Apparently you weren't around back in the late 70's and early 80's when radio stations across the country...
I'm quite familiar with the NY market of the 70s and the LA market of the 80s. I've seen reel-to-reel dubbing, LP-to-cassette dubbing, cassette-to-cassette dubbing, and on extremely rare occasions the radio-to-cassette dubbing. Radio was inferior to LP or cassette sources and the later were widely available.
... when radio stations across the country were thumbing their noses at the RIAA by hosting "album parties." Always late in the evening, they would proudly boast they were playing so-and-so album "in its entirety" and would even tell listeners to "get your tape decks ready." We'd get side one without interruption, a brief interlude for the dj to switch sides (and for us to do the same) then we'd get side two...
That is something quite different than one person with a dual tape deck making a copy. One of various differences is that the radio station paid a royalty to broadcast those songs as per the law. What those radio stations / DJs were doing was largely stagecraft. Hardly any different than recording the top XX songs the stations were always playing. Also these albums were usually top sellers that were already past their peak in sales, often classic albums that were long past their peak. It was very different from modern ripping where people can find nearly anything including recent releases. Radio was very rarely a source for a new album.
And we didn't go to jail or risk losing our livelyhoods because of it, either.
And dubbing was a one-to-one transaction not a one-to-many transaction like ripping.
And dubbing was a lossy process that limited multi-generation copying unlike ripping.
Ripping and dubbing are not really comparable. Dubbing was like a subset of ripping where one person rips a cd, puts the file on a USB drive, lets a friend copy the files, and it ends there. Ripping cases like this are not what seems to be winding up in court. What seems to be ending up in court is where someone makes the rips available on the internet. If you want to use the dubbing comparison you would have to have one person make many dubs and start providing them to many people. When people did this the record companies and the law did get involved. Now there is an important distinction for these people who made many dubs, they tended to be involved in commercial piracy and were out to make a profit unlike the person who person who runs the website (or is seeking fame or approval equivalent to seeking a profit?). Again, we have a poor comparison between dubbing and ripping. Its probably best not to compare physical and digital goods.
Fine fine understanding that the stars are giant balls of burning gas just like the sun and like the sun could have planets and like the planet earth some of them could have light was too complex for the people that wrote the new testament.
Are you sure that you want to be "casting stones" regarding ancient and erroneous theory?;-)
The Sun is not a ball of burning gas, its a ball of fusing gas. Burning is an exothermic chemical reaction, aka combustion. Fusion is a nuclear reaction, not chemical.
So everyone's trying to make a big, fast computer. What's at stake? What does the winner win?
For some the prize may be nuclear weapons in a post test ban world. Its not just the non-nuclear powers either, existing nuclear powers have a "need" too. With currently deployed nuclear weapons aging and in need of replacement (from their owner's perspective) there is a desire to modernize weapon designs (easier to deliver smaller bombs, more bombs from existing fissionable material, etc). Super computers are essential for such activities. That supercomputer purchased from climate modeling can be repurposed for weapons design.
Similar issues with respect to supercomputers for molecular modeling applications. The machine purchased for drug testing can be repurposed for chemical and biological weapons. Well that's the pentagon perspective. The pharmaceutical industry will be concerned even with legitimate drug testing, I'm sure lobbyists are warning congress of the "supercomputer gap".
You are confusing the law with reality. In reality, that patent was not valid and that's the point the GP was making. The fact that lawyers and the PTO are fond of redefining reality is a major problem in itself.
Given that the law decides who gets fined, who goes to jail, etc the law is reality. You are confusing "what should be" with reality, unfortunately "what should be" is often fantasy.
What you (and, apparently, the moderators) don't seem to recognize is, it is not a perfectly acceptable argument. (I was aiming for "funny", not "insightful", with that particular post.
Actually the attempt at humor (double entendre "we aren't going to") was recognized but it is overshadowed by the fact that the statement is perfectly acceptable in a legal sense. Your comic intent is less important than the legal wrangling, I addressed the later not the former.
Patent licenses shouldn't be treated as protection money / promise not to sue. They should be treated as the purchasing of a right...
Promise not to sue vs purchasing a right, the two are essentially equivalent. if one fails to purchase the right the reasonable outcome is a lawsuit. The later phrase is just the lipstick on the pig, the pig being the ugly truth that it is the threat of a lawsuit that underlies any patent or copyright system.
... a right, which it turns out the seller had no authority to sell.
Actually at the time of the sale they did have the right, the patent was valid. Hence the plausibility of that statement you previously offered. It was not the best argument but you throw up a bunch and see if the judge bites on any of them.
"Why would we offer you a refund? We offered in exchange for your payment a promise that we wouldn't sue under this patent, and we aren't going to!"
While that may be a perfectly acceptable argument to make how often does a perfectly acceptable argument prevent a lawsuit? Again, I'd have more faith in terms specified in the contract/license.
Basing things on the current iPad price is not realistic. We are very early in the iPad's lifecycle and Apple is probably still pricing things according to the willingness to pay of early adopters. As manufacturing ramps up and the regular public becomes the expected audience there will most likely be models that are far less expensive than we see today.
Also there is the potential for the cost of a tablet to be offset by saving from going to digital textbooks.
As for half the functionality, add a blue tooth keyboard and you get a lot of that missing half back and are not too far from a netbook type device. At least with respect to basic browsing, email, word processing, spreadsheet and presentation functionality. Obviously some majors that have more specialized software demands will need a more traditional desktop/laptop, comp sci, chem, etc.
Its way too early to make predictions as to whether tablets will be a win or a loss for students.
Cores can be optimized for low power consumption or high performance. A core that can switch between a performance mode and a low power mode is probably making compromises on both modes. If you have completely different cores your can avoid such compromises and maximize performance in one core and minimize power consumption in the other. Having heterogeneous cores most likely yields better results than any mode switching scheme.
Yeah, it's not like they turned into a Democracy when the government finally collapsed.
Poland, Czechoslovakia, East Germany, Georgia, etc did.
The cold war was not waged exclusively against the soviet union. It was also waged against the soviet "client" states throughout eastern europe, http://en.wikipedia.org/wiki/Warsaw_Pact. Much of the info campaign was directed at these states.
Six degrees of Kevin Bacon pretty much ensures that famous people are going to get hit by the same kinds of malware that the rest of us have to deal with.
But famous people are technical experts. That's why we turn to them so often for their opinion and advice on important complicated problems that overwhelm and confuse the average person.;-)
Part of what makes the iPad really nice to read or browse is the size. What makes the iPod Touch and iPhone so nice is portability.
I somewhat agree. I much prefer using the Kindle app on an iPad compared to an iPhone. However using a higher resolution screen would partly offset a size reduction and perhaps maintain readability.
iPad: 1024-by-768-pixel resolution at 132 pixels per inch (ppi), 9.7-inch (diagonal)
iPhone 3GS: 480-by-320-pixel resolution at 163 ppi, 3.5-inch (diagonal)
iPhone 4: 960-by-640-pixel resolution at 326 ppi, 3.5-inch (diagonal)
If we use a screen comparable (wrt ppi) to the one in the 3GS we get a diagonal size of about 7.85 inches. Similar dimensions if we double the resolution and use a display comparable to the iPhone 4. Seeing the iPad go to under 8 inches seems highly plausible. Now having this occur in November, that is a bit less likely. I'd be surprised if retina displays could be manufactured at 2048-by-1536 in large enough volumes. If it happens in November I'd expect the 3GS type display.
What are you using your tablet for? I have never understood what problem a tablet is trying to solve... So what's it good for?
I think a tablet could be good for most applications where a web interface could be good.
For example I had an eye exam recently. The assistant had to walk away from myself and her various apparatus to go to her desk, ask me the standard battery of background questions, and then enter the responses into the HMO's system via a web interface. We had a chat about this and she mentioned that she would have loved to have done the Q&A on a tablet. She felt she would be more efficient staying with the apparatus and offered a friendlier and more courteous customer experience by not having to walk across the room and turn her back on me in order to use the computer.
It was many years ago but I had an insurance adjuster inspect the damage to my car and use a custom cellular based tablet to create a repair estimate.
I believe these and other serious applications are better fits for tablets than netbooks.
This is only true if your desktop firewall actually filters out something that the server-based solutions do not. There is often-times a lot of overlap, so that the desktop filters are made redundant.
Redundancy is bad in some areas but it is *good* in mission critical and security related areas. When the server-based solution gets misconfigured, the server compromised, etc you may still have some degree of protection.
...and that E.T. would be interested in such nonsense for anything other than anthropological reasons...
Given that science and religion can coexist and that science ultimately displacing religion is wishful thinking by some and not a law of nature(*), who is to say that aliens have no religion? They might.
(*) Going with the meme that all scientific discovery merely reveals the "mechanisms" of God's universe. Ie that the big bang, quantum mechanics, evolution, etc are just such "mechanisms". Given this last point I can not help but mention that the current cosmological theory of creation, the big bang, was developed by a catholic priest and that some prominent scientists dismissed the theory merely because it was developed by a priest. I think the relationship between an honest search for knowledge and belief/non-belief is not as simple as some believe.
But, according to theology, we were created perfect.
That does not seem correct. Perhaps doctrine says that we were merely created in the image of something perfect (God) and that we originally existed in some kind of state of grace.
Is he assuming that any alien's that we meet had a similar fall, and need to be redeemed?
I'm no theological scholar but angels are reported to be an intelligent creation that predated humanity and they reportedly had their own fall as well. So there is precedent. Perhaps free will is likely to result in a fall given enough time?
Apparently with enough time anything can happen, even a fun philosophical discussion involving religion on slashdot.:-)
Dragon's Lair, mid 1980s? It was a coin operated video game that basically played animated scenes from a laserdisc. Your inputs decides which way things forked at key points. http://en.wikipedia.org/wiki/Dragon's_Lair
They're not unilaterally creating an "alternative" license -- they're reselling a product they bought, just like they're free to do with any other product they buy. They don't need a license for that. And yes, they bought it: a transaction in which money is exchanged for goods is a sale, absent any agreement to the contrary.
Possession does not imply ownership. When congress codified the first sale doctrine they said that it does not apply to a person who possesses a copy of the copyrighted work without owning it, such as a licensee. That unopened box on the retail shelf explicitly identifies the software as being licensed. Whether or not a buyer agrees to the EULA seems to be a separate issue as to whether the product is a licensed product.
From what I've read when courts have ruled that a sale existed it was because they found the license was "deficient" in some manner. Did the packaging identify the product as licensed, did the terms of the license require return or destruction of the software when no longer in use, where there significant restrictions on sale or use, etc. Using these "tests" the software in this particular case seems to be a licensed product.
Courts have routinely ruled that they're binding when you agree to them, meaning that if you click "Yes, I agree" or break a seal that says "Breaking this seal means you agree", then you're bound by the license. But you don't need to agree to any license in order to resell the unopened box. Whoever told you that a contract can be "binding" on a party that hasn't agreed to it has misinformed you.
Its not that simple. The party you purchased the software from may not have been entitled to sell it to you. Which I believe was the situation in this particular case. Also contracts can be binding on a non-agreeing party in that interference with a contract between two agreeing parties is not allowed.
Your argument is built upon the fallacy that the software was sold. The buyer's erroneous assumption that they were buying rather than licensing does not make it so.
You've got it backwards. When you exchange money for a product, that's a sale by default. The only reason to believe the software wasn't sold, but rather licensed, is the fact that the EULA asks the buyer to treat the transaction as something other than a sale! You seem to be arguing that that particular section of the EULA should take effect even if the buyer rejects the whole thing.
Just because the buyer rejects the license does not mean they can unilaterally create an alternative one that gives them the authority to resell the product. What they can legally do is return the product for a refund. Your notion that things are a sale by default is false. Perhaps that is true if no license exists but that is not the case here. A license does exist, it has passed legal tests of reasonableness, public interest, appropriate for the sophistication of consumers, has a copy available online, etc. Whoever has told you that shrinkwrap or clickrap licenses are not binding has misinformed you. Courts have routinely ruled them binding. When courts have ruled that a particular license is invalid then it is usually because one of the tests I mentioned earlier has failed.
Actually a more accurate characterization of the situation is the seller says you get X and the buyer erroneously believes they are getting Z. Such a misunderstanding does not entitle the buyer to the normal privileges of Z.
Actually, it's more like the buyer believes he's getting Z -- because Z is what he gets every other time he exchanges his money for a physical good, and this transaction seemed no different -- and after he gets home and opens the box, the seller pops out and says "Surprise! You really got X!" That's not a misunderstanding, it's bait-and-switch.
That is untrue in this case. It is common to license software, it may be damn near always the case that consumer software is licensed. You are erroneously comparing physical goods and software.
There is a long standing legal concept that if you act as if you have agreed then you may be bound to it.
Yes, and...? When, exactly, did this person act as if he had agreed to the license? You don't need a license to resell, install, or use software that you buy. So if you do any of those things, you aren't "acting as if you have agreed"; you're just exercising your legal rights.
Your argument is built upon the fallacy that the software was sold. The buyer's erroneous assumption that they were buying rather than licensing does not make it so.
It is not unreasonable to enforce a licensing term that prohibits resale when the other person is attempting to sell that licensed product.
On the contrary, it is absolutely unreasonable to enforce a licensing term that prohibits resale when the other person rejected that license, did not agree to its terms, and has not taken any actions that require agreeing to that license.
You are alternatively arguing that the person was unaware of the license and rejected the license. You can't have it both ways.
To act as if this decision somehow allows any terms in any situation to be enforceable is just hysteria or political posturing.
No, not really. There's a contract that says "if you agree to this, you get X and I get Y". You reject the contract, because you don't want or need X. And now you seem to be saying it's "reasonable" for the other guy to still get Y even though you rejected his offer.
You can't seriously believe that.
Actually a more accurate characterization of the situation is the seller says you get X and the buyer erroneously believes they are getting Z. Such a misunderstanding does not entitle the buyer to the normal privileges of Z.
Slashdot Mirror
Apparently you weren't around back in the late 70's and early 80's when radio stations across the country ...
I'm quite familiar with the NY market of the 70s and the LA market of the 80s. I've seen reel-to-reel dubbing, LP-to-cassette dubbing, cassette-to-cassette dubbing, and on extremely rare occasions the radio-to-cassette dubbing. Radio was inferior to LP or cassette sources and the later were widely available.
... when radio stations across the country were thumbing their noses at the RIAA by hosting "album parties." Always late in the evening, they would proudly boast they were playing so-and-so album "in its entirety" and would even tell listeners to "get your tape decks ready." We'd get side one without interruption, a brief interlude for the dj to switch sides (and for us to do the same) then we'd get side two ...
That is something quite different than one person with a dual tape deck making a copy. One of various differences is that the radio station paid a royalty to broadcast those songs as per the law. What those radio stations / DJs were doing was largely stagecraft. Hardly any different than recording the top XX songs the stations were always playing. Also these albums were usually top sellers that were already past their peak in sales, often classic albums that were long past their peak. It was very different from modern ripping where people can find nearly anything including recent releases. Radio was very rarely a source for a new album.
And we didn't go to jail or risk losing our livelyhoods because of it, either.
And dubbing was a one-to-one transaction not a one-to-many transaction like ripping.
And dubbing was a lossy process that limited multi-generation copying unlike ripping.
Ripping and dubbing are not really comparable. Dubbing was like a subset of ripping where one person rips a cd, puts the file on a USB drive, lets a friend copy the files, and it ends there. Ripping cases like this are not what seems to be winding up in court. What seems to be ending up in court is where someone makes the rips available on the internet. If you want to use the dubbing comparison you would have to have one person make many dubs and start providing them to many people. When people did this the record companies and the law did get involved. Now there is an important distinction for these people who made many dubs, they tended to be involved in commercial piracy and were out to make a profit unlike the person who person who runs the website (or is seeking fame or approval equivalent to seeking a profit?). Again, we have a poor comparison between dubbing and ripping. Its probably best not to compare physical and digital goods.
Out of all the hardware that is controlled by software, I would have thought drone software would be the most scrutinized.
Murphy's Laws of Combat Operations, #12:
12. Never forget that your weapon was made by the lowest bidder.
Fine fine understanding that the stars are giant balls of burning gas just like the sun and like the sun could have planets and like the planet earth some of them could have light was too complex for the people that wrote the new testament.
Are you sure that you want to be "casting stones" regarding ancient and erroneous theory? ;-)
The Sun is not a ball of burning gas, its a ball of fusing gas. Burning is an exothermic chemical reaction, aka combustion. Fusion is a nuclear reaction, not chemical.
So everyone's trying to make a big, fast computer. What's at stake? What does the winner win?
For some the prize may be nuclear weapons in a post test ban world. Its not just the non-nuclear powers either, existing nuclear powers have a "need" too. With currently deployed nuclear weapons aging and in need of replacement (from their owner's perspective) there is a desire to modernize weapon designs (easier to deliver smaller bombs, more bombs from existing fissionable material, etc). Super computers are essential for such activities. That supercomputer purchased from climate modeling can be repurposed for weapons design.
Similar issues with respect to supercomputers for molecular modeling applications. The machine purchased for drug testing can be repurposed for chemical and biological weapons. Well that's the pentagon perspective. The pharmaceutical industry will be concerned even with legitimate drug testing, I'm sure lobbyists are warning congress of the "supercomputer gap".
the patent was valid.
You are confusing the law with reality. In reality, that patent was not valid and that's the point the GP was making. The fact that lawyers and the PTO are fond of redefining reality is a major problem in itself.
Given that the law decides who gets fined, who goes to jail, etc the law is reality. You are confusing "what should be" with reality, unfortunately "what should be" is often fantasy.
What you (and, apparently, the moderators) don't seem to recognize is, it is not a perfectly acceptable argument. (I was aiming for "funny", not "insightful", with that particular post.
Actually the attempt at humor (double entendre "we aren't going to") was recognized but it is overshadowed by the fact that the statement is perfectly acceptable in a legal sense. Your comic intent is less important than the legal wrangling, I addressed the later not the former.
Patent licenses shouldn't be treated as protection money / promise not to sue. They should be treated as the purchasing of a right ...
Promise not to sue vs purchasing a right, the two are essentially equivalent. if one fails to purchase the right the reasonable outcome is a lawsuit. The later phrase is just the lipstick on the pig, the pig being the ugly truth that it is the threat of a lawsuit that underlies any patent or copyright system.
... a right, which it turns out the seller had no authority to sell.
Actually at the time of the sale they did have the right, the patent was valid. Hence the plausibility of that statement you previously offered. It was not the best argument but you throw up a bunch and see if the judge bites on any of them.
"Why would we offer you a refund? We offered in exchange for your payment a promise that we wouldn't sue under this patent, and we aren't going to!"
While that may be a perfectly acceptable argument to make how often does a perfectly acceptable argument prevent a lawsuit? Again, I'd have more faith in terms specified in the contract/license.
Basing things on the current iPad price is not realistic. We are very early in the iPad's lifecycle and Apple is probably still pricing things according to the willingness to pay of early adopters. As manufacturing ramps up and the regular public becomes the expected audience there will most likely be models that are far less expensive than we see today.
Also there is the potential for the cost of a tablet to be offset by saving from going to digital textbooks.
As for half the functionality, add a blue tooth keyboard and you get a lot of that missing half back and are not too far from a netbook type device. At least with respect to basic browsing, email, word processing, spreadsheet and presentation functionality. Obviously some majors that have more specialized software demands will need a more traditional desktop/laptop, comp sci, chem, etc.
Its way too early to make predictions as to whether tablets will be a win or a loss for students.
C2 Communications has used the patent to extract one-time payments from the likes of AT&T, Verizon, and Qwest
So can AT&T, Verizon, and Qwest get refunds? I'd bet lawyers are busy re-reading that contract/license.
Cores can be optimized for low power consumption or high performance. A core that can switch between a performance mode and a low power mode is probably making compromises on both modes. If you have completely different cores your can avoid such compromises and maximize performance in one core and minimize power consumption in the other. Having heterogeneous cores most likely yields better results than any mode switching scheme.
Yeah, it's not like they turned into a Democracy when the government finally collapsed.
Poland, Czechoslovakia, East Germany, Georgia, etc did.
The cold war was not waged exclusively against the soviet union. It was also waged against the soviet "client" states throughout eastern europe, http://en.wikipedia.org/wiki/Warsaw_Pact. Much of the info campaign was directed at these states.
Six degrees of Kevin Bacon pretty much ensures that famous people are going to get hit by the same kinds of malware that the rest of us have to deal with.
But famous people are technical experts. That's why we turn to them so often for their opinion and advice on important complicated problems that overwhelm and confuse the average person. ;-)
Part of what makes the iPad really nice to read or browse is the size. What makes the iPod Touch and iPhone so nice is portability.
I somewhat agree. I much prefer using the Kindle app on an iPad compared to an iPhone. However using a higher resolution screen would partly offset a size reduction and perhaps maintain readability.
iPad: 1024-by-768-pixel resolution at 132 pixels per inch (ppi), 9.7-inch (diagonal)
iPhone 3GS: 480-by-320-pixel resolution at 163 ppi, 3.5-inch (diagonal)
iPhone 4: 960-by-640-pixel resolution at 326 ppi, 3.5-inch (diagonal)
If we use a screen comparable (wrt ppi) to the one in the 3GS we get a diagonal size of about 7.85 inches. Similar dimensions if we double the resolution and use a display comparable to the iPhone 4. Seeing the iPad go to under 8 inches seems highly plausible. Now having this occur in November, that is a bit less likely. I'd be surprised if retina displays could be manufactured at 2048-by-1536 in large enough volumes. If it happens in November I'd expect the 3GS type display.
What are you using your tablet for? I have never understood what problem a tablet is trying to solve ... So what's it good for?
I think a tablet could be good for most applications where a web interface could be good.
For example I had an eye exam recently. The assistant had to walk away from myself and her various apparatus to go to her desk, ask me the standard battery of background questions, and then enter the responses into the HMO's system via a web interface. We had a chat about this and she mentioned that she would have loved to have done the Q&A on a tablet. She felt she would be more efficient staying with the apparatus and offered a friendlier and more courteous customer experience by not having to walk across the room and turn her back on me in order to use the computer.
It was many years ago but I had an insurance adjuster inspect the damage to my car and use a custom cellular based tablet to create a repair estimate.
I believe these and other serious applications are better fits for tablets than netbooks.
Apple is coming out with a easy to swallow capsule.
Red or Blue??
Silver, charcoal, purple, blue, green, yellow, orange, red and pink. ;-)
This is only true if your desktop firewall actually filters out something that the server-based solutions do not. There is often-times a lot of overlap, so that the desktop filters are made redundant.
Redundancy is bad in some areas but it is *good* in mission critical and security related areas. When the server-based solution gets misconfigured, the server compromised, etc you may still have some degree of protection.
...and that E.T. would be interested in such nonsense for anything other than anthropological reasons...
Given that science and religion can coexist and that science ultimately displacing religion is wishful thinking by some and not a law of nature(*), who is to say that aliens have no religion? They might.
(*) Going with the meme that all scientific discovery merely reveals the "mechanisms" of God's universe. Ie that the big bang, quantum mechanics, evolution, etc are just such "mechanisms". Given this last point I can not help but mention that the current cosmological theory of creation, the big bang, was developed by a catholic priest and that some prominent scientists dismissed the theory merely because it was developed by a priest. I think the relationship between an honest search for knowledge and belief/non-belief is not as simple as some believe.
I've loved the idea of Religion and Aliens.
Good geek fun huh? :-)
What if they have never "eaten of the forbidden fruit?"
Their fall may be quite different in nature, angels had a fall unrelated to fruit.
But, according to theology, we were created perfect.
That does not seem correct. Perhaps doctrine says that we were merely created in the image of something perfect (God) and that we originally existed in some kind of state of grace.
Is he assuming that any alien's that we meet had a similar fall, and need to be redeemed?
I'm no theological scholar but angels are reported to be an intelligent creation that predated humanity and they reportedly had their own fall as well. So there is precedent. Perhaps free will is likely to result in a fall given enough time?
:-)
Apparently with enough time anything can happen, even a fun philosophical discussion involving religion on slashdot.
Dragon's Lair, mid 1980s? It was a coin operated video game that basically played animated scenes from a laserdisc. Your inputs decides which way things forked at key points.
http://en.wikipedia.org/wiki/Dragon's_Lair
They're not unilaterally creating an "alternative" license -- they're reselling a product they bought, just like they're free to do with any other product they buy. They don't need a license for that. And yes, they bought it: a transaction in which money is exchanged for goods is a sale, absent any agreement to the contrary.
Possession does not imply ownership. When congress codified the first sale doctrine they said that it does not apply to a person who possesses a copy of the copyrighted work without owning it, such as a licensee. That unopened box on the retail shelf explicitly identifies the software as being licensed. Whether or not a buyer agrees to the EULA seems to be a separate issue as to whether the product is a licensed product.
From what I've read when courts have ruled that a sale existed it was because they found the license was "deficient" in some manner. Did the packaging identify the product as licensed, did the terms of the license require return or destruction of the software when no longer in use, where there significant restrictions on sale or use, etc. Using these "tests" the software in this particular case seems to be a licensed product.
Courts have routinely ruled that they're binding when you agree to them, meaning that if you click "Yes, I agree" or break a seal that says "Breaking this seal means you agree", then you're bound by the license. But you don't need to agree to any license in order to resell the unopened box. Whoever told you that a contract can be "binding" on a party that hasn't agreed to it has misinformed you.
Its not that simple. The party you purchased the software from may not have been entitled to sell it to you. Which I believe was the situation in this particular case. Also contracts can be binding on a non-agreeing party in that interference with a contract between two agreeing parties is not allowed.
Your argument is built upon the fallacy that the software was sold. The buyer's erroneous assumption that they were buying rather than licensing does not make it so.
You've got it backwards. When you exchange money for a product, that's a sale by default. The only reason to believe the software wasn't sold, but rather licensed, is the fact that the EULA asks the buyer to treat the transaction as something other than a sale! You seem to be arguing that that particular section of the EULA should take effect even if the buyer rejects the whole thing.
Just because the buyer rejects the license does not mean they can unilaterally create an alternative one that gives them the authority to resell the product. What they can legally do is return the product for a refund. Your notion that things are a sale by default is false. Perhaps that is true if no license exists but that is not the case here. A license does exist, it has passed legal tests of reasonableness, public interest, appropriate for the sophistication of consumers, has a copy available online, etc. Whoever has told you that shrinkwrap or clickrap licenses are not binding has misinformed you. Courts have routinely ruled them binding. When courts have ruled that a particular license is invalid then it is usually because one of the tests I mentioned earlier has failed.
Actually a more accurate characterization of the situation is the seller says you get X and the buyer erroneously believes they are getting Z. Such a misunderstanding does not entitle the buyer to the normal privileges of Z.
Actually, it's more like the buyer believes he's getting Z -- because Z is what he gets every other time he exchanges his money for a physical good, and this transaction seemed no different -- and after he gets home and opens the box, the seller pops out and says "Surprise! You really got X!" That's not a misunderstanding, it's bait-and-switch.
That is untrue in this case. It is common to license software, it may be damn near always the case that consumer software is licensed. You are erroneously comparing physical goods and software.
There is a long standing legal concept that if you act as if you have agreed then you may be bound to it.
Yes, and...? When, exactly, did this person act as if he had agreed to the license? You don't need a license to resell, install, or use software that you buy. So if you do any of those things, you aren't "acting as if you have agreed"; you're just exercising your legal rights.
Your argument is built upon the fallacy that the software was sold. The buyer's erroneous assumption that they were buying rather than licensing does not make it so.
It is not unreasonable to enforce a licensing term that prohibits resale when the other person is attempting to sell that licensed product.
On the contrary, it is absolutely unreasonable to enforce a licensing term that prohibits resale when the other person rejected that license, did not agree to its terms, and has not taken any actions that require agreeing to that license.
You are alternatively arguing that the person was unaware of the license and rejected the license. You can't have it both ways.
To act as if this decision somehow allows any terms in any situation to be enforceable is just hysteria or political posturing.
No, not really. There's a contract that says "if you agree to this, you get X and I get Y". You reject the contract, because you don't want or need X. And now you seem to be saying it's "reasonable" for the other guy to still get Y even though you rejected his offer.
You can't seriously believe that.
Actually a more accurate characterization of the situation is the seller says you get X and the buyer erroneously believes they are getting Z. Such a misunderstanding does not entitle the buyer to the normal privileges of Z.