Slashdot Mirror
Court Rules For Software Ownership Over Licensing
valderost writes "Out-law.com reports on a finding of the US District Court for the Western District of Washington, in favor of an individual reselling Autodesk's AutoCAD software in 'his claim that he owned the software and had the right to sell it on.' The decision hinges on some technicalities in the Autodesk license and conflicting precedents involving a Vanessa Redgrave film, but it's good news for the idea that a software purchase is just that. '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. "The court's decision today is not based on any policy judgment. Congress is both constitutionally and institutionally suited to render judgments on policy; courts generally are not," the Court ruled. "Precedent binds the court regardless of whether it would be good policy to ignore it."'"
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?
Sweet! Now maybe we can affirm that we actually own things we purchase, and companies like Nintendo will stop stuffing up things like homebrew.
"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!
zosxavius photography
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
Unless its Leenux - then you better follow that gnu/license you software pirate!
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.
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.
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?
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.
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
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.
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
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.
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? $0.01? Or just give it away?
Colorless green Cthulhu waits dreaming furiously.
There is a difference between a distribution license and a software license.
Gpl, Lgpl, and the like are the former. The right of first sale applies to the latter.
You can already resell linux distros with no issue anyway, and you do own the software when you get it (either via download or by purchasing a disk).
There's no Eula on linux....
... that he didn't use the software himself, and therefore was not bound by the shrink-wrap license? He purchased them for resale only.
Finally had enough. Come see us over at https://soylentnews.org/
The version on TPB works just fine.
Copyright is granted under the IP clause of the Constitution, and its regulation given to Congress.
This is the policy interest to which the court referred, i.e. Congress may step in and legislate that although copyright creates a divisible property interest which may be sold in part or whole, to other parties, the sale of a copy of software is, as a matter of law a (license or transfer of property right over that copy)
All the court is saying is that the jurisprudence says that AutoDesk's own license says that the sale of a copy is a property transfer, on that particular copy, but that if Congress wants a different policy, it is free to change the Copyright Act.
And you just hit the nail right on the head with that simple statement, bravo. All this bullshit does is make the pirated version in EVERY WAY better than the "legitimate" version. Take my case for example, I have to fricking crack every. damned. single. game. I own. Why? Because XP X64 (my OS of choice) plays all the games, even the older ones beautifully while giving me access to my 8Gb of RAM but the ^&%$&^&$^&%$ 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.
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.
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.
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
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.
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.
Search 2010 Gen Con events
Now that is one hell of a rant!