Anonymous Coward · 2009-10-07 11:46 · Score: 1, Insightful

So? No reason a license can't be transferred like any other contractual obligation.
Re:Err... by b4dc0d3r · 2009-10-07 13:27 · Score: 1

I read it as "Change the EULA and try again, AutoDesk."
"The Autodesk License is a hodgepodge of terms that, standing alone, support both a transfer of ownership and a mere license," said the ruling. "Autodesk expressly retains title to the 'Software and accompanying materials,' but it has no right to regain possession of the software or the 'accompanying materials'. Licensees pay a single up-front price for the software. Autodesk can require the destruction of the software, but only as consideration in the later purchase of an upgrade."
If the license explicitly allows regaining possession, a court would have to decide whether that is reasonable, and whether First Sale applies. In other words, is the EULA enforceable. Or if you bought directly and signed a contract, is the contract binding. After all, I can't write software which says "Clicking OK means you agree" if the license says "and you have to give me a baby, existing or new" because that's not reasonable. Is it reasonable for someone to sell software and expect to never be able to re-sell it? I believe that's still an open question, otherwise this case would not have gone far.
Re:Err... by commodore64_love · 2009-10-08 02:30 · Score: 1

>>>because he can't own the CONTENT on that disc, that his property rights are being somehow erroded.
If I can't buy a CD or DVD with software, and then resell the Disc to somebody else in the used market, then that's precisely correct - My property rights ARE being eroded. It should be self-evident to anyone with a brain that if I exchange $50 for a Software CD, I ought to be able to change my mind, and convert that CD back to the original 50 dollars by re-selling it to some other person. The idea that I'm stuck with the CD forever is bullshit.

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"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
Re:Err... by commodore64_love · 2009-10-08 02:35 · Score: 1

>>>What you want is exactly what the court found,
Yes *this* court found. Given how the decision was written by the judge, I'm expecting the decision to be over-turned by a higher level, and the right to sell the Autodesk CD on ebay.com to be revoked.
And I WAS annoyed with you because in your original post, you made it sound like I must be stuck with the Autodesk CD forever, and never able to convert it back to its original form (approximately 50 dollars). I am certainly entitled to convert my wealth from dollars-to-Autodesk CD-and-back to dollars. To say otherwise is a violation of my property rights.

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"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
Re:Err... by plague3106 · 2009-10-09 04:21 · Score: 1

Yes *this* court found. Given how the decision was written by the judge, I'm expecting the decision to be over-turned by a higher level, and the right to sell the Autodesk CD on ebay.com to be revoked.
You're getting worked up over something that may or may not happen.
And I WAS annoyed with you because in your original post, you made it sound like I must be stuck with the Autodesk CD forever, and never able to convert it back to its original form (approximately 50 dollars). I am certainly entitled to convert my wealth from dollars-to-Autodesk CD-and-back to dollars. To say otherwise is a violation of my property rights.
You're not converting anything. You're buying a copyrighted work for an amount of money. You can sell that work back, but again, this has nothing to do with property rights, because copyrighted works aren't property. Do you believe you own the massage girl if you buy a massage from her? Because I think you're buying a service, which is not property either.

State matter? by mysidia · 2009-10-06 17:41 · Score: 1

Why congress?

Is it not up to the states to decide what rights are transferred when something is being sold at the store?

Contracts and the purchase/sale of goods are generally distinctly state issues...

Re:State matter? by Kierthos · 2009-10-06 18:01 · Score: 1

Why Congress? Probably due to interstate commerce laws.

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Re:State matter? by meerling · 2009-10-06 18:44 · Score: 5, Interesting

when you start getting down to the actual rights that are transferred with a purchase of goods, if you leave it to the states, you will cause massive damage to interstate commerce. Those boobs can't even come up with consistent sentencing for crimes, there's no way they'll voluntarily adopt a single consistent set of rules over this unless it's done at the federal level.

If any readers still can't imagine what the problem is with that, think about it for a bit. Here's a few hints, imagine if a company in Maine sold software to people in all the states. In Texas they might be forced to provide updates for free for a period of 3 years, while in Ohio updates have a cost $1.00 but they only have to be available for 6 months. Now in Colorado you can resell your software, but in Florida you don't own it - it's all leased for a period of no more than 4 years. Getting messy already, and we've only covered 4 states. (Maine didn't count because I never said anything about their local laws on ownership/sales.)

By the way, if you are buying land in a state other than your own, check what the state laws are where you are buying it. Some states you get the works. Others, you don't get mineral rights. Some, you get water rights, and you might get mineral rights, but not oil rights, that's a seperate thing altogether. (Can you guess which states I'm talking about?)

In California you can buy beachfront property, and you get the beach. In Oregon (same coast, just farther north) you can still buy beachfront property, but the beach always has, and always will, belong to 'the people'. (Lots of Californian developers have gotten massively pissed over that when they tried to put up walls or fences...) The coast belonging to the people of Oregon is essential native traditions that were adopted into laws for Oregon. This is just a small example the differences that already occur, and you don't ship real estate across state lines, imagine how screwed up that would be.
Re:State matter? by tkrotchko · 2009-10-06 21:55 · Score: 1

"you will cause massive damage to interstate commerce"
Autodesk seemed to be doing a good job of that all on their own.

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Re:State matter? by Rogerborg · 2009-10-06 22:09 · Score: 1

The "Congress über alles" Commerce Clause.

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Re:State matter? by Anonymous Coward · 2009-10-06 22:24 · Score: 2, Informative

Copyright is granted under the IP clause of the Constitution, and its regulation given to Congress.
This is the policy interest to which the court referred, i.e. Congress may step in and legislate that although copyright creates a divisible property interest which may be sold in part or whole, to other parties, the sale of a copy of software is, as a matter of law a (license or transfer of property right over that copy)
All the court is saying is that the jurisprudence says that AutoDesk's own license says that the sale of a copy is a property transfer, on that particular copy, but that if Congress wants a different policy, it is free to change the Copyright Act.
Re:State matter? by Anonymous Coward · 2009-10-06 22:33 · Score: 0

This is why there is the Uniform Commercial Code governing personal property transfers. Unfortunately the process of bringing it up to date on issues like software licensing have been rather un uniform, prompting the proposed amendment to be broken off as the Uniform Computer Information Transactions Act. It is only adopted by two states, and seems fairly devoid of consumer protections. It seems like the Court's complete refusal to debate policy is a nice way of achieving a public policy-like opinion (consumer protection wins the day, and this particular software license confers a property right in the individual copy) without purporting to do so.
Re:State matter? by cpt+kangarooski · 2009-10-06 23:32 · Score: 1

Yes, I also thought that was an odd thing to say. While this case is about copyright, and therefore federal courts have exclusive jurisdiction, the contract law and sales law that it should be looking at will all be from the relevant state(s). Certainly, the leading cases on this issue have all been based heavily on the UCC, which is state law.
I suppose Congress could make some policy here, but they haven't yet, which leaves it to the states.

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Re:State matter? by BobMcD · 2009-10-07 02:47 · Score: 1

Which is why the laws usually specify what they cover. There isn't any great need for things to be consistent, particularly in the examples you gave. Why would crimes committed in Alaska need to carry the same penalties as those in Kentucky? And if this doesn't scale for States, then why would it scale for Nations any better? Why don't we need to unify our laws with China, or vice-versa?
I'm sorry if I'm being dismissive, but most anti-State arguments are usually just based in frustration that not everyone agrees with your own point of view.
To me, that's the magical part. It is inherent in the design of the US, and is one of the key things that has made my country rise above the rest from time to time. Our compartmentalization allows us to be extremely diverse.
Even if you disagree with that, you must admit that there needs to be some concept of jurisdiction. From there we just need to debate the scope.
Re:State matter? by ChaosDiscord · 2009-10-07 04:55 · Score: 2, Informative

...if you leave it to the states, you will cause massive damage to interstate commerce.
If only there was some way for states to get together to agree on uniform rules. Oh wait, there is: the Uniform Commercial Code and similar agreements liek the Uniform Trade Secrets Act.
Companies like federal level laws because they tend to include a "Local laws are hereby no longer valid." It lets them focus on lobbying a single group of people who are frequently completely unconnected from the problems at hand. Does a Senator from Texas really know what's best for New York? Does the Representative representing Chicago know what's best for Wyoming?
I'm not prepared to press local autonomy flat to extra grease for the wheels of capitalism.

Those boobs can't even come up with consistent sentencing for crimes....
I'm very thankful we don't have consistent sentencing for crimes across states. People are going to have very different opinions about what things are crimes, and how harshly they should be punished. There are several states whose sentencing I consider grossly immoral. My solution is easy: I don't move there. Presumably people who like the sentencing guidelines and rules in those states think I come from a state with wildly inappropriate guidelines. They're free to stay the hell out of my state; we like it this way.

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Re:State matter? by AdmiralWeirdbeard · 2009-10-07 05:37 · Score: 1

Until ALI manages to work an acceptable take on the Uniform Computer Information Transfer Act, though, i think the court was right to keep to federal copyright precedent. Also, it seems like the reference to 'Congress' was less in terms of the sales transaction, and more in terms of clearly delineating whether a property interest is created in the sale of a copy of software.

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Re:State matter? by cpt+kangarooski · 2009-10-07 08:30 · Score: 1

No, federal copyright law simply does not address whether a particular transaction is a sale of goods, a sale of goods subject to terms put forth after the goods and payment were exchanged, or if it was a contractual matter and not a sale at all. The court cannot look to copyright for the answer; it just isn't there. It is a matter of state law. Given that federal courts apply state law all the time, it shouldn't be a big deal. And it would be wrong to wait for a second attempt at updating the UCC. The court has to deal with the law on the books, not what might someday occur. In any case, it likely wouldn't involve UCITA anyhow; only two states adopted it, several others enacted laws to protect their people from it, and it is generally (rightly) considered a failure and far too generous to business.
Incidentally, aside from that it is self evident that one can sell software in an ordinary sales transaction, and thus convey to the buyer a property interest in the copy of the software, just like selling a book, Congress already decided that such sales can occur when they enacted 17 USC 117, which refers to that sort of thing.

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-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Re:State matter? by Anonymous Coward · 2009-10-07 18:56 · Score: 0

There is NO friggin IP clause in the Constitution. There is a clause concerning Copyright... the right to copy a work or not... not IP. There is NO FRIGGING IP. IP is a marketing, made up thing. A simple label that is used to redirect the discussion away from the real issue by supplying a simple short hand name to a complex concept.
say with me now... THERE IS NO INTELLECTUAL PROPERTY ! Intellectual property is an idea or concept, and the US Supreme court has already affirmed that an idea or concept can NOT be patented or Copyrighted. A *** physical thing *** can have a copyright on it... to progress the arts or human knowledge. ... and GET OFF MY LAWN, dang kids...

So when they say "Own this movie on DVD today!" by tomhudson · 2009-10-06 17:43 · Score: 1

I really own it? Great!

Re:So when they say "Own this movie on DVD today!" by Thanshin · 2009-10-06 18:47 · Score: 1

No, they still mean you can achieve victory by a large margin over the movie, on DVD.
What's still unclear is the game you and the movie are expected to play, but I think it's one that involves paying large amounts of money.
Re:So when they say "Own this movie on DVD today!" by Jedi+Alec · 2009-10-06 22:38 · Score: 1

What's still unclear is the game you and the movie are expected to play, but I think it's one that involves paying large amounts of money.
And the only way to win is not to play. Which reminds me, where's my DVD with the uncut director's version de luxe gold edition of Wargames anyway?

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Sweet! by SheeEttin · 2009-10-06 17:43 · Score: 2, Interesting

Sweet! Now maybe we can affirm that we actually own things we purchase, and companies like Nintendo will stop stuffing up things like homebrew.

Re:Sweet! by Okind · 2009-10-06 17:56 · Score: 5, Insightful

Exactly: the ruling said that selling software second-hand is entirely legal. Of course, the software is still covered by copyright and it's license, so you're really selling the license.
By effectively upholding the first sale doctrine, this judge did the right thing.
Re:Sweet! by binarylarry · 2009-10-06 18:02 · Score: 4, Insightful

Has Nintendo legally gone after anyone for homebrew?
Simply not supporting the use or installation of it nor fixing damage resulting from it isn't the same thing as taking people to court.

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Re:Sweet! by Anonymous Coward · 2009-10-06 18:23 · Score: 0

No just the autodesk license did not specifically deny the owners right to resell.
Re:Sweet! by Anonymous Coward · 2009-10-06 18:36 · Score: 0

What's a license and why do I need one? Isn't "I agree" simply an artistically decorated button to start the program?
Re:Sweet! by Anonymous Coward · 2009-10-06 18:49 · Score: 0

Gazing into the horse's mouth, Nintendo sets out their legal perspective quite thoroughly without mentioning homebrew specifically. http://www.nintendo.com/corp/legal.jsp
But they're definitely all for DCMA type laws, and while they acknowledge the archival exception to illegal copying, they also claim copying devices are only for illegal purposes.
Re:Sweet! by Anonymous Coward · 2009-10-06 18:54 · Score: 2, Interesting

I actually develop games for Nintendo systems professionally. I got my start in the industry through homebrew. It's always been my belief that Nintendo actually LIKES homebrew on their consoles. It serves to train people on how to use their hardware. The problem is that it also usually means copyright infringement. They would take a lot of heat from the 3rd parties and their shareholders if they didn't at least put on a good show of fighting it.
Re:Sweet! by Okind · 2009-10-06 20:02 · Score: 2, Informative

What's a license and why do I need one? Isn't "I agree" simply an artistically decorated button to start the program?
This is not the case: simply saying "yes" is an agreement, with full legal consequences, provided it can be proven in court. With software, proving that you clicked "I agree" is much simpler. After all: without altering the program (which is not allowed without a license), the program won't install before you explicitly agree to the license.
Simply put, a license is an agreement giving you the right to use the software. Note that this actually to any copyrighted material, so it also covers the images, music, movies, etc. in a game. Without a license, you can only use software if you buy it: at least in the Netherlands there is a limited set of things you may do with software you bought without a license. But there is an important exception here as well: general terms of business.
EULA's are generally valid, even though you explicitly agree to them after you buy/download the software. The reason: they are the same for every user, and are thus general terms of business. There are of course a few restrictions: general terms of business must be legibly available before the sale/download. So a shrink-wrap license (which is not available before the sale/download) is not legally binding.
Many jurisdictions prohibit changing the conditions of sale after the sale. This also includes changes to a license, or the general terms of business, unless they state explicitly that they may change (which us extremely common). And even then there are restrictions in consumer law. For example, in the Netherlands, the changes must be made known to the user beforehand (a change on the website is not enough), well in advance (at least a month) and you have the option to decline. In that case, the contract/license is nullified (so you cannot use the software anymore) at no cost whatsoever.
So in short, a EULA is generally always valid. Your jurisdiction may enforce certain constraints though. For example, in the Netherlands I may always make a backup copy, regardless what the license says. Nor is any license term valid if it limits my right to free speech, for example by publishing benchmarks.
If you don't want to be bound to the license, your only recourse is not to use the software.
NOTE: I live in the Netherlands (Europe), and I have no legal training. Depending on my understanding and where you are, I may completely misrepresent your situation.
Re:Sweet! by razvan784 · 2009-10-06 22:03 · Score: 0

I don't know, if I buy a book I can't legally make photocopies of it and distribute them, or make derivative works or whatever; I guess its content is "licensed not sold" to me; its paper would be just like the CD that carries the licensed software. Despite this, I've yet to see any book that includes a license agreement. Why should software be different.
Re:Sweet! by Jedi+Alec · 2009-10-06 22:57 · Score: 1

EULA's are generally valid, even though you explicitly agree to them after you buy/download the software. The reason: they are the same for every user, and are thus general terms of business. There are of course a few restrictions: general terms of business must be legibly available before the sale/download. So a shrink-wrap license (which is not available before the sale/download) is not legally binding.
Not only must they be legibly available, either the product itself or the party selling it to you must actively inform you that there is a general terms of business applicable to the product. So when you go to the shop and pick up a copy of Vista, the click-through EULA you need to accept to install isn't worth anything unless either the box or the sales clerk made its contents available to you before or at the moment of purchase.
Unfortunately this doesn't allow you to just keep using the product while not adhering to the EULA. In a situation like this you simply have the right to cancel the sale and demand a full refund, so we all still get to collectively swallow EA's latest legal shite if we want to play Spore.
Dutch wiki article that links to some of the relevant laws.

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Re:Sweet! by AK+Marc · 2009-10-07 00:09 · Score: 2, Insightful

This is not the case: simply saying "yes" is an agreement, with full legal consequences, provided it can be proven in court. With software, proving that you clicked "I agree" is much simpler. After all: without altering the program (which is not allowed without a license), the program won't install before you explicitly agree to the license.

It's a demand that you either click "I agree" on or you lose value of what you purchased. You are being coerced. The "value" is being held hostage after it has already been paid for.

So in short, a EULA is generally always valid.

But "valid" in what sense? Is it a contract? It seems to meet none of the legal requirements of a contract. I get no consideration. I've already paid for it, I already own it, and I get nothing from the EULA (I gain from clicking the "I agree" button, but the EULA itself grants me nothing). It isn't even executed properly. Who is the agreement with? "Autodesk" can't make an agreement. No real contract is signed with the company name. They are always signed by a human, with explanation of how they represent the corporation. The inability to negotiate a contract (as opposed to the unwillingness, which is always allowed) is another disqualifying factor. So I can't see how a EULA can be a contract when it doesn't follow contract law.

If you don't want to be bound to the license, your only recourse is not to use the software.

So you bought it, you own it, and you can't use it. That's not what I paid for. I bought something that said "use this for CAD" and I want to use if for CAD under reasonable terms. If I find their terms unreasonable after I've bought it, then how do I negotiate with them for terms we both can agree on? If no agreement can be reached (because a EULA has no mechanism for negotiation, and negotiation is one of the requirements of contracts), then it isn't a valid contract. Clicking "install now" isn't a legal decision, but a requirement to make the software work. Clicking "I agree" has nothing to do with whether I (or a reasonable person) actually agrees to everything in there, but is a button that must be pushed to use software already bought and paid for, no different and no more legally binding than "install now."

--
Learn to love Alaska
Re:Sweet! by Rekolitus · 2009-10-07 00:10 · Score: 1

Of course, the software is still covered by copyright and it's license, so you're really selling the license.
False. A second hand sale involves the sale of physical property. There is no exception for software. A "license" can refer to many things; in the context of software it tends to refer to a fictional concept created by the software industry, the implication being that one is required, typically per user, or even per feature. However, a second-hand copy of a piece of software is a lawfully produced copy of a copyrighted work, and so no license is required merely to transfer ownership, nor is a "license" legally required to use a piece of software.
USC 17-117 creates an exemption for copyright with regards to copies of computer programmes technically necessary to their use in conjunction with a machine. Thus, copies of a computer programme made on a hard drive or in RAM are not infringing.
The lack of necessity of a "license" is demonstrated in the GPL. The GPL explicitly states "You are not required to accept this License in order to receive or run a copy of the Program.".
Re:Sweet! by Rekolitus · 2009-10-07 00:21 · Score: 1

After all: without altering the program (which is not allowed without a license)
Says who? If I own a copyrighted work, I'm entitled to do what I like with it, save for copying it. That includes modifying it. There is no difference here from me buying a book and scribbling all over it.
Depending on the software, you can also just extract the files without running the installer. Additionally, proving that you "agreed" to the licence needn't be nearly as simple; the user that uses the software isn't necessarily the person that installed it. I also have difficulty believing that EULAs are valid instruments; in disproving the false statements that only the EULA grants you permission to use the software, the EULA becomes extremely one-sided. EULAs that attempt to redefine the nature of a transaction that has already occured, from a sale to a grant of a licence, are particularly entertaining.

Simply put, a license is an agreement giving you the right to use the software.

This is simply false. If I make a piece of software, and distribute it for free online, I don't have to grant the users permission for their use of the software to be lawful. Copyright grants monopoly rights solely over the creation of copies; however, copies of computer programmes created that are technically necessary to the use of software in conjunction with a machine are permitted by law under USC 17-117.
A successful demonstration of this is the GPL:

You are not required to accept this License in order to receive or run a copy of the Program.
Re:Sweet! by Anonymous Coward · 2009-10-07 00:35 · Score: 0

After all: without altering the program (which is not allowed without a license), the program won't install before you explicitly agree to the license
If I buy a physical product in the store, I can start disseminating and altering the product immediately, since the sale and transfer is complete. I am not required to run Setup.exe, and I may not even intend to run it. I can unpack and install the data files manually, without ever encountering a EULA (which may not be uncommon, when you consider the original Doom and Quake games where the installer relies on an OS that is not in use any more and there's numerous 3rd party engines that just need the wad/pk* files). It's yet another problem with them in software, the assumption that you must have clicked through a EULA; there is no proof that a given person did, there were no third-party witnesses, no personal signature, nothing.. just the assumption that I used the product a specific way.
And if I wasn't already entitled to use the software, how could I run it to get to the EULA in the first place? Unless someone can show me the law where it says differently, I can't believe that physically purchasing a copy only entitles you to run its installer setup program and nothing else, until you agree to the EULA.
Re:Sweet! by gnasher719 · 2009-10-07 00:53 · Score: 1

Not only must they be legibly available, either the product itself or the party selling it to you must actively inform you that there is a general terms of business applicable to the product. So when you go to the shop and pick up a copy of Vista, the click-through EULA you need to accept to install isn't worth anything unless either the box or the sales clerk made its contents available to you before or at the moment of purchase.
Courts have said otherwise. To be more precise, the contract between you and the manufacturer isn't completed when you hand over your money if the manufacturer said there were other conditions. In case of a click-through license, the manufacturer may have to tell you that acceptance of the license is necessary to close the deal, and then the deal is closed when you click the "I agree" button. For this to be legal, the terms must be available and clearly visible to you at the time you click "I agree", and the manufacturer must give you the right to get your money back if you don't agree.

A contract, including a sales contract, is entered when both sides agree to it. If the seller didn't make clear to you that he requests that you agree to the license, then both of you haven't entered a sales contract. So nothing in the license agreement is binding to you, on the other hand you don't have the right to use the software, on the third hand you have the right to get your money back in exchange for returning the software.
Re:Sweet! by gnasher719 · 2009-10-07 01:02 · Score: 1

It's a demand that you either click "I agree" on or you lose value of what you purchased. You are being coerced. The "value" is being held hostage after it has already been paid for.
According to the UCITA, you can't legally agree to any license terms unless you can see the license, and the seller offers you your money back. If the seller doesn't offer you the money back, the situation is a bit complicated. The seller holds your money hostage, you hold the software hostage. Losing your money is wrong. Using the software without agreeing to the license is wrong. According to the UCITA, a court (and you, if you decide to use the software), would have to decide which is the bigger wrong, so you would be Ok in using the software without agreeing to the license as long as the damage to the seller isn't much bigger than your damage in losing the money.

Let's say hypothetically some software is sold with a "home use" license for $20 and a "commercial use" license for $2000. If a company buys a "home use" license for $20, finds they can't agree to the "home use" license, and is refused a refund of their $20, they wouldn't have the right to use it. If you buy the same software with the intent to use it at home, find some term in the license that you don't like, and are refused a refund, it is likely Ok for you to use the software at home.
Re:Sweet! by plague3106 · 2009-10-07 01:51 · Score: 2, Insightful

It's a demand that you either click "I agree" on or you lose value of what you purchased. You are being coerced. The "value" is being held hostage after it has already been paid for.
No, because you can return it for a full refund.
But "valid" in what sense? Is it a contract? It seems to meet none of the legal requirements of a contract. I get no consideration. I've already paid for it, I already own it, and I get nothing from the EULA (I gain from clicking the "I agree" button, but the EULA itself grants me nothing).
No, you get to use the software at the price you paid. That's your consideration. What the OP said is that you were informed there are terms which you can see when you install the program and to complete the sale you must agree to those terms. So the sale doesn't end when you walk out of the store. It ends when you read the EULA and accept or reject it. If you reject it, you back out of the sale and can get your money back. If you accept it, well you've accepted it.
It isn't even executed properly. Who is the agreement with? "Autodesk" can't make an agreement.
Um, it would be with Autodesk. Companies can't make an agreement? Since when?
No real contract is signed with the company name. They are always signed by a human, with explanation of how they represent the corporation.
What? Ever applied for a credit card? The application doesn't even HAVE a place for a company rep to sign. And do you know how you accept the contract once they accept it on their end? You USE the card, or activate it via an automated system. Oh, and its all legal too.
Where do you get this nonsense that a contract must be in a certain form and executed a certain way?
The inability to negotiate a contract (as opposed to the unwillingness, which is always allowed) is another disqualifying factor. So I can't see how a EULA can be a contract when it doesn't follow contract law.
Again, where do you get this nonsense? Theres no law saying a contract has to be negotiable to be valid. Have you ever signed up for ANYTHING? You can't negotate your cell phone agreement, nor can you your electric agreement. If I hand you a contract, tell you these are the terms, take it or leave it, you can do just that... take it or leave it. But you can't take it and then say "oh the contract isn't valid because he didn't let me negotiate."
At the very best you can get out of a contract... but then both parties take what they were offering back.
Re:Sweet! by jedidiah · 2009-10-07 02:13 · Score: 1

No. This idea that content is "licensed not sold" is just pure bullshit perpetuated by wannabe media moguls.
This court case reaffirms that.

--
A Pirate and a Puritan look the same on a balance sheet.
Re:Sweet! by Sloppy · 2009-10-07 02:23 · Score: 1

simply saying "yes" is an agreement
Clicking "yes" is not the same as saying yes, because: you're not saying it to anyone. You're not communicating. An agreement is something that happens between two parties, not a person and themselves, or a person and their own non-networked computer.
If some jurisdictions claim that buyers lose certain rights or their terms of use are governed strangely, ok. But it doesn't make sense for them to say that an agreement or contract happened, not even in a heavily one-sided take-it-or-leave it situation, because if the publisher and buyer don't ever meet or communicate in any way, then really, it simply didn't happen. The publisher is never going to be able to credibly put one of their salesmen on the stand and say that the buyer agreed in writing or verbally, shook hands, or even gave a slight nod. The publisher never got any signal from the buyer at all. Nothing.
There's no way to know whether they agreed or not. Nobody even knows if the buyer ever installed the software. From the publisher's point of view, once they sell the copies to their distributors or stores, zero bits of information ever come back to them after that. They don't know which copies got people to make agreement and which ones didn't. Maybe that's because no agreements happened at all. In real life, when I offer someone a deal and they take it, I know it happened. I get a Yes or an implicit No.

--
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
Re:Sweet! by JayAEU · 2009-10-07 02:24 · Score: 1

you have the right to get your money back in exchange for returning the software.
Interestingly enough, most retailers say in their terms that they won't let you return the software you bought for your money back.
Re:Sweet! by AK+Marc · 2009-10-07 02:38 · Score: 3, Interesting

No, you get to use the software at the price you paid. That's your consideration.

Paid. Past tense. I had a sale contract to buy the product, and they sold it to me. From the wording on the box and the "reasonable man" standard, that includes using the contents of the box I bought. They can't then give me something I already own. It's not consideration for them to say "you already own this, we are going to give you nothing, but we are going to take away lots of things you can do now if you click disagree, like resell it, reverse engineer it, or whatever."

For the standard car analogy, it would be like buying a car, then, after you paid for it and took it home, someone from Ford knocks on your door and says you need to sign a contract saying that you will not drive the car over 55 (to keep their safety record good) and that you'll always get your oil changed at Ford dealerships at your own expense and never resell it, and if you don't agree, they will sabotage your car so you can't drive it. Feel free to keep it and Ford will keep your money, you just can't drive it. Would you say "yes, that's a reasonable EULA and I think it's a great consideration to let me use what I've already bought"? Or would you tell them to go to hell and use the product you've paid for in the manner advertised? Why can they, after the sale of the product, then apporach you and tell you that they are going to then reduce the value of the previous sale with no consideration?

--
Learn to love Alaska
Re:Sweet! by MBGMorden · 2009-10-07 02:49 · Score: 1

Indeed. It seems like this court affirmed that the software was sold and NOT licensed yet the poster basically just popped up and said:
"Ok, yea, but, um, naturally the license still applies.".
No buddy, that's the whole issue. The user bought the software - he didn't license it. Copyright law merely protects duplication rights of the product. Once a legal copy has been created by the copyright holder, anyone is free to sell, use, destroy, or do what they like with that product, save making an illegal duplication of it.

--
"People who think they know everything are very annoying to those of us who do."-Mark Twain
Re:Sweet! by Okind · 2009-10-07 03:20 · Score: 1
So in short, a EULA is generally always valid.
But "valid" in what sense? Is it a contract? It seems to meet none of the legal requirements of a contract.

True, a EULA is not a contract. It cannot be. But a EULA can be (and usually is) seen as general terms of business.

If you don't want to be bound to the license, your only recourse is not to use the software.
So you bought it, you own it, and you can't use it. That's not what I paid for. I bought something that said "use this for CAD" and I want to use if for CAD under reasonable terms. If I find their terms unreasonable after I've bought it, then how do I negotiate with them for terms we both can agree on? If no agreement can be reached (because a EULA has no mechanism for negotiation, and negotiation is one of the requirements of contracts), then it isn't a valid contract. Clicking "install now" isn't a legal decision, but a requirement to make the software work. Clicking "I agree" has nothing to do with whether I (or a reasonable person) actually agrees to everything in there, but is a button that must be pushed to use software already bought and paid for, no different and no more legally binding than "install now."

Your point is moot, as a EULA is not a contract. It it seen as general terms of of business. For consumers, those are not negotiable. At the time of purchase you implicitly agree to them.
In short:
- A EULA usually constitutes general terms of business.
- General terms of business must be legibly available before purchase to be valid, but they are not negotiable.
- Your local law may have other restrictions, such as the right to make a backup copy, fitness for purpose, etc.
- By purchasing, you agree to the terms / license.
If you cannot agree to the license because you find it unreasonable, unfair or because it uses the letter e on a monday, your only option is not to buy.
Note: that my understanding of law is heavily biased towards European law, as I live in the Netherlands.
Re:Sweet! by Okind · 2009-10-07 03:27 · Score: 1

You would have a valid point, were it not for one simple thing: the license is not just about copyright. It's about general terms of business.
Because a software license is usually used as general terms of business, you implicitly agree to them when buying/downloading the software. An "I agree" button is just icing on the cake; only in jurisdictions that allow shrink-wrap licenses are they useful.
Re:Sweet! by gnasher719 · 2009-10-07 03:52 · Score: 2, Interesting

Clicking "yes" is not the same as saying yes, because: you're not saying it to anyone. You're not communicating. An agreement is something that happens between two parties, not a person and themselves, or a person and their own non-networked computer.
The agreement or non-agreement comes from the total of your behaviour. If you click "I agree" by mistake, but then don't install the software, then your action of not installing the software indicates quite clearly that you haven't agreed. If your cat jumps on the mouse button, you haven't agreed. If you wait patiently for your cat to jump on the mouse button (assuming your cat likes playing with your computer mouse), and you install the software as soon as the cat clicked "I agree", you have agreed even though you never clicked the button yourself. If you hack the installer to install the software without clicking "I agree", I guess it is your choice whether you actually agreed or committed an act of copyright infringement, and quite likely a DMCA violation.

Now if for some reason you ended up in a court, that would be a civil court, where preponderance of evidence counts. So if the seller can prove that the "I agree" button was indeed clicked, but you claim that his happened by accident and you can prove that the software was never installed, then it is more likely that you didn't agree. If the seller can prove that the software was installed, then it is more likely that you agreed.
Re:Sweet! by Teun · 2009-10-07 04:14 · Score: 1

Indeed, but we are protected by the law.
Yet it might take a few cases before the various retailers and software houses see the light.

--
"The likes of Facebook and WhatsApp are free to those whose privacy is of zero value."
Re:Sweet! by Crispy+Critters · 2009-10-07 05:13 · Score: 2, Interesting

"If I own a copyrighted work, I'm entitled to do what I like with it, save for copying it."
I would be interested to know where you live that has laws like this. I live in the United States, and the laws here are very, very different. There are all sorts of things that you cannot legally do that do not involve copying the work, including for example transcribing lyrics of songs and public performances. I also can't buy a book, replace the covers with new ones that list me as the author, and resell it.
None of these things is copying the work, and they are illegal where I live (in the United States).
Re:Sweet! by Rekolitus · 2009-10-08 00:02 · Score: 1

Ooh, I don't think so.
The "general terms of business" are defined in law as a statutory contract. Ergo, even underage individuals can enter into a contract of simple trade.
If such terms were to be imposed as "general terms of business", some sort of contract would be signed at the time of purchase. Yet purchasing software involves nothing more than the default statutory contract of trade.
The nonsense found in EULAs has no such government endorsement. What's more, entering into a contract requires some sort of knowledge of the contract. You can't tell me that downloading something from a website has made me a party to a contract, because having no idea of this, it's impossible for me to be a party to it.
Re:Sweet! by Sloppy · 2009-10-08 02:24 · Score: 1

If you click "I agree" by mistake, but then don't install the software, then your action of not installing the software indicates quite clearly that you haven't agreed.
[Emphasis mine.]
No, that's just it: whether you agree or disagree, nothing ever gets indicated at all. From the software publisher's point of view, the agree/disagree situations are completely identical without them having any way of knowing which one happened. All they know is that they sold an extra copy to some distributor. They don't know who (even pseudonymously) they have "agreements" with, or even if they have any agreements with anyone at all, because nothing happens that allows that information to get to them.
Software EULAs are the first time in history of thousands of years of commerce, where people are claiming to have contracts with other people who: they have never met, never had any (even highly informal) business dealings with, never had any (even indirect through proxy) two-way communications with -- not so much as a single bit of information to indicate whether the EULA offer was accepted or declined.
And this is a "meeting of the minds"? Wow. If so, it's a million times more subtle than even the most imbalanced contract of adhesion in all history prior to that.
At best, it's a radical new invention that is completely contrary to all common law, all laymen's (and probably most judges' and lawyers') concepts of what a contract is, and fabricated out of thin air. Oh, and it also happens to be unfair (since the offer-you-can't-refuse is made after the buyer has already spent his money), but that's probably beside the point. Are they real? Well, that's what this story is about: yet another inconsistency where one hand of the government doesn't know what the other is doing. This judge says a sale took place, and Blizzard's judge says it didn't. There ought to be a law...

If you hack the installer to install the software without clicking "I agree", I guess it is your choice whether you actually agreed or committed an act of copyright infringement
Actually, I would claim Fair Use. Just about anything I do to make it so that the software works, is going to pass all 4 of the tests. Don't get too hung up on derivative works; you wouldn't believe all the precedent. I've seen people use highlighters in books, I've seen used book/CD sellers write prices on or inside the covers, etc. Repairing a defective installer, especially for a purpose that's already codified as legal (installing software) is nothing.
(Well, actually, you sorta got me on DMCA. That changed the whole game.)

--
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
Re:Sweet! by jgostling · 2009-10-08 08:14 · Score: 1

So you mean that a company that releases a firmware update for the sole purpose of screwing up homebrew "actually LIKES homebrew"? I'm left to wonder about the logic behind that. If they really liked homebrew, they would follow on the footsteps of Microsoft and release something along the lines of XNA Game Studio. That would show official support for legit homebrew while getting them more community support when dealing with the shadier elements of the current homebrew scene.

Cheers!
Re:Sweet! by AK+Marc · 2009-10-08 08:27 · Score: 1

A EULA usually constitutes general terms of business.
General terms of business must be legibly available before purchase to be valid, but they are not negotiable.

Would that include if you walk into a store and see a box for "Joe's CAD" and it says "terms and conditions at www.example.com/terms" which contains the EULA. However, you have nothing to check that on you, and the store doesn't have an available Internet connection. You could always leave, go home, check it, then come back. Or, you could say "the terms were not presented at the place of sale and not visible at the point of sale until after the sale was completed." So where do shrinkwrap license agreements come in?

--
Learn to love Alaska
Re:Sweet! by Okind · 2009-10-09 02:37 · Score: 1

A EULA usually constitutes general terms of business. General terms of business must be legibly available before purchase to be valid, but they are not negotiable.

Would that include if you walk into a store and see a box for "Joe's CAD" and it says "terms and conditions at www.example.com/terms" which contains the EULA. However, you have nothing to check that on you, and the store doesn't have an available Internet connection. You could always leave, go home, check it, then come back. Or, you could say "the terms were not presented at the place of sale and not visible at the point of sale until after the sale was completed." So where do shrinkwrap license agreements come in?

A very good point. This question is answered differently in the various jurisdictions around the world, in they define how the terms must be available. In some jurisdictions, it's enough that the general terms of business are only deposited (and thus available) via the chamber of commerce. In others, they must be available via the chamber of commerce, the company (website/mail/...), and sometimes also in the store itself.
Fortunately, this question also applies for non-digital purchases. So wherever you live, there is very likely to be a lot of case law and precedents addressing this issue.

Be thankfull for Vanessa Redgrave by Anonymous Coward · 2009-10-06 17:44 · Score: 0

He should send a thank you note to Vanessa Redgrave :-)

Can o' worms by pieisgood · 2009-10-06 17:47 · Score: 1

Oh no they didn't.

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Eat sleep die

Re:Can o' worms by kitsunewarlock · 2009-10-06 18:40 · Score: 4, Funny

Cans of Worms have lids for a reason.

Mostly because opening the can is a violation of the EULA, voids your warranty and forces you to rely on downloading 3rd party patches for your can as you can no longer connect to WormNet, the premiere Can o' Worms networking solution software that is required to run alongside your Can o' Worms at all times.

--
Ginga no Rekshiya Mata Each page.
Re:Can o' worms by Thanshin · 2009-10-06 18:52 · Score: 2, Funny

Cans of Worms have lids for a reason. Mostly because opening the can is a violation of the EULA, voids your warranty and forces you to rely on downloading 3rd party patches

You probably broke the can of worms while trying to install unauthorized worms.
Re:Can o' worms by mundanetechnomancer · 2009-10-07 09:00 · Score: 1

or he was trying to use the can of worm in a way that differs slightly with the *very* specific conditions for which they designed the can to operate under (These conditions are, btw, unspecified but assumed to be what you are going to be using, despite the many possible variations. Any conditions other then the *proper* conditions will result in the assumption that the can of worms is, in fact, stolen.)

Re:Information wants to be free by ZosX · 2009-10-06 17:49 · Score: 5, Insightful

"You can't own software, man."

Define ownership. You can own the physical (ever disappearing) media that the software comes from. You can own the rights to the software and its code. You can own a license to use the software. This is the problem and one that will be challenged in the future when software moves to pure digital distribution. Do you actually own what is on your hard drive? I say yes, but what happens when you have to reinstall and your only installer is some steam-like gateway that approves and disapproves of your access to said software? This is going to be a MAJOR shift your rights to copy software and make backups. The tide is already turning away from the consumer (some would say its long since been gone), but when you have no way to just reinstall software it might create some serious problems.

Like here is an easy example. You needed to reinstall windows (again!), but you ran out of installs on your oem key. Whoops. Gotta call microsoft and beg them to let you use the software you own. Next you go to install Photoshop with adobe's new digital distribution service (the only way to get CS5), but their server is down and you need to work on a project today. If you had a disk you could just install, but no, you as a paying customer get to be treated like a potential criminal. I know this is kind of extreme, but you see where I'm going and we are really almost at that point.

Sorry for the generalizations. I'm pretty much toast right now. Time for bed. Goodnight slashdotters!

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zosxavius photography

I for one ... by milosoftware · 2009-10-06 17:52 · Score: 1

... welcome the overlords who licenced us and now pwn.

--
Musicians don't die. They just decompose.

The last hurdle for download distribution? by pegasustonans · 2009-10-06 18:07 · Score: 4, Insightful

Not that this will ever happen, but, if the ramifications of this decision are taken to the next level, it could enforce the consumers' right to resell the license to a given software application.

This, in turn, could mean that one could exchange and resell licenses of downloaded games and other media. Of course, the industry will likely pay off any relevant political actors in the interests of piracy prevention long before this occurs.

Then again, software companies are much more open to this type of idea than they were ten years ago. Well, we can always hope.

--
And all our yesterdays have lighted fools The way to dusty death. --Will

Re:The last hurdle for download distribution? by QuantumG · 2009-10-06 18:09 · Score: 1

huh? what? You can resell a download perfectly legally.. the problem is more typically finding a buyer. Of course, if there's any DRM on that download, it's illegal to break it.

--
How we know is more important than what we know.
Re:The last hurdle for download distribution? by pegasustonans · 2009-10-06 18:11 · Score: 4, Informative

huh? what? You can resell a download perfectly legally.. the problem is more typically finding a buyer. Of course, if there's any DRM on that download, it's illegal to break it.
I was referring to reselling the license, not the download itself. Actually, I was referring to giving the license away for monetary compensation or no compensation, depending on personal preference (just like a physical disc).

--
And all our yesterdays have lighted fools The way to dusty death. --Will
Re:The last hurdle for download distribution? by Vaphell · 2009-10-06 20:15 · Score: 4, Insightful

true that i wish it was mandatory by the law to allow reselling with full rights transfer and creating obstacles would get smacked hard. There is need for real protection of user rights, companies have it way too easy to fuck with them. Right now they have a dozen of dirty tricks in their playbook to circumvent 1st sale doctrine and kill 2nd hand market - DRMs, steam like authorizations, binding products to user's account permanently and all that shit are there for exactly that purpose. One can dream...
Re:The last hurdle for download distribution? by Jared555 · 2009-10-06 23:42 · Score: 1

What is fun is it is getting to where it is difficult if not impossible to resell the license when you even buy a physical copy, unless you sell every game on your account. You are basically buying a one time use key to add to your account and (sometimes) make the install process quicker.
Re:The last hurdle for download distribution? by MBGMorden · 2009-10-07 02:57 · Score: 1

Hell it's getting hard just to keep your purchases if you move between systems these days. I've been through 5 or 6 DVD players in my time, and about as many VCR's. All my discs or cassette's all work in any of them though.
Compare to digital media. Movies bought on an Xbox 360? Not only can I not take them with me to another brand of device, but if my current 360 dies I can't even take them to a new one. On the computer? Same thing. Used to be if I wanted to backup my files I copied them to a backup tape and if I needed to restore to a different computer I restored them back. Now though, If you DARE want to make a backup of a DRMed file you have to jump through the myriad of hoops that are different for every type of file you bought.
Got some old PDF ebooks? Figure out if there's a way to transfer those off.
Old WMV9 files? Figure that out separately.
And for goodness sakes if it's some type of online verification DRM pray that the servers are actually still up and running. Companies change DRM schemes like most people change underwear. They don't seem to understand that people might actually want to keep using the stuff they paid for.
The whole thing resulting in the most fragmented messed up situation I can imagine. Individual programs and even devices are holding your data hostage with no hope of inter-operation.

--
"People who think they know everything are very annoying to those of us who do."-Mark Twain
Re:The last hurdle for download distribution? by pearl298 · 2009-10-07 09:51 · Score: 1

That is exactly the question that this court ruling is all about! CAN you resell the download legally or not?
DRM merely adds a layer of obfuscation.
Re:The last hurdle for download distribution? by Eil · 2009-10-07 09:52 · Score: 1

i wish it was mandatory by the law to allow reselling with full rights transfer and creating obstacles would get smacked hard.
You can't have it both ways. It's only one or the other: Either there is no DRM or there is no rights transfer.
If there is no DRM, and reselling of copyrighted content is legal, there is nothing stopping someone from downloading an MP3, making 5 copies of the file on his hard drive, and selling each of those 5 copies to someone else because there's nothing to verify the authenticity of those files. It's usually pretty obvious when a music CD has been copied (different color media, poor or non-existent insert), not so obvious when an MP3 has been copied. The only way to reconcile this is to make the legal transfer of copyrighted, non-DRM content illegal. (Obviously content could still be distributed under an open license that allows free redistribution, like Creative Commons.)
However, content protected by DRM should be expressly allowed by law to be resold and otherwise allow the transfer of ownership rights since those files cannot simply be copied and played in an unrestricted fashion. DRM was invented to give content publishers all of the benefits of digital distribution and none of the drawbacks; consumers should not have to suffer none of the benefits and all of the drawbacks. Companies who implement DRM on their content distribution systems should be required to build into them a way to allow one individual to transfer their rights to another individual.

Re:Information wants to be free by Anonymous Coward · 2009-10-06 18:17 · Score: 0

OMG p0wnes!1!!

Hey, someone had to say it ...

Re:Information wants to be free by Anonymous Coward · 2009-10-06 18:37 · Score: 2, Funny

Unless its Leenux - then you better follow that gnu/license you software pirate!

Can a lawyer explain this to me? by Anonymous Coward · 2009-10-06 18:50 · Score: 3, Interesting

My understanding is that in this particular case Autodesk was essentially marketing the software exactly like a product instead of something that is licensed, thereby they couldn't claim that the product was in effect being licensed. Does this have any effect on shrink-wrap licenses and/or regular software?

Re:Can a lawyer explain this to me? by Turzyx · 2009-10-07 06:23 · Score: 1

IANAL, but this seems to have set a nice precedent. Effectively, anything that isn't marketed explicitly as a "license" sale before purchase should mean individuals can transfer/sell the physical media and rights to use the software as they please.

I would go as far as to say that any online retail stores that say things like "buy now" or "purchase" next to said items are marketing the items as a product in and of itself already, in fact.

The next milestone in awarding the proper rights to the consumer should involve removing activation and/or measures that prevent activation on different machines (and therefore limit the scope of re-sale).

Re:Information wants to be free by Plekto · 2009-10-06 18:51 · Score: 1

I say yes, but what happens when you have to reinstall and your only installer is some steam-like gateway that approves and disapproves of your access to said software? This is going to be a MAJOR shift your rights to copy software and make backups.

True, but it makes sense that any physical copy that you have is exactly like any other physical object that you want to sell or give away. I think all this will do, though, is make software publishers move their content to purely online and charge a hefty premium for a hard copy(my data recovery software is like this, actually - and yes, I paid the $20+shippng/tax extra for the CD).

Re:Information wants to be free by Kjella · 2009-10-06 18:52 · Score: 5, Insightful

Extreme? No. I've been locked out of software I bought, probably because of trying to make it work under WINE with quite a few installs. Took them three days to answer mail (was on a weekend), I had said "fuck it" and downloaded DVD+crack long ago. I probably don't need to tell you what happened to my Stream games when the %#% cable company took a month and a half to fix my Internet. I do want to pay for the good stuff, what little there is of it, but that sort of thing makes me mad. Particularly because me buying something, despite having the full thing downloaded already, only "proves" that DRM works *rolls eyes*. No, it doesn't. DRM is and always will be pathetically useless. It might mean I actually like it and want more games/movies/music/series/whatever like that though. At least the music industry seems to have finally gotten the message even though they were dragged kicking and screaming into the DRM-free world.

--
Live today, because you never know what tomorrow brings

Re:Information wants to be free by Budenny · 2009-10-06 18:57 · Score: 5, Informative

The various cases on this matter make it clear that there are three different things involved. Read Title 17 Section 117.

You may own copyright in the software. This gives you the right to control what copies are made, with one exception. This, copyright ownership, is what people usually mean when they talk about owning the software. It is the same as a publisher owning copyright to a book. He may print and sell as many copies as he wants.

You may also own a retail copy. This is what Vernor finds, and what Softman found before that. It has been repeatedly argued by software suppliers that you do not own the copy, that you only own a license to use. It has now been found for the second time that you own it, and the criterion used is whether the supplier has any right to repossess. If not, the copy is yours.

We next come to copies made in way of use. If the software is not supplied 'live', ie running off the installation media, it must be installed. Installation constitutes copying. It would be illegal under copyright law without some explicit permission. In fact the sort of copying which also occurs during use when the software is read into memory was found illegal in the well known MAI case, until Title 17 S 1117 was revised as a result of this case.

The revisions provided that copies and modifications made or authorized by the owner which were essential to use with a machine (notice the article, "a" machine) are permitted. But 117 also provides that if you resell the copy you own, you may only sell with it the copies you have made in way of being essential to use, with the consent of the copyright holder.

So, to summarize the situation, when you buy a retail copy of software, you own that copy. You do not become the copyright holder, your right to make copies is limited by Title 17. You may make copies (or modifications) that are essential to use with "a" machine - by implication, the machine of your choice, not of the copyright holder's choice. But your rights over resale of those copies is limited.

Two things are sometimes argued about this.

(1) It is sometimes argued that you may only use a machine which is essential. For instance, you may not install OSX on a Dell, because a Dell is not an essential machine, you could equally well use a Mac. Wrong. The machine does not have to be essential, and the article is indefinite, "a" machine. What has to be essential is the copying.

(2) It is also sometimes argued that because you have no rights of resale of the copies made in way of being essential to use, the copyright holder owns them, and you do not. There is no ground for this view. The test of repossession does not suggest this. The copyright holder has no right of repossession of those copies, and you have a right to them in perpetuity with no further payments. The situation is, you own them but you have restricted rights of resale.

So where does this leave Psystar and OSX? In a very simple situation. If they installed without having transferred the ownership of the retail copy of OSX to the customer, they were in violation of copyright. If they were made when ownership of machine and copy had been transferred, they were permitted by 117 as having been authorized by the owner, and were not then resold, so no permission for transfer was required, as they were never transferred.

This means that there need not have been any violation of copyright, but there was of course a breach of the Apple EULA. Whether the term of that EULA which obliges you to buy your hardware from Apple is enforceable is a quite different matter. But as far as copyright goes, you are the owner of any retail copy of OSX, or MS Office, that you have lawfully acquired. There is nothing in copyright law to stop you installing it wherever you want, as long as you do not make more than one copy. It says "a" machine, remember.

Mod parent up by Scareduck · 2009-10-06 18:59 · Score: 1

Do not have mod points, but this comment deserves up mods.

--

Dog is my co-pilot.

In Europe, this is the law by valentyn · 2009-10-06 19:01 · Score: 4, Interesting

This is already European Law (which must be implemented in local laws in al member states). Once sold whithin the EU, you're free to resell your license.

The problem is in the details: if you buy software (i.e. a license to use it), you normally also get a bunch of other rights, like access to updates, maybe even the right to call someone. The law doesn't say that these rights are also transferrable (or transferred). So in most licenses, there's still plenty of "you cannot do this and that (resell, for example), or you will loose the right to such and so".

But the resale of the license to plainly use the software cannot be forbidden by contract in the EU.

--
my other sig is a 500 page novel

Re:In Europe, this is the law by Jared555 · 2009-10-06 23:43 · Score: 1

What about a system like steam where even when you buy a physical copy it is linked (at least at one time) permanently to your account. Same with most MMORPGs I have seen that actually require purchase of the game, etc.
Re:In Europe, this is the law by Aradiel · 2009-10-07 04:38 · Score: 1

What of DRM in general, where if you resell the physical goods or the liscense the person buying it won't be able to run the software? I'd love it if someone could set a precedent making DRM essentially illegal.
Re:In Europe, this is the law by Anonymous Coward · 2009-10-07 22:07 · Score: 0

In that case, German law may be in conflict with the european law, since recently a high court has found that the bits and peices of a volume license (i.e. separate windows licenses) cannot be resold. I believe the same has been found for software (including license) that has been a pure download as opposed to a software that is still shipped on physical media.

Very important stuff by Qubit · 2009-10-06 19:01 · Score: 1

Has Nintendo legally gone after anyone for homebrew?

Naw, last I heard they keep their lawyers super busy going after people who mention their favorite Nintendo games in their online profiles.

--

coding is life /* the rest is */

Re:Very important stuff by Anonymous Coward · 2009-10-07 01:56 · Score: 0

Given that the comics are from 2004, you must have gone deaf almost five years ago.
Re:Very important stuff by Anonymous Coward · 2009-10-07 02:39 · Score: 0

And um, further down on the page you linked to is a link to a sincere apology from Nintendo and the offer of a free video game system to the recipient of the nastygram. They did the "right thing."
Doesn't mean I'm not still mad about level the bug in Mario Brothers level 255! DYAMIT!
Nerd rage is forever.
Re:Very important stuff by Anonymous Coward · 2009-10-07 04:12 · Score: 0

Did you read the whole article you linked? Nintendo posted an apology and admitted they were wrong.

gedw99 by gedw99 · 2009-10-06 19:35 · Score: 0, Troll

Autodesk are Â/Â&Â&'s. Really. I had an AutoCAD licesne that i sold eventually with the hardware dongle years ago. They really stink. 4,000 for a single license is crazy

Re:gedw99 by Jaysyn · 2009-10-06 22:59 · Score: 1

MicroStation is even more expensive. BTW, which version of AutoCAD were you using that had a hardware dongle? I've been drafting for over 13 years now & haven't run across one.

--
There is a war going on for your mind.
Re:gedw99 by Anonymous Coward · 2009-10-07 00:34 · Score: 0

3d viz has the dongle in order to use the program the dongle needs to be connected.
Re:gedw99 by Anonymous Coward · 2009-10-07 01:02 · Score: 0

I remember my university having a pain in the but time with trying to mount the serial dongle inside the case. I believe that was AutoCAD 13, but it might have been 12. 13 was buggy and a lot of companies skipped it. I used 14 at work and don't remember ever having a serial dongle, so I believe it was before this. Autodesk also used this same serial dongle on copies of 3D studio that came out about that same time (late 90's).
Re:gedw99 by Jaysyn · 2009-10-07 01:52 · Score: 1

Ah ok. It must have been r13 cause we went from r12 to r14 & neither of those had dongles.

--
There is a war going on for your mind.
Re:gedw99 by Anonymous Coward · 2009-10-07 02:56 · Score: 0

AutoCAD 2.5 required a dongle to run. A few months later, a 2.52 patch removed the dongle. AutoDesk wised up about dongles faster than SOME people did - I'm looking at you, P-CAD!

Re:Information wants to be free by JohnBailey · 2009-10-06 20:22 · Score: 3, Insightful

You can't own software, man.

Then you can't sell it or steal it either.

--
It is difficult to get a man to understand something when his job depends on not understanding it.

This cover right to SELL only, right? by gzipped_tar · 2009-10-06 20:22 · Score: 2, Insightful

So what if I want to give my used license to a friend for free? I can still be sued by the software company and lose, right? What if I resell it for a token price of $1? $0.01? Or just give it away?

--
Colorless green Cthulhu waits dreaming furiously.

Re:Information wants to be free by Scamwise · 2009-10-06 20:23 · Score: 1

That scenario is nothing, try installing the lastest version of Grand Theft Auto without an internet connection...

--
Sam "to lazy to register" Look

Re:Finally! I can now own Linux. by gzipped_tar · 2009-10-06 20:25 · Score: 1

GPL is about what you should observe when you make copies/derived works and distribute them. No copies or derived works are made in this case.

--
Colorless green Cthulhu waits dreaming furiously.

Re:Finally! I can now own Linux. by eldorel · 2009-10-06 20:33 · Score: 2, Insightful

There is a difference between a distribution license and a software license.

Gpl, Lgpl, and the like are the former. The right of first sale applies to the latter.

You can already resell linux distros with no issue anyway, and you do own the software when you get it (either via download or by purchasing a disk).

There's no Eula on linux....

So how exactly does this work? by misnohmer · 2009-10-06 20:46 · Score: 1

If there are conflicting precedents, the oldest one overrides? Does this automatically overturn the latter, conflicting precedent rulings as invalid? Does this also mean that once a precedent is set, the courts cannot ever rule differently no matter what, only congress can overwrite?

Re:So how exactly does this work? by djjockey · 2009-10-06 23:01 · Score: 1

Generally... A higher court can overrule, and courts at the same or lower level must follow the prior decision (precedent). The facts of the case must be similar. If there are enough differences in the situation, then the court can make a different decision. This is how you can have different precedents that are referred to in the summary.
Without details, I would assume that there were two possible precedents that fit this particular case, in which case the older precedent applies.
Oh, and for the record, I dropped out of law school...

Isn't a fundamental aspect of this case... by L4t3r4lu5 · 2009-10-06 20:58 · Score: 3, Insightful

... that he didn't use the software himself, and therefore was not bound by the shrink-wrap license? He purchased them for resale only.

--
Finally had enough. Come see us over at https://soylentnews.org/

Re:Isn't a fundamental aspect of this case... by amplt1337 · 2009-10-07 02:03 · Score: 1

That wouldn't matter. All that would do is say that the chain of legal ownership got broken from whatever source he bought the software. If the license is not transferable by sale, then "I bought it to resell" has no more validity than "the software fall off the back of a truck."

--
Freedom isn't free; its price is the well-being of others.
Re:Isn't a fundamental aspect of this case... by Sique · 2009-10-07 03:31 · Score: 1

He still can sell the CD though. If the prospective buyer is not allowed to run the stored program because of some license issues, then we have a completely different problem.

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.sig: Sique *sigh*

Re:Finally! I can now own Linux. by 91degrees · 2009-10-06 21:12 · Score: 1

It leads to an interesting problem though. Suppose I sell you a copy of a GPL product and the source code on two separate CDs. You then sell Person B the source code CD and he sells it to person C. Is Person B obliged to provide the source to Person C on request even though he isn't capable for doing this?

Re:Information wants to be free by Fross · 2009-10-06 21:27 · Score: 3, Insightful

The version on TPB works just fine.

They are DEFINITELY wanting a different outcome by Anonymous Coward · 2009-10-06 22:05 · Score: 0

"Precedent binds the court regardless of whether it would be good policy to ignore it."

Why would they say that if they didn't want a different outcome? If that were the case, "Precedent binds the court" would be enough.

"The Court said that it had to follow [the film] case's precedent because it was older than another conflicting ruling, and that it could not choose a precedent based on the most desirable policy"

it couldn't choose a precedent based on the most desirable policy, therefore the precedent they followed was not the one that leads to the most desirable policy.

It's pretty cut-and-dried, kid.

Re:Information wants to be free by Anonymous Coward · 2009-10-06 22:07 · Score: 0

Steam have an offline mode, you know.

It's a post-sale condition by Anonymous Coward · 2009-10-06 22:13 · Score: 0

Therefore you recieve no consideration for this contracted restriction. therefore there IS no contracted restriction.

You don't even need a license to install and use a program. In the US this is EXPLICIT. Actual use of the program is not covered by copyright. In the UK, personal use was not legal but there was no damages and such breech was a strict tort problem and therefore you could only ask for damages: nil.

So there's no need to have a license, and clicking "I agree" doesn't agree to anything for software.

Additionally, especially in the UK, but it is generally true, a contract or restriction has a cooling-off period. One or two weeks in many US states, 28 days statutory minimum in the UK. You can agree, then disagree and get a full refund and stop using the product.

If the EULA "I Agree" button was a genuine legal contract, you would get this cooling off period too.

Re:Information wants to be free by Anonymous Coward · 2009-10-06 22:19 · Score: 0

Ahem, gp said "without an internet connection..."

Re:Information wants to be free by hairyfeet · 2009-10-06 22:28 · Score: 5, Insightful

And you just hit the nail right on the head with that simple statement, bravo. All this bullshit does is make the pirated version in EVERY WAY better than the "legitimate" version. Take my case for example, I have to fricking crack every. damned. single. game. I own. Why? Because XP X64 (my OS of choice) plays all the games, even the older ones beautifully while giving me access to my 8Gb of RAM but the ^&%$&^&$^&%$ DRM don't work, that's why!!! You get that stupid "insert disc in drive E:" bullshit. It IS in drive E:, you stupid piece of crap!

And God help you if you don't notice the sometimes invisible warning and get "starforced" as guess what? Their damned uninstaller don't work on x64 buddy! That's right, enjoy a day spent dual boot and hacking the reg to get rid of that festering turd, but as you pointed out TPB version works just fine on XP X64. But I think this guy (warning-language which you can't blame him for if you watch the video) says it better than I ever could.

Just give me one more Starfoce infection game makers, just one more, and yes it IS an infection, as a PC repairman I can tell you that a Starforce+Safedisc+SecuROM infection is nastier than most malware out today, and you can kiss my money goodbye. If my choices are paying for the "privilege" of getting kicked in the nuts or NOT paying and not getting kicked in the crotch or spending more time "enjoying the fun" of removing your broken DRM than playing your latest crappy $59 "extravaganza"? Well it'll be TPB for the win, and you'll have NO ONE to blame but yourself. Because I don't know about everyone else, but I'm mad as hell and I'm not going to take this anymore!

--
ACs don't waste your time replying, your posts are never seen by me.

Re:Information wants to be free by jonbryce · 2009-10-06 23:51 · Score: 1

You own your copy of the software, and the first sale doctrine allows you to sell that to someone else.

Re:Information wants to be free by hellop2 · 2009-10-06 23:59 · Score: 1

You said you may only make 'a' copy. And you said that installing from media constitutes a copy. To clarify, the law says that you can also make an archival (backup) copy. You know, in case your CD gets scratched. From copyright.gov:

Under section 117, you or someone you authorize may make a copy of an original computer program if:

* the new copy is being made for archival (i.e., backup) purposes only;
* you are the legal owner of the copy; and
* any copy made for archival purposes is either destroyed, or transferred with the original copy, once the original copy is sold, given away, or otherwise transferred.

--
How many more years will slashdot have an off-by-one error on your Score in your profile?

"Ownership society" vs. "Licensure society" by dpbsmith · 2009-10-07 00:05 · Score: 1

This is good. There is much to be said for and against an "ownership society" but I can't recall publicly advocating our transformation into a "licensure society."

I have no doubt that the same people who are trying to outlaw analog recording devices are planning a campaign behind closed doors for the eradication of "ownership" as a concept in U. S. culture, but they would never dare to say it in public.

Software licensing made sense when software was a semi-custom low-volume craft product; when there were small numbers of transactions and actual negotiations took place on every purchase; where the amounts of money involved were in six figures, and both parties had lawyers on retainer.

Today it makes no more sense than to say "this T-shirt is licensed, not sold" or "these skis are licensed, not sold."

--

"How to Do Nothing," kids activities, back in print!

Re:"Ownership society" vs. "Licensure society" by Krishnoid · 2009-10-07 06:38 · Score: 1

Today it makes no more sense than to say ... "these skis are licensed, not sold."
No *more* sense perhaps, but people rent skis. IANAL, can someone comment on the legal difference between licensure, rentals, and leasing?

Don't read too much into 'a' by tepples · 2009-10-07 00:07 · Score: 1

You said you may only make 'a' copy.

Don't read too much into the word 'a'. It appears Congress wanted to limit the number of copies to however many are reasonably necessary for "an essential step in the utilization" or "for archival purposes". If it wanted to limit the number more specifically, it would have used the long form of the article: "one copy", and 117(b) would have begun with "The exact copy", not "Any exact copies".

Owning software vs. owning a book by tepples · 2009-10-07 00:09 · Score: 0

This, copyright ownership, is what people usually mean when they talk about owning the software.

But do people usually mean copyright ownership when they talk about owning a book? I don't think so. If not, where did the difference come from.

Re:Owning software vs. owning a book by Crispy+Critters · 2009-10-07 04:59 · Score: 1

People are sloppy because the meaning is usually clear from context. Whether I say I own SimCity or The City & the City (the ancient computer game and the excellent novel by China Mieville, respectively) no one imagines that I am talking about copyrights, because most people don't own any meaningful copyrights (I own the copyrights to my blog posts, but no one really gives a hoot). Vernacular English does not provide us with the tools to speak unambiguously about these matters.
The issue comes up more with software because it is easy to copy. I am not going to scan my hardback of The City & the City and start printing my own copies (if for no other reason then because it is probably cheaper to buy it at B&N). I am a lot more likely to copy the CD of SimCity, because it is so easy to do so and nearly free. So the the distinction between owning the copyrights and owning a copy is much more of an issue for software and music. It is also relatively new because high-quality almost-free copying hasn't been available to the masses for that long.

mac os x on any systems and this ruling? by Joe+The+Dragon · 2009-10-07 00:37 · Score: 0, Troll

mac os x on any systems and this ruling?

Does this make even more legal to BUY mac os x and put it on any system? vs real black area that it is in now?

Does this help psystar computer in there case?

How about other software where they try to take away the right of first sale and try stop you from selling / moving software that you pay for to others?

Re:Information wants to be free by K.+S.+Kyosuke · 2009-10-07 01:19 · Score: 1

You can't own software, man.

Try telling that all those software companies... :-)

--
Ezekiel 23:20

Anybody sued for building their own Hackintosh? by walterbyrd · 2009-10-07 01:26 · Score: 1

I don't mean distributing, like Psystar does, I just mean building their own system. What would the BSA do if they came upon a Hackintosh?

Re:Information wants to be free by windex82 · 2009-10-07 01:29 · Score: 2, Interesting

Whoops. Gotta call microsoft and beg them to let you use the software you own.

I don't believe you've ever called Microsoft to get software activated. Unless by begging you mean answering "no" or "one" to the "is this installed on any other computers" or "how many computers is this installed on" questions. In that case your and my definition of the word are completely different.

I agree with you in that you shouldn't have to in either case but the phone activation is far from difficult and have never been denied an activation key despite actually calling them in various capacities activating hundreds of softwares over the phone for anything from XP to TS.

Similar enough?! by Sloppy · 2009-10-07 01:32 · Score: 2, Interesting

One major consideration in that was the fact that the studio did not have the right, as it did in other agreements, to demand the return of the print.
The Court said that though the issue was complicated, software agreements were similar enough to those film agreements to act as a precedent.

Ha! So that's the "older' precedent? How about this? I walk into a grocery store, anonymously give cash to the cashier and walk out with a loaf of bread without having made any agreement at all, other than "I want the bread, here's some money." Retail software sales use the exact same transaction -- identical in every single way -- to what people have been doing for thousands of years. Thousands. And in all that time, Congress never bothered to pass a law that pulls a switcharoo on us and creates a difference between those transactions.

(Congress has passed some laws that creates some differences between what a person is allowed to do with a loaf of bread, versus a movie or software. But the sale itself, or giving rights to the original seller to demand it back? Nope. Some judges have created some new laws that treat the transactions differently, but Congress has kept out of that, so far.)

--
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.

Re:Finally! I can now own Linux. by Anonymous Coward · 2009-10-07 01:35 · Score: 0

It leads to an interesting problem though. Suppose I sell you a copy of a GPL product and the source code on two separate CDs. You then sell Person B the source code CD and he sells it to person C. Is Person B obliged to provide the source to Person C on request even though he isn't capable for doing this?

I think you mean binary CD there. In which case, yes, Person B is obliged to provide the source code since they are distributing the binaries. If they are distributing the source code CD, then they have no further obligation.

Re:Information wants to be free by hydroponx · 2009-10-07 01:44 · Score: 1

Yes, but is it valid for >30days? From my understanding, if it can't connect to steam for 30days it does some type of de-activation until it can.

Disclaimer: I never bought into steam and have only used it to download a "free" game that came wit a video card years ago

Long time ago by Anonymous Coward · 2009-10-07 02:10 · Score: 0

Slashdot. News for nerds. Six months late.

precedent by shentino · 2009-10-07 02:21 · Score: 1

I hope that the courts, while considering themselves "bound by precedent", do not forget that they are also bound by statute.

If some high muckety muck court decides to be crazy and make a precedent by legislating some outlandish ruling from the bench, what recourse does a lower court have if neither party appeals it high enough for the error to be fixed?

Re:test by Anonymous Coward · 2009-10-07 02:26 · Score: 0

sdfsdfasdf

I find your ideas intriguing and would like to subscribe to your newsletter.

Re:Finally! I can now own Linux. by Dragonslicer · 2009-10-07 02:31 · Score: 1

It leads to an interesting problem though. Suppose I sell you a copy of a GPL product and the source code on two separate CDs. You then sell Person B the binaries CD and he sells it to person C. Is Person B obliged to provide the source to Person C on request even though he isn't capable for doing this?

I assume you meant binaries instead of source code there. I would guess that yes, Person B must provide the source code to Person C. Person B probably could, however, turn around and nail you for failing to follow the terms of the GPL when you didn't provide Person B the source code when you sold the binaries CD. Exactly how a court would handle this situation, especially with regards to Person B not having to pay a huge amount of money for problems that you're responsible for, would be tough to predict.

Re:Information wants to be free by Anonymous Coward · 2009-10-07 04:29 · Score: 0

"you as a paying customer get to be treated like a potential criminal. "

And THIS is why I will continue to pirate from companies who treat me as such.

Here is a link to the actual text of the ruling by Optic7 · 2009-10-07 04:30 · Score: 1

PDF: http://www.eff.org/files/gov.uscourts.vernor.opinion.pdf

Related article at eff.org: http://www.eff.org/files/gov.uscourts.vernor.opinion.pdf

Re:Here is a link to the actual text of the ruling by Optic7 · 2009-10-07 04:31 · Score: 2, Informative

Dangit, second link was supposed to be this: http://www.eff.org/deeplinks/2009/10/it-s-still-duck-court-re-affirms-first-sale-doctri

Re:Information wants to be free by tekrat · 2009-10-07 04:36 · Score: 1

Tsk tsk, are you having a tough day at the office?

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If telephones are outlawed, then only outlaws will have telephones.

Re:Information wants to be free by Maestro485 · 2009-10-07 05:14 · Score: 2, Informative

Now that is one hell of a rant!

Re:Information wants to be free by s73v3r · 2009-10-07 05:30 · Score: 1

If you want to protest the use of Starforce/SecuROM/DRMdeJour, then good luck and more power to you. However, the way to do it is to not buy the game, and then NOT pirate it. Not buying it and then pirating it only serves to reinforce the idea that "teh evil pirates are stealing our softwares!" and that they need to lock it down to protect it.

Re:Information wants to be free by GasparGMSwordsman · 2009-10-07 06:13 · Score: 1

You can't own software, man.
Then you can't sell it or steal it either.

You did it wrong. It should be, "Then you can't sell it or steal it either, man."

Re:Information wants to be free by Anonymous Coward · 2009-10-07 07:05 · Score: 0

Yes. It is.

So it can't be stolen either by Anonymous Coward · 2009-10-07 07:15 · Score: 0

Fair enough.

Only contracts can remove rights by Anonymous Coward · 2009-10-07 07:17 · Score: 0

And then some it cannot remove.

So the EULA, because it only removes rights, MUST be a contract.

It grants no rights you do not already have by the very act of purchasing the software, so there is no grant to use the software from the EULA.

Re:Only contracts can remove rights by Okind · 2009-10-07 23:42 · Score: 1

So the EULA, because it only removes rights, MUST be a contract.
Unfortunately, general terms of business may do the same. For example, they can restrict your options for arbitrage to a court in either their or your home state, as opposed to a court in any state.

Re:Information wants to be free by Anonymous Coward · 2009-10-07 07:35 · Score: 0

I've always wondered how the manufacturer can claim we do not own the software,that we only have a license to use, yet charge us taxes on the "sale". Seems to me if you are paying "sales" taxes, you own it.

Re:Information wants to be free by Anonymous Coward · 2009-10-07 07:41 · Score: 0

No it isn't.
If it hasn't logged on to confirm it is valid within 30 days, it won't run.

Re:Information wants to be free by hairyfeet · 2009-10-07 08:03 · Score: 1

Nice theory, except I ALREADY TRIED THAT with the RIAA and haven't bought a single disc from an RIAA artist (nor have I pirated from them) in a decade. What did we get? "Our sales are down and since our shit don't stink it has to be those filthy piratez! We want even more draconian laws!" which they get. So you see your argument doesn't hold water, because the *.A.As will just trot out some trumped up bullshit piracy numbers and use that as an excuse to get even MORE free money thanks to the taxpayers.

And yeah, 150+ year copyrights is NOTHING but free money from the taxpayers, because it is taxpayers that are having to shell out for movies and music that should have been public domain decades ago. Instead we have congress critters blatantly taking treasonous bribes (BTW did you know there are SIX health care lobbyists for every congress critter ATM? How bad do you think the health care "reform" is gonna screw us with THAT level of bribery going on?) and passing ever more draconian laws.

So steal it, don't steal it, it really doesn't matter as these companies have now been infected with the "too big to fail" mentality. It is the mindset where you are entitled to ever rising profits, no matter the economy or how shitty their product is, and if the don't get those ever rising profits? Well then you are a dirty thief and they'll just bribe the government to take that money from you. So while you idea of protest is nice in theory, in practice it just gives them another bullet point on their PPT they show the congress critters they are bribing about how profits are down so it MUST be pirates. After all their shit never stinks and they are "too big to fail" so it HAS to be anyone other than their own incompetence, didn't you know that?

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ACs don't waste your time replying, your posts are never seen by me.

Yes by ConanG · 2009-10-07 08:34 · Score: 1

I have Half Life 2 on a laptop that I've never connected to Steam since I put it on there. More than a year and a half ago.

just show the bsa the paper work that you paid for by Joe+The+Dragon · 2009-10-07 08:45 · Score: 1

just show the bsa the paper work that you paid for the mac os cd at the apple store.

Re:Information wants to be free by pearl298 · 2009-10-07 09:45 · Score: 1

This is exactly the kind of booby trap that makes "software patents" and "ownership of software" such a minefield!

IMHO this is one of the great "sleeper" issues of th e21st century.

'Ownership" implies a whole raft of things like Real Estate (1000 years ago John the Harvester used to carry his wheelbarrow over this land so his decendets should still be able to!"

"Licensing" gives 100% ownership of EVERYTHING to the "licensor". "You wrote that using MS Word, WE get a free copy ..."

This is not a simple problem and there will not be simple or "nice" answers, but it is probably the most important question of the 21st century!

Alan Greenspan claimed that many of our economic problems are due to IP laws based on a Real Estate model (I own this forever and it is in my interest to build lots of good stuff on the land) rather than a "creative" model like Patents (I own this for a few years, but someone is making something better so I need to stay ahead of them while I can ...)

Re:Information wants to be free by CarpetShark · 2009-10-07 10:33 · Score: 1

I think that was part of his point.

Re:Information wants to be free by icannotthinkofaname · 2009-10-07 10:34 · Score: 1

in practice it just gives them another bullet point on their PPT they show the congress critters they are bribing about how profits are down so it MUST be pirates. After all their shit never stinks and they are "too big to fail" so it HAS to be anyone other than their own incompetence, didn't you know that?

Hmm...good point. It'd be some kind of awesome political miracle of this were to happen:

*RIAA representative presents a Microsoft PowerPoint(tm) (running on Microsoft Windows(tm) XP(tm) Professional(R)) presentation to Congress*
RIAA representative: "...and that's why the software pirates are clearly at fault for our lower profits. It definitely has nothing to do with the worldwide economic crash."

Hypothetical critical congress critter: "That's nice and all, but how do you know that your product doesn't just suck? And how do you know that your locked-down version is worth paying for when it is also available unlocked and de-DRM'd and for free?"

Someone influential really needs to decide to ask that question.

Side-note, because it just occurred to me: Why is purchasing a piece of software, stripping the DRM out of it, and putting that up for download illegal? How is that different from creating a derivative work? Of course, the comparison that I want to make is to L.H.O.O.Q. What's the difference between stripping DRM out of a piece of software and re-painting a modified Mona Lisa?

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Let q be a radix > 1. I am in ur base-q, killing 10 d00ds.

Re:Information wants to be free by Anonymous Coward · 2009-10-07 13:55 · Score: 0

They ALSO said "installing"... didn't mention how the game was obtained.

Re:Information wants to be free by JohnBailey · 2009-10-07 15:27 · Score: 1

You did it wrong. It should be, "Then you can't sell it or steal it either, man."

True. Too late now though.

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It is difficult to get a man to understand something when his job depends on not understanding it.

Re:Information wants to be free by hairyfeet · 2009-10-07 23:38 · Score: 1

because the "artist" in the case of LHOOQ stuck a crazy price tag on his cheap penciled Mona Lisa and called it "art" whereas your putting up a non DRMed work actually helps the public who is getting buttraped? lets face it- with treasonous bribery now legal, pretty much anything that helps the public over a megacorp has got no chance in hell.

I am only glad that my grandfather that survived a wall being dropped on him by the Nazis isn't here to see how far we have fallen. Because I know seeing our "elected officials" routinely selling us out to megacorps and even selling out America to foreign governments for kickbacks would have made him sick. When was the last time you even saw a bill that wasn't dictated by some mega corp and brought before the house/senate by their paid congress lackey?

The really sad part is we have truly lost the country. hell might as well just burn it down for the insurance money at this point. Thanks to the rules being changed (through bribery) that a couple of megacorps can own pretty much all media outlets the MSM is only gonna parrot the talking points that their corporate masters say, your "vote" is limited to corporate shill A or B, hell the Pepsi challenge gave you more choice, and pretty much all we'll be seeing from now on is ever more draconian laws and more power grabs. After all if the people had any say pot would have been legal 20 years ago and Joe Average could walk into Wally World and buy DVD rippers and be able to just have all his movies ripped into an "all in one" set top box so he wouldn't have to hunt for discs or worry about his kids scratching them.

But sadly you just can't compete with legalized bribery, because not only can they offer them big fat checks...err campaign contributions, but also cushy "private sector" jobs for them and their families where they can whore their former colleagues to their new masters. But what can you do? Take a good look around, because it is gonna get nothing but worse. For an example just look at how they have SIX healthcare "lobbyists" for EVERY SINGLE member of congress right now, thanks to the prospect of screwing the people over healthcare "reform". The odds that it will be nothing but a giant check to the drug and insurance companies paid for by the American people? About 100%. The fact that they are trying to royally screw us out of first sale shouldn't be a surprise, as they are trying and succeeding to screw us over everywhere else, so why not first sale too?

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ACs don't waste your time replying, your posts are never seen by me.

Re:Information wants to be free by icannotthinkofaname · 2009-10-08 09:06 · Score: 1

I see. I feel similarly. The government is too influenced by corporate lobbyists who exist only to draw as much money as possible from as many wallets as possible. This sort of corruption is bred by the "deadly sin" (as some call it) of Avarice. Yes, in this case, it must be "Avarice", with a capital A. It is a special kind of greed above and beyond any seen anywhere else. It is a greed that results in the destruction of human life, both young (abortion) and old (proposed health care reform).

We can soapbox all we want about this on /., we would love to use the ballot box effectively, if only there were such a way, and I'm not even sure how the jury box is doing. When does the time come to open and use the last box to be used in defense of liberty? Why is the ammo box still off limits? I see no better ideas on how to better our standard of living.

because the "artist" in the case of LHOOQ stuck a crazy price tag on his cheap penciled Mona Lisa and called it "art" whereas your putting up a non DRMed work actually helps the public who is getting buttraped?

So, no difference in the end result, just a difference in how much money it brings in? Yes, when our laws discriminate based on what brings in more money, we are in some deep, deep trouble.

The economy won't bounce back at this rate. It won't bounce back ever until something changes to put more money back in the hands of common citizens. And that has to happen by lowering company profits and the highest salaries, while raising salaries of lower workers. It's a zero-sum game inside a closed system, and I believe that the only way out is a change that goes something like this.

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Let q be a radix > 1. I am in ur base-q, killing 10 d00ds.

Re:Information wants to be free by hairyfeet · 2009-10-08 09:56 · Score: 1

Allow me to tell you how the jury box is doing, and to quote an old joke from an old movie "it'll scare you white!" My mom always taught us to be civic minded, and so when she was called for jury duty a few years back she took her vacation time so she could do her duty. The last day she came in just as white as a ghost. When i asked her what was wrong she said 'if you EVER get in trouble NEVER EVER have a jury! Demand a judge! When I asked her why here is what she told me-

The case was an arson case against this old Italian guy that owned a little Italian restaurant. The fire investigator got on the stand and admitted they had no evidence of arson, hell he couldn't even be sure WHAT caused the fire. The cops also admitted that the guy didn't even have enough insurance on the place to pay off what he owed, and that he had filed for bankruptcy. Want to guess what the jury ended up? Can you say 11 to 1 with my mom the ONLY one in favor of acquittal? The reason? "because Italian people are in the mob and do this sort of thing. haven't you seen Goodfellas?"

So with the ballot box totally broken beyond repair, juries believing real life is like a De Niro flick, yeah I'd say we're pretty much boned pal. Sadly I figure we'll get a Weimar Republic style collapse, where the greed and corruption just causes the whole damned rotten mess to fall like a house of cards, and then either we'll do a Soviet style breakup or end up with our very own Nationalist Fascist "el presidente". As you so elegantly pointed out it doesn't even matter to these treasonous congressmen if their actions kill their own people, as long as they can keep stuffing theirs and their corporate masters pockets.

I think this is why you almost never see a democracy lasting for more than a couple of hundred years, as eventually the concentration of money and power becomes a self feeding engine of corruption and you get generational power brokers (see the Kennedy and Bush clans) who simply exist to feed and pass on power to the next. As for when it is time to break out that last box? Lets just say if the French would have had the F16 before the revolution they would still have kings ruling there now. It is kinda hard to fight an M1 with a shotgun.

That is why the push to unmanned vehicles frankly scares the living hell out of me. After all a robot won't have a problem firing on its own citizens, whereas most of those I have known in the military are honorable and still believe in the Constitution enough to risk paying the ultimate price for it. When they don't even bother hiding the kickbacks anymore (like now) you can pretty much figure they don't have anything to fear anymore from the public. Pretty much we all we can do now is be like Nero and watch it burn. Sad but unfortunately all too true.

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ACs don't waste your time replying, your posts are never seen by me.

Re:Information wants to be free by icannotthinkofaname · 2009-10-08 10:34 · Score: 1

tl;dr version: jury box as ineffective as the first two; ammo box time now.

I do hope someone finds a good way to organize it and pull it off.

The way I like to put it: "Bill Gates' bank account is so huge because yours used to be." Executives who deliberately take money out of the system like that are destroying the system. As long as it isn't actively circulating, it might as well not exist in our system at all.

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Let q be a radix > 1. I am in ur base-q, killing 10 d00ds.

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Court Rules For Software Ownership Over Licensing

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