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Richard:
I don't doubt anything you say, and I never meant to imply "EULA sales
restrictions are dead," but what this judge said appeals to my limited
trader logic and seems to be a reasonable argument:
"Judge Pregerson wasn't convinced, and decided that existing copyright law
should apply:
"... the purchaser commonly obtains a single copy of the software, with
documentation, for a single price, which the purchaser pays at the time of
the transaction, and which constitutes the entire payment for the 'license.'
The license runs for an indefinite term without provisions for renewal. In
light of these indicia, many courts and commentators conclude ***that a
"shrinkwrap license" transaction is a sale of goods*** rather than a
license.""
BW
>From: TaoOfDow <TaoOfDow@xxxxxxxxxxxxxx>
>To: Bill Wynne <tradewynne@xxxxxxxxxxx>
>CC: trader@xxxxxxxxxxxxxxx, rhodes@xxxxxxxxxxxxxx, omega-list@xxxxxxxxxx,
> QCharts <qcharts@xxxxxxxxxxxxxxx>, DynaStore
><dynastore-qc@xxxxxxxxxxxxxxx>
>Subject: Re: bootleg ts --- Softman v. Adobe
>Date: Tue, 18 Dec 2001 16:46:02 -0500
>
>Dear Bill & Group,
>
>I respectively suggest that your reliance on the case discussed in
>http://www.theregister.co.uk/content/4/23073.html (Softman Products
>Company,
>LLC v. Adobe Systems Inc., 171 F.Supp. 2d 1075, CD Cal, 2001) for the
>proposition that EULA sales restrictions are dead as against a consumer may
>be
>premature. The circumstances of Softman were as follows:
>
>1. Adobe sold bundled (ie, collections of) software to distributors, all
>subject to a EULA ("end-user license agreement").
>2. The Adobe EULA provided among other things that by installing the
>software,
>the user agreed to its terms.
>3. Softman (doing business as "www.buycheapsoftware.com") bought such
>bundled
>software from an Adobe distributor at wholesale; unbundled it; and sold the
>individual, unbundled pieces of software as single products to consumers at
>retail.
>4. Adobe applied to the Court for a preliminary injunction against
>Softman,
>barring Softman from continuing its unbundling and sale of individual
>pieces of
>Adobe software. Adobe claimed that by unbundling and distributing its
>software
>as it was, Softman had violated the EULA and infringed Adobe's copyright,
>specifically, Adobe's right to distribute and control distribution of its
>software.
>5. After hearing oral argument and considering the parties' pleadings, the
>Court found, among many other issues, that the EULA was not enforceable
>against
>Softman, because (a) for an agreement, such as a EULA, to be enforceable
>against a party, that party must consent to it; (b) assent for the Adobe
>EULA,
>by its own terms, required installation of the software; and (c) here,
>Softman,
>as an intermediary distributor, only unbundled and resold the software ---
>it
>never installed it --- therefore, because Softman never installed the
>software,
>it was not subject to the Adobe EULA.
>6. Accordingly, the Court denied Adobe's application and vacated the
>preliminary injunction that it had previously granted to Adobe.
>7. As regards the Adobe EULA and a consumer, the Court specifically opined
>"... there is only assent on the part of the consumer, if at all, when the
>consumer loads the Adobe program and begins the installation process."
>
>Consequently, the Softman case is limited to its unique circumstances,
>namely,
>given Adobe's EULA (which provides for assent by installation of the
>software)
>and Softman (an intermediary distributor who buys bundled software from a
>distributor at wholesale, unbundles it, and sells the individual products
>to
>consumers at retail), can Adobe obtain a preliminary injunction against
>Softman? This Federal District Court said "No." The underlying issues
>have
>not been settled on their merits. Adobe has only been denied an injunction
>---
>its remedy is now to file suit against Softman on the underlying merits.
>What
>this Court has said is that it does not believe Adobe would prevail in such
>a
>future case --- but that future case is not this case, which dealt solely
>with
>whether Adobe's case was so strong, and Softman's activities were so
>damaging
>to Adobe, that Softman should be prevented from carrying on its activities
>(ie,
>be enjoined) before that future case can be heard and decided.
>Furthermore,
>the issues of the enforceability of Adobe's EULA against a consumer of
>Adobe
>software (ie, someone who actually installs the software) and the
>enforceability of EULAs in general (such as the TradeStation EULA) remain
>to be
>determined.
>
>I am fearful that my note has given you 99 times (or more) what you wanted
>to
>know about EULAs in general and the Softman case in particular. I offer as
>meek consolation that if we damn lawyers were not so damn verbose, how
>would we
>make any living? Might we have to trade, instead?
>
>Sincerely,
>
>Richard
>
>
>
>Bill Wynne wrote:
>
> > >Order is maintained by fear of legal
> > >reprisal and the licencing agreements (more like commandments). And,
> > >like Microsoft's customers, Omega licencees are compelled to play along
> > >....
> >
> > Or not. Si Dawson posted the link below on the QCharts list in response
> > to a question by me:
> >
> > >are the software license agreements actually legal, much less
> > >enforceable?
> >
> > "The answer is (officially) no:
> >
> > "US court ruling nixes software EULA sales restrictions""
> >
> > http://www.theregister.co.uk/content/4/23073.html
> >
> > the essence is:
> >
> > "..consumers should have the same rights they'd enjoy under existing
> > copyright legislation when buying a CD or a book. They can't make
>copies,
> > but they can resell what they own..."
> >
> > BW
> >
> > >From: John Nelson <trader@xxxxxxxxxxxxxxx>
> > >To: Phil <rhodes@xxxxxxxxxxxxxx>
> > >CC: <omega-list@xxxxxxxxxx>
> > >Subject: Re: bootleg ts
> > >Date: Mon, 17 Dec 2001 19:37:44 -0500 (EST)
> > >
> > >
> > >The more draconian Omega's licencing restrictions become, the more
> > >customers they will lose. Like Microsoft, they do not forment trust or
> > >loyalty among their subjects. Order is maintained by fear of legal
> > >reprisal and the licencing agreements (more like commandments). And,
>like
> > >Microsoft's customers, Omega licencees are compelled to play along
>because
> > >there are no alternative products.
> > >
> > >Companies that treat their customers like food animals, and keep them
>in
> > >this state through draconian licencing can only fail. These companies
> > >either collapse under their own weight or the people rebel against the
> > >oppressors. Alternative products will arise to fill the niche and
> > >hopefully put the people on a better footing.
> > >
> > >- John
> > >
> > >
> > >
>
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