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>From: Sigstroker@xxxxxxx
>To: omega-list@xxxxxxxxxx
>Subject: Re: Illegal to sell TS????
>Date: Sun, 10 Feb 2002 00:45:28 EST
>
>I can't imagine why it would be "hotly contested" in the courts. Maybe the
>people contesting it wish it were.
Clearly the wishing and hoping and contesting is from the
software vendor side. They want whatever they put in the
agreements to be the law. For example, Omega offered free,
no strings attached, 30 day trials, but to get the "free trial" you
have to click through the license agreement. They also advertised
that you can "own" TS.
>It's open and shut - the buyer agrees to
>it in the license. Software has been sold in this manner for as long >as I
>can remember. Long before PC's were even invented.
The bigger question, and I've never heard an explanation, why is
software any different from books or music or any other
intellectual property? Just "because" a contract or license agreement
exists, that does not make it legal. Particularly when it's at odds with
advertising for the product. Here's a few links and excerpts:
http://lwn.net/2001/1108/
"The other aspect of the court's ruling is that the software was sold - not
licensed - to SoftMan:
The Court understands fully why licensing has many advantages for software
publishers. However, this preference does not alter the Court's analysis
that the substance of the transaction at issue here is a sale and not a
license. Since this transaction is a sale, the first sale doctrine applies:
In short, the terms of the Adobe EULA at issue prohibit licensees from
transferring or assigning any individual Adobe product that was originally
distributed as part of a Collection unless it is transferred with all the
software in the original Collection. This license provision conflicts with
the first sale doctrine in copyright law, which gives the owner of a
particular copy of a copyrighted work the right to dispose of that copy
without the permission of the copyright owner..."
http://www.theregister.co.uk/content/4/23073.html
"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."
To be clear, we are not talking piracy here, but selling the original copy
you "bought." Obviously it's not worth the effort for the software companies
to go to court over the transfer of a single $50 program, and no consumer is
going to take on the software companies to
make a point, but I'm curious if this has ever been in court other than the
Adobe case?
As I said before, I expect the software giants to buy a decision in the end
(they can afford a LOT of good lawyers), but I've never
heard a logical rational as to why software is different from all other
forms of intellectual property. I guess their logic is like when
I was a kid:
"Mom, can I go out and play?"
"No."
"Why not?"
"Because."
"Because why?"
"Because I said so."
The software companies have become one big mother....
BW
>
>In a message dated 2/7/02 6:19:59 PM Pacific Standard Time,
>TaoOfDow@xxxxxxxxxxxxxx writes:
>
> > Dear Volker,
> >
> > The rights and obligations of a "purchaser" of TS from Omega are
>provided
>in
> > the
> > Omega TS end-users agreement, which I believe characterizes the
>transaction
> > as a
> > purchase of a license to use TS, which license is personal to that
>license
> > purchaser. As a personal license, then, according to the agreement,
>neither
> > the
> > license nor the underlying software is transferable to a third party.
>As
> > you
> > might imagine, this characterization is not what some purchasers of TS
>in
> > particular, and of other software in general, thought they wer buying
>---
> > they
> > thought that they were buying the software, and as buyers, thought that
>they
> > had
> > the right to do what they wanted with it, including not only selling it
>to
> > third
> > parties but also having the original purchasers rights to receive
>ongoing
> > upgrades and technical support be transferable to third-party
>purchasers,
> > none
> > of which, I understand, Omega is willing to recognize. In any event,
>this
> > characterization of "end-user agreements", the issue of purchase of
> > software
> > vs. purchase of personal license to use software, is currently a hotly
> > contested
> > issue in the US Courts. Recently, a California Court of Appeal handed
>down
> > a
> > decision in favor of the "purchase of goods" side (as against the
>"purchase
> > of
> > license" side). Time will only tell if that decision itself is upheld
>if
> > appealed or if it will be followed by other Courts. In other words,
>the
> > answer
> > to your question is "it remains to be determined." Volker, would you
>care
> > to
> > buy an option contract on the ultimate decision? I'm a trader at
>heart!
> >
> > Sincerely,
> >
> > Richard
> > (An atty in a former life)
> >
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