|
PureBytes Links
Trading Reference Links
|
In my humble opinion.......Sigstroker is a plant from
TRAD!! Just an opinion, but thats the way I would
trade this one.
AA
--- Bill Wynne <tradewynne@xxxxxxxxxxx> wrote:
> >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!
>
=== message truncated ===
|