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Court Says First Sale Doctrine Doesn't Apply To Licensed Software
An anonymous reader wrote to tell us a federal appeals court ruled today that the first sale doctrine is "unavailable to those who are only licensed to use their copies of copyrighted works." This reverses a 2008 decision from the Autodesk case, in which a man was selling used copies of AutoCAD that were not currently installed on any computers. Autodesk objected to the sales because their license agreement did not permit the transfer of ownership. Today's ruling (PDF) upholds Autodesk's claims: "We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions. Applying our holding to Autodesk’s [software license agreement], we conclude that CTA was a licensee rather than an owner of copies of Release 14 and thus was not entitled to invoke the first sale doctrine or the essential step defense. "
This is going to mean bad things for all the rest of us.
Wait...what? Seriously?
Many industries have been trying for literally decades to prevent used or second-hand sales...but parts of the software industry are the ones to actually do it? Huzzah. That's so awesome. Thanks for fucking us over once again. Guess what people will do when they can't buy a used copy and don't have money for a new copy?
Yaargh.
Living With a Nerd
This is a ruling that is going to spur a lot of changes to software vendors.
*everybody* will end up being "a licensee" of the software, and you will no longer own anything.
And yes, this will extend to FOSS as well... licensing through copyright is still licensing....
Do these judges even understand the enormity of their decisions?
Support FSF: Stop thinking with your wallet, and think with your imagination. (cc/non-commercial)
This was a decision by the 9th Circuit Court of Appeal, specifically. With any luck whatsoever, this unacceptable ruling will be overturned by the Supreme Court. The 9th Circuit is apparently the most overturned court in the country, so hopefully this won't stand for long.
That Anonymous Coward guy is pretty annoying. Can we have the government censor him or something?
Whatever happened to copyright as it was originally made that copyright was a compromise between consumers and producers. In exchange for giving up the right to use materials how we wished we gained a few key rights among them were limited copyrights, fair use and the first sale doctrine.
Now, while producers now have more power, consumers have less. We no longer have limited copyright, fair use is being systematically eliminated and now the first sale doctrine is being challenged.
A free market works on balance on both sides of the scale, producers and consumers both have rights. A producer has some rights to screw customers but customers have rights to balance that out by being able to screw producers in numerous ways. But that balance is being broken with copyright.
Taxation is legalized theft, no more, no less.
You buy something (and you *are* buying it, because the "agreement" isn't presented before the sale.)
You try to install it, and disagree with the EULA, so press "I disagree", and the software doesn't get installed.
You then sell it to try to recoup some of your lost money.
But you can't, because the *agreement*, which you did not agree to says you can't.
The USA is officially the most fucked country on earth.
Court Says First Sale Doctrine Doesn't Apply To Licensed Software
No, that's not what the Court said. Here's a more accurate sound bite:
the first sale doctrine is "unavailable to those who are only licensed to use their copies of copyrighted works."
What the Court is saying is that *if you agree* to a licence that prohibits you from reselling the software, than you can't resell it. It's a licencing issue, not an ownership issue.
What to learn from this? Don't agree to this sort of licence. Build software in-house (or have built for you), or use Open Source. This sort of licence will start to fade as more and more Open Source projects attain "enterprise quality". Tell these software houses that still use this sort of licence to hit the road.
If you want news from today, you have to come back tomorrow.
It would be good once and for all to find out whether or not EULAs (especially ones that do not appear until after the software is open) are enforceable. I would prefer all contracts require written signatures, as well as modifications of such, so that companies can not arbitrarily change clauses willy-nilly even if the contract has wording to allow such. (Think cell phone contracts, I never signed anything). First sale should be first sale, period. On the other hand, I am afraid as to what the Supreme Court would rule in such a decision.
Rhymes that keep their secrets will unfold behind the clouds.There upon the rainbow is the answer to a neverending story
can just supply a single user license to any product and there goes the second hand market. THats fine but you'd better drop the price of your item by 50%.
by TheSpoom (715771) Uncaring Linux user here. I have nothing to add to this but please continue. *munches popcorn*
It will be interesting to see how this plays out. If this ruling holds, the used video game market is on its last legs.
Makes you wonder if the software vendors have any grasp on the idea that the license having some value as a second-hand sale item is what allows them to charge such exorbitant rates in the first place.
Starting tomorrow, every movie release will come with an EULA.
Well, games are a type of software, right? I'm not familiar with the exact licensing language used, but would this decision potentially make reselling video games illegal as well?
If we are just a licensee, then that means they can't sue for intelectual property theft. It went from 'breaking and entering' charges to 'trespassing'.
Unless you like living as a Serf of the Corporations who aren't even MENTIONED in the US Constitution, it's time to consider revolution.
-- Tigger warning: This post may contain tiggers! --
That really, truly, SUCKS!!
No sigs in BETA. Beta SUCKS.
TPB
One more reason not to pay ANYTHING for proprietary software or content..
It is worth nothing when you need to resell it, why should you pay more than nothing for it in the first place?
in the coffin for purchased non-FOSS software.
If a copyright holder can retroactively take back some of the rights they sold you by springing a one-sided un-agreed-to contract on you after the fact, what's to stop music, video, or book vendors from putting a EULA in their own works? Ironically, that's exactly what Bobbs-Merrill did in the original "first-sale doctrine" court case, and that was actually less unethical since at their books didn't hide the unilateral rules under a layer of shrinkwrap. Too bad for them that judges were smarter back then...
Stop buying licensed software, right? Let the market correct on its own... /wishes I was serious
...unavailable to those who are only licensed to use their copies of copyrighted works.
Doesn't this apply to more than just software? Do you own your book or are you merely licensed to use it?
Since persons under the age of 18 cannot enter a legally binding contract, just have your kids buy and install your software for you. Problem solved.
reselling an Apple computer is now illegal in Ca?
"The Software & Information Industry Association, whose members include Google, Adobe, McAfee, Oracle and dozens of others, urged the court to rule as it did."
I understand Google is part of the SIIA, but did they make a statement about this specific issue?
The Kruger Dunning explains most post on
Where are the people whining about activist judges now? Oh, that's right, activist judges are OK if they're right-wingers.
Now we should all file class action lawsuits against retailers (including Microsft too) for calling it "Sale" at their stores for software when they actually meant "License".
We must repeat over and over that copyrights and patents must be abolished.
It works for the fashion industry and that industry is much bigger than software in total sales.
It must be done.
You can't handle the truth.
Name any other contract that one party can't even look at before money changes hands. Obligatory Car Analogy: You hop into your new SUX-2000, turn the key, and are notified that before the engine will start you have to agree to to have your car serviced exclusively by SUX dealerships. And they never mentioned this during the purchase process. How could that possibly be legally binding?
Never let a lack of data get in the way of a good rant.
... Short of signing over constitutionally protected rights, anything goes ...
Not quite. Judges often consider reasonableness, public interest and the relative sophistication of both parties. When one party is a company with a legal team and the other party is Joe Consumer judges often lean towards protecting the little guy when the deal is an un-negotiated take-it-or-leave it one.
The issue here is whether licensing software is reasonable or not. Software is kind of service-like, free patches and updates are often offered. You don't get patches/updates for paper books or audio CDs. I don't think this topic is a clear as many people claim.
... be willing to offer a complete refund on any opened software if a person doesn't agree to the license?
File under 'M' for 'Manic ranting'
In Canada software has always been viewed as a license. So are movies and music.
The law does not allow companies to place restriction on the lending, or selling of a license. Please note I said companies, governments for obvious reasons do not allow this for things such as driver's licenses.
This law is the basis for why downloading a file from a P2P network, or other source is not illegal. The license is for using the material, so you have not committed a crime until you use the material without a license.
For example, if I have All My Loving on a Beatles record and I download the MP3 and listen to it, that is perfectly legal. If I downloaded and listened to Poker Face which I don't have a license to, that would be illegal.
Microsoft, Apple, Google, Amazon what's the difference? All steal money from devs and control with walled gardens.
If they are going to disallow sale of licensed software, then unlicensed software (read: pirated) can easily have more value to a user than the licensed work.
I'm not saying that the increase piracy is justified, but it's an inevitable result.
File under 'M' for 'Manic ranting'
So how long until books come with license agreements to impose the same restrictions?
This is where free markets are useful. We all now have the opportunity to create and sell software with a transferrable license which, from the responses on this thread, should be more desirable than the existing vendor’s wares.
Seriously, I can't think of one significant thing that the feds have done right since around 1970. Every single year, America just slides closer and closer to corporate totalitarianism.
This should create a huge demand for Open Source software....
Okay, I hesitate to weigh in here, because this isn't going to be a popular question, but did anyone read the opinion? This is, factually, a rotten case for first sale. CTA bought the software and agreed to the EULA which specifically required that they destroy Release 14 in order to get upgrade pricing on Release 15. They paid $495 per license for R 15 instead of the normal $3,750 they would have paid specifically BECAUSE they were required to destroy R 14. Instead they decided to say screw it and they sold their old R 14 copies on the secondary market with the activation codes handwritten on the package. Vernor bought the copies, knowing about the EULA, and then resold them and claimed protection from the first sale doctrine.
Now I'm as gung ho as the next guy about appropriate limitations on copyright (maybe not the next guy here on /., but the average next guy); and in particular I think first sale, like fair use, is an incredibly important protection that's been getting the shaft in the courts lately. But in this particular context -- the upgrade context where the company that poured its dollars into writing better and stronger code is trying to cut its customers a break -- it's going to be a pretty hard sell. Vernor screwed himself here, and unfortunately I suspect he took a lot of other people with him.
"The true administration of justice is the firmest pillar of good government." - George Washington
so a store does not own the software boxes / moives / music in the store so they have to right to press charges for shoplifting?
Oh yes....now the pirates in the far east will REALLY be trembling. I'm sure this extra protection will make people think twice about copying their software....
And decide they don't like the EULA and return it.
Processing a few 10s of thousands of returns might make them think differently about this...
Awesome furniture, accessories and cabinetry in Santa Rosa, CA: http://humanity-home.com/
I am not violating the DMCA if I tear something I own apart but what if it is only licensed to me. The force behind the disassembly clauses was that I owned something. This harks back to the old IBM days where you only rented the machine and did not own it....
Seriously, all of you? What were you expecting?
This community is all about FOSS, and cheers on the enforcement of the GPL through law, and determining whether or not it's legally valid. The last time I checked, GPL stood for "General Public License." If it's to C or Assembly, or machine code, this ruling only ensures that GPL has a legal precedent to fall back upon.
The proper owners of software are the owners of the copyright. It's the copyright that allows click through EULAs to exist, just as much as it's the thing that allows the GPL to exist. It seems like it's common sense that AutoCAD would control the rights of sale of that software, it's their software to sell. The company that sold the copies to eBay guy are the ones that faulted on their agreement. They should be pinned up and made an example of.
I wouldn't whine and complain about first sale here. It's enforcement of a license, which to me, is a good thing.
You need to restart your computer. Hold down the Power button for several seconds or press the Restart button.
You are paying for the service of using the software.
So what if the vendor doesn't have to actually do anything, that's not the point.
Think of it as a hosted app except you are doing the hosting.
Of course the flip side is that you should be able to get your money back if the service is not satisfactory.
The problem with this is that the opposite result would in this case seemingly prevent the sale of upgrades. This would also be problematic for society. What the plaintiff was selling (in some cases) was software that had been upgraded Autodesk's customer. The agreement on buying the upgrade was to not use the orginal software, but instead of destroying it, they re-sold it.
Unfortunately, the judges appear to have now made law that "it is a license, not a sale if we [the vendor] say so". That is clearly a bad outcome for consumers.
The real "Libtards" are the Libertarians!
They just got it both ways! Not only is the software copyrighted, it's licensed as well. That two times the protection.
Now, if people and businesses were to wake up to the fact that the expensive stuff they buy has NO RESALE VALUE, they just might learn to be more cautious about how they spend their money. It is the fact that diamonds have nearly no resale value that convinced me that it is foolish to buy them.
But then again, the current price of a new car shows how willing people are to waste their money.
I like how the tag says Obama, when Obama hasn't appointed one justice to this court. W. put 7 of them on there... He's nominated a few, but the Republicans won't put them up for that "up or down vote" they were so worried about during W.'s term.
the fashion industry is not bigger then software.
Even if it was, and that is somehow an actually relevant argument instead of a logical fallacy, The pharmaceutical industry makes far more, and they have Patents, copyrights, and trademarks.
most profitable companies:
http://money.cnn.com/magazines/fortune/fortune500/performers/companies/profits/index.html
I don't see any fashion companies.
And here are industries:
http://money.cnn.com/magazines/fortune/fortune500/performers/industries/return_on_revenues/index.html
hmm. not there either.
Interesting.
The Kruger Dunning explains most post on
CONTRACTS DO NOT WORK THAT WAY!
Contracts aren't something you can trick someone in to, they aren't something you can say "By nodding your head in that way you agree to all this stuff." In general, a contract must have few things that an EULA fails at:
1) A contract must be an exchange. Contracts can't be one sided, they have to be an exchange. That's why if you do something like a quit claim deed (meaning you helped someone buy property and are now letting them have it) it'll say something like "For the sum of ten dollars and other valuable consideration I quit all claim," and so on. Even when the intent is to give something over, there MUST be an exchange for it to be a contract. An EULA just acts to tell you what you can't do.
2) A contract has to be prior to the exchange or sale. This is why you sign all the paperwork related to a home purchase before it is yours. That contract is only binding if you sign it before things happen. They can't sell you something and then say "Oh by the way, here's the contract." Sorry, too late. Same deal with prenuptial agreements. They are "pre" the nuptial for that exact reason. You can't tack on terms after something is done, has to happen before hand.
3) A contract must be open to negotiation. You don't have to accept what the other side proposes, of course, but you have to be open and available for it. You can't hand over a contract and then vanish. When my university signs a contract with MS or someone for a Software Assurance pack, there is negotiation. They send us the contract, our lawyers change it and send it back, they change it and send it back and so on. That has to be there, that opportunity. A contract cannot be a one sided demand, both sides have to discuss and mutually agree.
None of this is new or special, this is how contracts work, this is why things are done as they are. For some reason though some people, including the 9th circuit, seem to be ignoring that for software and saying "Sure it is perfectly ok to put a bunch of requirements on shit ex post facto, never mind that we'd never allow that for other situations."
I do not get this logic (or rather lack of logic).
So if I don't have to sign a license agreement when I purchase the software, I'm good as far as resale goes.
One thing here: the Autodesk case involved software bought directly from the vendor, where the buyer signed a contract before paying and receiving the software. In a store there's no signed contract, in which case the Uniform Commercial Code comes into play (it wouldn't in the Autodesk case). And one thing the UCC makes clear: if there's no explicit agreement prior to the buyer forking over his money and the seller handing them the box, then the terms of sale are defined by the UCC and not the seller. And one thing the UCC says is that it is a sale, not a license.
The trick is to avoid getting caught up in copyright until you've settled the issue of whether it's a sale or not. You have to decide that first, because what your rights are under copyright depend on that.
Not quite. Judges often consider reasonableness, public interest and the relative sophistication of both parties. When one party is a company with a legal team and the other party is Joe Consumer judges often lean towards protecting the little guy when the deal is an un-negotiated take-it-or-leave it one.
Except in this case. This ruling by judges is in direct opposition to protecting the little guy. They have ruled that an EULA is enforceable on someone that never even agreed to the EULA.
Suppose you buy an expensive piece of industrial equipment. Once you get it home, you open the box and an EULA falls out. It says you didn't buy the device, you licensed the ability to use it. It says you may not sell the device, or return it for a refund, it is yours now once and for all time. Further, you agree that you can't sue for any injury that happens, even if such an injury is a result of a defect in manufacturing.
How would that be any different? How would that be at all legal, based on existing contract law?
Libraries are now required to predict, in advance, which video games and other licensed media will be culturally significant in the future.
If they fail to buy a copy of a product while it is on store shelves, there is now no legal way for them to preserve it for posterity, since the people who did buy it are not allowed to transfer ownership.
Ah well, back to reading the works of authors like Shakespeare who were somehow inspired to expend massive effort on creating amazing intellectual works despite the lack of any effective copyright protection whatsoever. (Still waiting for you to explain that, copyright lobby ...)
Well, actually, the physical objects aren't covered under the EULA. Technically you buy those and the license "document" on the media. If you don't accept the EULA you don't have rights/permission to utilize the bits on the media. You basically own a box, a Frisbee, and a digitized license. Presumably, the license is what is worth the sticker price and the box/media are thrown in for "free". Accept it or not, that is what they are selling to you. You don't have to install it to be the proud owner of a license you will never utilize.
There's a much more accurate parallel here than licensed software. Open up any paperback book to the publication page. On it you'll find text similar to this (found in my copy of "The Pelican Brief"):
If you purchased this book without a cover you should be aware that this book is stolen properly. It was reported as "unsold and destroyed" to the publisher and neither the author nor the publisher has received any payment for this "stripped book"
The guys at AutoDesk said "you don't need to ship that back to us, just destroy it" regarding the old versions R14. They did this to save money and allow cheaper upgrade pricing. After shaking hands on that deal those R14 disks, if sold, seem to me more analogous to stolen property than previously licensed editions.
Try taking software back to a store. Say you didn't like the license and want a refund. They'll tell you "No refunds on opened software, exchanges only." Of course you can fight that but it takes time and money.
Books and audio CDs aren't routinely shipped with known defects that affect the product, and their publishers don't have a "Ship it now, we'll patch it later" attitude.
No wonder. No other court is filled with more ignorant and corrupt judges.
When Fascism comes to America, it will call itself Anti-Fascism, and tell you to give up your guns.
Not quite. Judges often consider reasonableness, public interest and the relative sophistication of both parties. When one party is a company with a legal team and the other party is Joe Consumer judges often lean towards protecting the little guy when the deal is an un-negotiated take-it-or-leave it one.
Except in this case. This ruling by judges is in direct opposition to protecting the little guy. They have ruled that an EULA is enforceable on someone that never even agreed to the EULA.
That's an opinion not a fact. Again, given that the software in question works more as an ongoing service (patches, etc) rather than a single interaction (a game cartridge?) its not unreasonable to accept the licensing idea. Given the licensing model ignorance of the EULA would not entitle a user to violate the EULA. Take a look at things from a FOSS perspective. If a user is ignorant of the GPL and never agreed to the GPL, does that mean they can violate the GPL?
Interesting, a world where the only thing you own are the things that you actually create. That's at least one step closer to a world without private property entirely, though I'm not getting my hopes up.
Books and audio CDs aren't routinely shipped with known defects that affect the product, and their publishers don't have a "Ship it now, we'll patch it later" attitude.
Just this week I found an error in my old statistics textbook, a number was incorrectly rounded. I once had a class where we used the first printing of our professor's textbook. Extra credit was awarded to anyone finding errors and many people earned extra credit. A friend who uses books on tape during commutes has mentioned finding various errors.
Also some software never gets patched, perhaps a game cartridge with code burned into ROM. So patching is not a given and perhaps this ongoing service tips the scales in terms of the licensing model rather than the sales model. If we were talking about a un-patchable game cartridge then perhaps the sales model would be the better fit.
It is draconian measures like that that made me decide to move to Linux and ditch Windows. The fact that people cannot still easily make a personal backup of a CD / game / software they buy in case the original gets damaged is just a ploy to get people to re-buy the same thing again. Not only is it a waste of money, it is poor customer service. This goes back to the same issue at the heart of Sony's removal of the "Other OS" from the PS3 -- if you pay for software or hardware, who is the actual owner of the physical media or hardware? Most of the rulings I am seeing recently seem to make me think it is with the companies and we are just "renting" the equipment. It also makes me wonder if we don't actually own it, why do we still pay the full price for hardware / software?
No surprise, that's how it's always been. If you enter into a special agreement the normal implied contract of sale doesn't apply.
But buying software at a store does not enter into a licensing agreement. They call it a sale, the consumer thinks it's a sale, it's a sale. For that, the doctrine would still apply.
Wouldn't need patches if they coded it properly before taking your money.
Instead they charge you to be a beta tester.
I've got to hand it to the supreme court, because they've managed to do two things that are both legally good and bad at the same time (from 'our' /. perspective). First of all they've upheld what they know, that is, the assignability (assignation?) of a contract or licence. Admittedly contracts and licences are not the same from a legal perspective (the phenomena of agreement has a few more formal common law hurdles to cross), but the goal is simple: protect a very real asset.
What asset? In law there are a few types of contract. The most obvious is a standard A <-> B agreement, the next is a less standard A <-> B (personally), and the one a lot of people gloss over is A <-> X (where X is anyone). The latter is unilateral, where the formers are standard contracts where the ability to assign differs depending on terms of the agreement. The assignment of a promise is so core to IP, Property and Contract law that without it, our world would crumble (they figure on corporate balance sheets). Take for example, the case of a landlord renting a spacious flat with several rooms to a vetted tenant. If that tenant was given the ability to assign his lease to another tenant of lesser stature, what kind of protection would the landlord have? The worst case scenario is a poor tenant who creates several illegal sublets and uses the property as a crack den. The best case is a more an affluent/big earner type who pays their bills on time and gets on with all the neighbours.
For as long as contract has existed the ability to protect the intent of the contract has reigned supreme, therefore that means protecting the interests of people who set the terms and those who agree to the terms. Allowing landlords to block assignment protects a landlord and their interests in *their* property (sublets are legally problematic - more layers of enforcement to get rent, no privity etc - and crack dens reduce the value of property). Hence the ability to restrict the assignability is an asset to a landlord but a balance sheet liability to tenant (a buyer of a commercial tenant will have to purchase the remaining liability of any leases out-right because no seller would sell a business any retain property liability unless they got a massive capital gain).
So... legally speaking protecting a licensor's interests in a licence agreement, specifically the ability to assign, is a big ideal. However, what is happening in software is not an A B licence, because A purchases B's software from C's shelf. This, but definition, is a carbolic smoke ball: it is unilateral A X licence, where X is anyone in possession (I am glossing over the agency/distribution perspective massively). Unilateral contracts don't gel with the ability to restrict a licensee because there is no requirement of individual assent in a unilateral agreement (in other words because B, where A is the author of some software, didn't have to sign anything, why should B be liable on a personal basis when A made the offer to the class of B - iow, any potential buyer). What I believe we have is a limited personal licence: A <-- licences --> B (personally). Any by personally I mean the first purchaser bares the burden of the licence, nobody else. When they sell the copyrighted protect, ie: the program/code, the initial purchaser does not reassign the licence. Therefore a purchaser of B's copy is not restricted by the same terms as B was - this is the principle behind first sale (US)/exhaustion of rights (EU).
(nb: i've drunk far too much tonight for this to make any sense tomorrow)
Matt
What is the fundamental difference between selling software that you purchased and selling several copies of it that you make? I think we all agree that the latter case definitely should not be allowed without the owner's consent as you are selling someone else's intellectual property for your own monetary gain.
But what about the former case where you essentially sell one copy and stop using (even retaining) your copy? If you are able to get near full price for your secondary sale, which you often can with software, then you have essentially used the original owner's product for free for some period of time. Worse, this process can continue ad infinitum -- many people can derive whatever value they need from this product (e.g. - think video games with limited replay value) and then pass it along to the next person who wants it and (nearly) recoup whatever their monetary investment was.
Many people derive the benefit they want from the product for a tiny, often zero, fraction of the price the original purveyor intended for a single person to pay to derive that benefit. That and the fact that software doesn't depreciate similarly to most physical items are the essential problems here. If the purveyor had intended to sell you a transferable license that might get passed on to many people, then you can damn sure bet they would charge a significantly higher price for it initially. Similarly, if the purveyor had intended to sell you a license that would let you sell as many copies of the software as you wanted (i.e. - be a distributor), then they would price it very differently (i.e. - one huge license price, or a per license sold revenue sharing agreement).
Secondary sales of licensed software that transfer the product against the wishes of the intellectual property owner essentially steal from them because the original price point they chose was based on the (legally justified) assumption that only one person would derive the expected benefit from the product. The secondary sale breaks the license agreement and violates the original pricing assumption of the original purveyor.
That's the other part, yes: As far as the store is concerned, it has bought a bunch of boxes, added a margin and sold them on, just as if they were (expensive) boxes of cereal. There are no EULAs involved with the transaction the store had with the distributor or manufacturer of those software boxes.
So at some point it is a copyrighted work being distributed, and you should be able to sell that copy which you bought much like you can sell a book you have read. Except the software vendor now claims the money you paid were for a license. in which case: Doesn't that reduce the value of the box on the shelf to $markup?
Known defects I don't know, but unknown defects, for sure. Look at how many error-correcting printings the 3rd edition of Stroustrup's C++ book has gone through.
First I'm amazed that someone took on Autodesk over this. Second, this is "natural" given the overall current court perspective that basically says that EULAs are enforceable. This would be more or less OK if you could return the software if you didn't agree on the EULA. I don't know if this is the case with Autocad.
In this case, unfortunately Autocad has relatively few competitors (try CATIA), costs an arm and a leg, and have been around forever. There is not going to be a FOSS equivalent for a while yet.
Patches and updates are what the publisher/developer has to do in order not to have to cough up the retail price for every unit sold due to the software being defective.
ill just make ISOs of the CD with the product key and start seeding some bittorrent files.
Politics is Treachery, Religion is Brainwashing
What is the difference between a sale and a license? I think applying a license to most cases where the seller has little or no ability to revoke usage results in absurdities. The seller must at minimum be reasonably able to detect most abuses to be able to take it to the courts. If the seller has no control, it has forfeited ownership.
Also, when I write some code for a client, they own that code. That's in the contract. If you want to own some software and have the right to sell or license that software, you might want to consider having someone write it for you.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
Exactly, so you and your friends go take as much as you can carry.
Which store are you going to? What time?
Wouldn't this also make selling phones and other devices with an EULA'd OS illegal? I suppose you could just wipe the OS, but it seems like an unnecessary step.
Being too consistent only supports the idea that you arent important.
america, where you cant even buy things you think you could, with money.
Read radical news here
Now this is change you can believe in, elections matter, liberals pretend to be for the people, but are the companies. ;-(
I'm failing to see how software and books differ in this case. How does paying for a book entitle you to ownership, but paying for software does not?
Higher Logics: where programming meets science.
How is the U.S.A. not becoming a Socialist state with these asinine changes to our laws of "ownership" with respect to goods?
We're no longer allowed to "own" software. We're just permitted a license to use it by the "government" (corporations).
There is an easy solution to software license bulls$%t.
Just get an 8 year old to install Autocad and agree to the crap EULA.
I know Windows doesn't make you agree to the license every time you turn on your PC. I guess Autocad doesn't make you agree to the license every time it starts.
So you just say an 8 year old agreed to the EULA, not me.
I am just flabbergasted by this.
Sure I'll agree that CTA and Vernor both were in the wrong since they knowingly did this crap... hell thats a shitty thing to do whether its in the ELUA or not anyways... but this ruling is absurd in its ability to be exploited beyond comprehension well past the context of this case...
I find the ELUA to be beyond the scope of the layperson to understand and as such I don't believe I am bound by it. (I don't care if a hundred+ years of civil law say I am wrong). Ef-M
6.8SPC TR of 550, l xwind at 6, drift rt at 26" drops 77". AT has 503 ft-lbs at 1403 fps. FT 0.86
It's called a lease. Or a rental.
And guess what? They can't just put a sticker over the keyhole that says by breaking it, what you thought was a purchase (with paperwork to back it up) is actually a rental.
They actually have to get you to voluntarily enter into a different kind of agreement, up front.
Me: I would like to buy this book
Merchant: Oh, I can't sell you that book, but I will sell you the labor of me placing it in this bag for you for $9.99
Me: Sold.
Me: Oh look, windows 95 on Ebay for only five cents.
Ebay account: This software is not for sale. You are purchasing my time to package and send it to you.
Me: Sold...Oh, I would never but that, not on a bet.
Am I the only one who "buys" coupons on Ebay? You never purchase the coupons themselves, you purchase the time and effort (labor) of the person sending them to you.
Now all the Fortune 500 companies need to pay licensing fees to MS, Oracle, SAP, IBM, Apple, AutoDesk for all the software that was ever transferred during mergers and acquisitions.
The software companies just earned billions and billions of dollars on this ruling.
#idiots
If you cannot own it, then you cannot steal it. ie, its not real theft is it.
Liberty freedom are no1, not dicks in suits.
1. the buyer becomes a recycler of rubbish.
2. the seller pays the buyer to dispose of some toxic rubbish for a fee, how its done is invisible.
3. the transaction for 'rubbish disposal' is done.
4. the seller is happy the trash is gone.
5. the buyer creatively and secretly recycles it in his own way - by 'using it'
The whole operation is a 'service' not a goods sale.
Liberty freedom are no1, not dicks in suits.
High end software packages often charge a separate fee for a support contract. If you don't sign up for the support contract you don't get any patches. So it is not only game cartridges. Software is not a service and patches do not alter that fact.
Quite an experience to live in fear, isn't it? That's what it is to be a slave.
with an OS or anything else on it that's licensed as not for resale.
thank God the internet isn't a human right.
Democrats' positions on copyright, ACTA, DMCA, etc demonstrates that the lesser of two evils is still evil. I just want to get the hell out of the shitty country.
Seriously, they bitch about piracy then try to get laws passed that is only going to make people accept piracy over the lame ass rules you get when you pay.
I'm not a big history buff, but I enjoy history. Why? Probably because sometime I heard those who ignore history are doomed to repeat it.
But also because I realized that humans are stupid, greedy, and only care about themselves.
Which is why we don't ever change.
Sure there is expections, as there always is, but unless we either figure a way to keep our basic natures in check, we will never succeed.
Be seeing you...
The states is like some Willaim Gibson novel. The rule of the corporation defines the real landscape of deep law and the individual has very limited rights. Sucks.
The book could just as easily be:
(1) printed in an OCR font.
(2) a picture book, where each picture was a dot-splash computer readable input grid.
(3) a series of tear-out punch cards.
(4) a stack of punch cards.
In point of fact the fundamental problem here is that the participants are pretending that the delivery method of the information makes the information a wholly new thing.
In the case of the DVD, the book just happens to be round and most easily readable by computer.
Selling me the book, then trying to control my use of the contents thereof is stupid, but its a stupidity I can see that many people who have been conditioned to think that computers are magic, may not be able to see.
We may have to wait till today's kids are on the bench for most of this stuff to be undone as bad rulings.
Innocent people shouldn't be forced to pay for inferior software development.
--"Code Complete" Microsoft Press
FOSS depends on copyright, and the General Public LICENSE (GPL etc) already depends on this.
There is no "oh, crap" about this at all.
This isn't actually bad law per se as you have never been able to sell-on rights you didn't already possess.
Where the GPL is on high ground is that there is no attempt to license "use" but this is normal since there is no legal "use right". GPL relies on licensing copies, as there is a "copyright" issue.
For GPL at least, if you gave, or indeed re-sold, your original media as originally received, it would be a neutral act.
An important thing here is that the GPL is _NOT_ an "end user license agreement" as there is no "use right" law on which to hang that, and the "open" part of FOSS is that whole freedom to use thing anyway.
Even though IANAL I assure you that the problem here is the EULA, which applies terms to the user "after the fact" of sale or receipt of goods. I support (reasonable) copyright, FOSS and the GPL. I never read EULAs, and do everything I can to subvert them. I like to "click through" or otherwise install software when drunk. I like to have other people click the buttons on my screen for me. When I am installing things for other people I click "I agree" without telling them there was a EULA at all, and then make sure I never "use" the software in question so that there never was an "(I) as end user".
EULAs are pure rubbish and were invented by non-lawyers and became "expected" before anybody ever considered if they were rational. They aren't.
Innocent people shouldn't be forced to pay for inferior software development.
--"Code Complete" Microsoft Press
If you don't really own the stuff when you buy it, it follows that you aren't really stealing it when you copy it. :)
Holy Christ. This is the sort of thing that would make Shylock rub his hands together in glee.
It's not, IMO, a valid interpretation of contract law, because in the GP's contractual agreement you must receive something for that money, and you have at the point of payment received absolutely nothing but promotional materials for the licensee agreement. Therefore it isn't a contract, and if that is how things are left, it isn't even a "transaction." It's more like a con at that point. It is fraud for someone to take your money misleading you that you are getting something in return when you are actually receiving nothing, and the person you are handing money to has no power to make the actual agreement, while misrepresenting his position as a seller of goods.
Taken to its extreme, this is criminal behavior that demands action.
First thing we do is demand that all licensing agreements must be made directly between the two concerned parties, or that the intermediary representative must purchase the licenses he is going to sell, to dispose of as he sees fit (no magic EULA in the box, only the explicit terms granted by the intermediary sub-licensee only, prior to payment). It should be illegal for cash to be exchanged until an explicit agreement is signed. This is how a contract is supposed to be handled. We've put up with it for so long because the software industry hasn't pressed it. Now is the time to change that before our rights are permanently revoked in common law.
Furthermore, we must demand that such agreements may no longer be sold in stores as "purchases," and that they may not be shelved with other goods, as goods, but instead negotiated in a retail office, as any other service would be. Period. At this point, shelving boxes as if they are goods is an egregious, fraudulent misrepresentation of what happens in a software purchase. You buy things in stores, to purchase outright.
Anyone who engages in a "license only" sales model should be forced to sell it like anyone else selling a service agreement. It should be explicit that this is the character of the transaction.
It's getting to the point where you can't shop for software and such goods without a lawyer present. That point should be driven home, and the likely result is a downturn in sales when advertisers can no longer say "Own it on DVD" or "Buy Windows 7" but instead must direct people to the branch office, to negotiate a service agreement for lease of usage rights. When it becomes clear what they're actually paying money for, most people will become upset at the arrangement, and demand a say in securing better terms.
And if they don't, at least we'll have an honest, no-fraud environment where you purchase such services much the way you would purchase your automobile insurance policy.
If this is what the industry really wants, and they press for this kind of nonsense legal policy, then this is what the consumers of this country must strenuously demand from each and every transaction. With this ruling, all software "sellers" are engaging in outright fraud, taking money for things they have no actual power to deliver in kind.
If the power of resale is to be torn away from the consumer, then the illusion of sale (and the higher prices that come with it) must be torn away from the publishers/developers.
--
Toro
This decision has nothing to with Obama, yet it's tagged obama.
--
make install -not war
So you don't sell it anymore cause you don't own it, you only own a lease. So you sell your lease. Problem solved.
By clicking "Yes", you agree to submit all public comments about this product to [Enter Corporate Name Here] for review and possible rejection prior to releasing them.
Orwell: "In a Time of Universal Deceit, telling the Truth is a Revolutionary Act"
How would that be any different? How would that be at all legal, based on existing contract law?
The theory goes something like this. In order to produce a physical medium which contains software, one must have a license to do so, obviously enough. This is what limits sale of unlicensed ("pirated") copies. But wait, there's more. Having purchased a duly licensed physical copy of the software, you require a further license to actually execute the software, because you'd need to copy the software off the medium and into a computer's memory (and probably onto your hard disk too) in order to actually use it. You don't have that right unless the copyright owner specifically grants it -- or so goes the logic behind the EULA.
Two ramifications follow. One is that the industrial machinery you talked about is different in that it does not require a further act of copying in order to operate it -- assuming the device is purely mechanical. Of course, a manufacturer that wanted to pull that particular stunt could do so by making the device partly software based -- and what device of any complexity isn't at least a little software based these days? All you need to do is ensure that the program code must be copied from A to B as part of execution (e.g. off disk to RAM), and you can sell the license for this act of copying under whatever terms and conditions you like! Your Machiavellian manufacturer then places an EULA in the box which admits that you own the physical atoms therein, but reserves the rights in the software it contains, offering you the license to make copies as necessary to execute the software under its choice of terms and conditions. The ability to actually use the machine for its intended purpose is thus subject to the terms of the EULA.
The second ramification is the problem of equivocation which seems to be the root problem behind the Autodesk issue. There are TWO licenses. The parties in the case seem to be arguing about different licenses, and arguing as though these are the same license, when they are not. The physical media on which the software is sold (along with any manuals and packaging) are covered by one particular license. They were manufactured under license, and that license is not revocable by any doctrine of which I (and IANAL) am aware. Thus the doctrine of first sale. The license necessary to install (making a persistent copy) and run (making a volatile copy) the software are totally separate, covered by the EULA. It's completely fair that Autodesk terminate the second license on sale of the physical media: this is what prevents people from buying, installing, and re-selling, while continuing to use the software. It might even be fair (in a loose sense of "fair") for them to say that the second license is not transferable with sale of the media, but this does not render the media itself "unlicensed" -- that was license #1, and it's tied to the media for life.
My conclusion: the re-sale of the media should be permitted under the doctrine of first sale, with the understanding that the media no longer carries the necessary license to use the software. The sale should not be prohibited, because there are still valid reasons to purchase the media, even without the license. First among these is the desire to purchase a back-up copy or replacement copy in the case where someone already has license #2. It's also conceivable (albeit odd) that someone wants to purchase the media without intending to run it, or (more likely) they live in a jurisdiction (outside the USA, obviously) where the law does not recognise the need for license #2 -- it is considered implicit, because without it the goods are not fit for the purpose they are sold.
sudo mod me insightful
proof, n. A demonstration that a conclusion is implied by certain premises and axioms.
If software publishers are going to demand abhorrent use terms, then shouldn't their terms be on the outside of the package so that the buyer has the ability to make an informed purchasing decision?
Orwell: "In a Time of Universal Deceit, telling the Truth is a Revolutionary Act"
The terrible thing about the ruling is that it uses copyright law.
When CTA received the physical media for AutoCAD R14, did they become the owners of the physical media (as distinct from the software), or did the media remain the exclusive property of AutoCAD? If the media belonged to AutoCAD, then presumably this would have been prosecuted as a case of stolen property, so I'm assuming that CTA did in fact become the rightful owners of the media. The media was manufactured under license from AutoCAD, so the media is not an unlicensed copy. There is no question of unlicensed goods here so far.
I accept that CTA violated its contractual obligations when it sold the media, rather than destroying it. That should provide grounds for AutoCAD to sue CTA for consequent damages, which should include at least the value for which the goods were sold. However, it SHOULD NOT terminate the license on the physical media: the goods do not become infringing, unlicensed goods due to a contract violation. The only question that should be relevant to copyright in this case was whether the goods themselves were manufactured under license. Allowing a copyright holder to retroactively un-license the production of a copy is a recipe for abuse.
This is awfully close to the case which established the doctrine of first sale, if an earlier poster's summary of that case is accurate enough. I'll quote the relevant part here.
In that case, Bobbs-Merill sold books to wholesalers their copyrighted book including a "shrinkwrap" license saying retailers shall not sell the book below a certain price. Wholesalers sold the books to retailers. Retailers sold the books below the certain price to consumers. The Court held that the license was not binding upon the retailers because there was no privity of contract between the retailers and Bobbs-Merill. This is true: there was only privity of contract between Bobbs-Merill and the wholesalers. And as the license only purported to bind retailers, the wholesalers did not violate the terms of the license either.
That comment argued against the relevance of the first sale doctrine in this case, but let me construct a counter-argument. What Bobbs-Merill should have done in their "shrink-wrap" license is require that the wholesaler also produce a "shrink-wrap" license to bind the retailers. If the wholesaler had failed to bind the retailers, then the books would retroactively become unlicensed reproductions and illegal to sell; if the wholesaler had bound the retailers, then the retailers would be so bound. "First sale" be damned: you can drive a truck full of books through that loophole.
Arguably all this nonsense can take place without getting copyright involved at all. The difference is that your contracts need to be explicit -- not the unilateral terms shenanigans of a shrink-wrap license -- and the dispute remains a dispute between the signatories to the contract, without the cascading effect of copyright infringement on each subsequent transaction (despite the fact that the goods were originally produced under license). No doubt copyright owners like the power offered by shrink-wrap licenses, and being able to sue a whole bunch of extra people for copyright infringement is just adding more power on top.
proof, n. A demonstration that a conclusion is implied by certain premises and axioms.
Think if news-corporations only RENTED news for the public. That news were licensed for only a limited time. In that way the propaganda machine could actually control the public memories. Things that were two months old was deleted from the Internet because of them not having license to exist for longer. There is a book called 1984 that tells where this road ends. I also study some history, and maybe we could name this period after an older period in time. There were times where powerful people controlled most knowledge. It didn't turn out well, it became known as the dark ages. Maybe we can call it "the second dark age"?
Politicians can be bought for a few thousand. They are REALLY cheap. Tens of millions would buy you congress. Just check how much a politician does for a donation of 10 grand.
That is the difference between moral vacuum and honest crooks. Crooks do it for big bugs only. A mafia hitman will charge a lot of money because to the mafia a life has value. A random lunatic with zero morals will do it for a tenner, because life has no value.
The days of honest crooks wanting big bucks is gone. Now they just want enough to help fund their election campaign because they know that it is the easiest way. And they tell themselves they are not corrupt, because it doesn't go directly into their pocket. Just that the paid for election campaign gets them elected and all the salaries and compensations and later commission's that come with the job.
The decay of democracy doesn't make for an intresting movie. It is not the evil of the black, but of the gray.
MMO Quests are like orgasms:
You may solo them, I prefer them in a group.
Because then the box would be so big, it wouldn't fit into your car.
Sometimes the truth is arrived at by adding all the little lies together and deducting them from all that is known.
There needs to be a series of legal tests to identify if you are actually licensing a copy or buying a copy. I think a key means of identification would be the right of free replacement. For example if I buy music on iTunes am I buying or licensing. If I am licensing I should be able to request a replacement copy any time my original copy becomes damaged or lost because I require the item in question in order to be able to exercise my license. Apple and every software, movie, and music company will not do this for the most part. They claim you license it, but in reality they treat it as if you bought it. Therefore they should lose the argument that you only license the right to use the item in question.
Another test should be if the second party to a license is able to request and to receive individual modifications to the license. If the person has no ability to modify said license then the license should be considered unenforceable. A license is a two way document, that should grant both parties just as many rights as it takes away.
"GET / HTTP/1.0" 200 51230 "-" "Mozilla/4.0 (compatible; Setec Astronomy)"
Just pirate it. Download it for free, crack it, and use it. You don't pay them a single cent and give a big "screw you all" sign to all these idiots.
The key issue that this entire case revolves around is whether he purchased Retail Boxed Sets. If all he had were License Keys from Autodesk, then I have to agree that the Doctrine of First Sale does not apply as he had not purchased a product, just the license key, under the terms of the license offered by Autodesk.
As an example, if you purchase a Boxed Retail Windows Upgrade, that at least a License Key, then the Doctrine of First Sale must apply as the item was purchased at Retail. Otherwise it falls under an OEM or other Contractual License agreement, which is the reason I refuse to purchase OEM software. I specifically purchase Retail Versions for just this reason. Absolutely No Argument about the Doctrine of First Sale.
Mod me up/Mod me down: I wont frown as I've no crown
Well, if the producer doesn't respect the consumer, why should the producer expect the consumer to respect the producer.
If you have no rights, where is the incentive to pay the producer?
If you buy something but can't resell it then it is not worth as much.
Software that used to sell for $100 is now instantly worth significantly less, let's say $50.
Now the developer can only sell it for half as much but he only gets 1/3rd which means he is getting far less.
But that is okay because all the good software has already been written. (like music)
Since you have to have the DVD in the drive, why do you have to install the program to the HDD in the first place?
.. vote Pirate