back to article US court says software is owned, not licensed

Software company Autodesk has failed in its bid to prevent the second-hand sale of its software. After a long-running legal battle, it has not been able to convince a court that its software is merely licensed and not sold. Like many software publishers, Autodesk claims that it sells only licences to use its software and that …

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  1. Grease Monkey Silver badge
    FAIL

    Leasing?

    My question for Autodesk would be, if it's only licensed and not purchased how much will you give me if I decide to return the "software and accompanying materials" once I decide I don't need them anymore? If the answer is "nothing" then it's not really a licencing agreement is it?

  2. Dick Emery
    Thumb Up

    Good for him!

    Now how does that apply to music and movies? Especially those in the digital domain? Can you sell on your iTunes collection for instance?

    I do hope this sets a precedent on all software licensing. I can see this getting up MS nose for one.

  3. Charles 9
    Thumb Up

    Looks like what I said was true...

    If it looks like a sale and transacts like a sale, it's a sale.

    This will give a boost to the application of First Sale Doctrine to other forms of software. Next step, I would think, is the electronic distribution of software, where no disc/disk changes hands.

  4. Jason D

    Wow

    This seems like good news overall, the judge's arguments were well balanced I felt.

  5. Anonymous Coward
    Anonymous Coward

    common sense

    Although it serves me that software is liscenced (since i work in the industry), as a consumer i think this ruling is great since so many software liscenes are so restrictive and take no account of consumers in the slightest. Software thinks it is some special new industry where it does not sell its goods, only lisence them... yet wants no liability if anything goes wrong (check your EULA).

    I proudly use copied autodesk software, otherwise i would not be able to learn it. Should the situation arise where i use it commercially, then i will pay their liscence, but lets not forget Macromedia's rise to the top of web software by deliberatly making their software ripe for use illegally.

  6. Bilgepipe

    Interesting.

    This could have wide-reaching consequences for software, then. Or it could just be that Autodesks crappy license wasn't well-worded or thought-out.

  7. Anonymous Coward
    Happy

    Ownership implies "goods" ???

    Does ownership imply that software is being redefined as "goods"?

    Software is generally treated as "services" rather than "goods" and because of this it does not come under the sale of goods act (or whatever the American equivalent of this is - we're talking about a US court here), and because of this (and this is the really interesting bit) the purchaser has no redress under the act if the software fails to perform as advertised. Specifically, the purchaser has no opportunity for a claim of "fit for purpose".

    If software is now "goods" though, then "fit for purpose" becomes an issue, and a legal one at that. Need I expand on this to highlight the conclusion? :-) are you listening MS?

  8. Anonymous Coward
    Anonymous Coward

    Take your EULA and shove it

    If they decided it was licensed not sold, then all those OTHER licenses would come into force, like the license on the washing machine requiring you only use approved parts, or the license on the ink cartridges that requires you buy only official cartridges in the printer. Next we'd have licenses on stuff bought in Walmart requiring you only buy stuff from Walmart!

    It's SOLD, it's not LICENSED, there was no negotiation, no contract signed or implied, the person bought the software and expected to own that copy of it. This goes for everyone of those change-the-terms-of-sale-after-the-contract EULAs too.

    Having the ability to return software at great inconvenience and expense, is no substitute for a contract, there is nothing there that constitutes a negotiation, the supposed acceptance of the terms comes AFTER you've paid for it. There WAS a contract there, but it is a normal retail contract protected by laws around the world, stuff like MERCHANTABILITY and RIGHT TO RETURN FAULTY GOODS TO THE VENDOR. You are selling a software package, not an ongoing service, so go away and take your EULA and shove it.

    Now would be the time for the trading standards bodies to get involved and tackle the deception involved in the EULA licensing scam, designed to deceive the buyer of software into thinking they have less rights than they have.

  9. Anonymous Coward
    Stop

    Also...

    If software is owned and not licensed then where does this leave "annual licences"? Such a concept is an oxymoron.

  10. Jimmy Floyd
    Boffin

    Misleadingly positive

    This is a great ruling, or would be were it not for the example on which the ruling was made.

    I have always believed that licensing software was a one-sided arrangement. Technically, I can't buy console game, play it to death then sell it on because when the buyer gets it from me they are not contributing further to the revenue stream of the development studio (and publishers and shops etc. ad infinitum).

    Trouble is, were that the case then I - as a licensee - should have the right to request duplicate copies of the software. Maybe I damaged one, destroyed one, or maybe I'd just like one for my home PC and one for work. However selfish that may sound, if you take the argument that I am a licensee then you have to follow it to conclusion. Generally, software publishers don't and I suspect that's why they don't pursue people very often - they know that the whole arrangement could blow up in their faces. Or they're just too busy going after pirates.

    But this ruling was based on a piece of film (by implication the original) where there was never a licence in place. This is a great ruling, if it had ramifications elsewhere throughout the US and preferably Europe too. Trouble is, I suspect software lawyers can already see ways around it.

  11. Captain Save-a-ho
    Coat

    Re: Also...

    If software were purely static and never required modifications after the sale, I would agree. Renewable agreements like annual upgrades really become a support contract that the consumer agrees to for on-going support of the software (which in and of itself still can be moronic, albeit not oxymoronic).

    About that Coat 2.0...

  12. Campbeltonian

    My way...

    If I had it my way, the software would be licensed but the licence itself would be sold. This would allow the copyright to remain with the original licensor while still allowing the US first-sale doctrine to apply.

    That, to me, is the common sense way of doing things.

  13. Michael C
    Thumb Up

    Now, about that software DRM...

    I've got a few games, and a couple of other software apps, I'd really LIKE to resell, but since the online codes are locked to a central server, and a new customer could not get their own account to use and update the software, i can't resell it...

    I'm not talking about MMOs, which to my view ARE licneses (since they hav recurring and continual fees for access), I'm talking about things like Diablo II, Neverwinter Nights, Quickbooks, applications that require the creation of an e-mail or logon based account for which the username can not be changed once registered, and for which they do not approve the transfer of the account.

    Also, all the electronic copies i have downloaded over the years of various programs, which since there's no original media, can not be resold. i need a method for doing that. In fact, that's the primary reason i do not buy electronic software at all anymore unless it is radically cheaper than boxed versions. Steam, I'm talking to you...

    This case sets a prescedent, now we need someone to form a class action suit against EA and Steam, Microsoft (x-box live), nintendo and sony, and a few others to ensure our electronically downloaded copies of software are equally resellable to physical media, or are mandated to have a discounted price equivalent to expected resale value after a depreciated age.

  14. Charles 9

    Re: Ownership implies "goods" ???

    The concept of "sale of goods" is known in the US as the Right of First Sale or First Sale doctrine: basically, once a good changes hands, other than for reasons of illegality, the seller has no more say in the handling of a product. When it comes to works of copyright (copies of a book, record, program, etc.) the First Sale Doctrine is codified in the US Copyright Act of 1976 to ensure those rights are clearly available even in the scenario of copyright.

    The US also has safeguards against things not "fit for purpose" if a product is advertised to do something. Saying one thing while it's really another can be considered "false advertising": a crime in the US. If a product is defective to the point of hurting someone, a company can be found liable for producing an unnecessarily dangerous product.

  15. g e

    Computing related oxymorons ?

    Soundblaster Pro

    Microsoft Works

  16. Skizz

    If I own the software...

    ...can I choose to uninstall it from one machine and install it on another. It's a bit like buying a CD but only being allowed to play it on one CD player. Want to take it out and play it on another CD player - nope, must buy a new CD.

    CanOfWorms->Open ();

    I see lots of money being spent on Senators in the near future (or whoever, I'm not American and I'm only vaguely knowledgable on US politics).

  17. Anonymous Coward
    Anonymous Coward

    Psystar

    Where does this ruling leave Psystar, or whatever their name is? A court has said that software is owned and not licenced which means that Psystar and not Apple own OSX, which in turn would mean Psystar can do whatever they want with it, even installing it on "non apple branded hardware", or am I missing something?

  18. Anonymous Coward
    Thumb Down

    Bad ruling

    Software, by and large, is licensed. The exception would be something like games which tend to be bought, played, finished and sold on. But they are "odd" is software terms as (barring a few biggies) there are seldom patches, support etc.

    All other software is licensed, and that is by far the best business model. The license grants you not just permission to use the software, but all the updates, support and (potentially) customisation. It's like a lease-hire for a car (every so often you get a "patch" - a new car).

    This is truly crazy ruling. Imagine buying a Ford Fiesta, and then when Ford release an updated model each year, demanding a free upgrade. When anything goes wrong, demanding a free fix. This is what this ruling could do to the software industry.

    So all those people thinking "Yay, woo, stick it to the man!", I hope you remember your glee when you cna't get any help because the companies have gone bust (well, those who's revenue stream isn't based on support provision).

  19. Peter H. Coffin

    Complaining about metaphors used invalidates discussion.

    @MichaelC FWIW, Diablo II does NOT lock a key to an online account for any appreciable period of time. Characters on Diablo BattleNet expire after a month of inactivity, and the whole account goes away after three months of no logins.

  20. Anonymous Coward
    Thumb Up

    Pystar - OEM Windows

    If as suggested in the pystar comment above. would that not also apply to OEM windoze?

  21. Simbooth
    IT Angle

    @AC (Bad Ruling)

    Yes, but I do'nt think that it is like leasing a car; you are buying it. you are not (mostly) restricted to returning it after a set amount of time, you can part-exchange it (ie upgrade) or sell it second hand (or in softwares case I believe you should be able to). If there is a major fault with the car it is eligible for a recall, even if the car has passed to a new owner, and the bodywork warranty also passes on (though parts and labour generally doesnt, which i would equate in software to supplying security and vital updates, but not new functionality such as upgrades).

    Personally I think that software makers have got away with this for too long; law should be based on common sense, and licensing and EULA's fly in the face of it.

  22. Anonymous Coward
    FAIL

    RE: Bad ruling

    Regardless of whether software is licensed or owned your argument is totally flawed.

    "The license grants you not just permission to use the software, but all the updates, support and (potentially) customisation"

    No it doesn't. It might have extra suuport but normally the license is quite restrictive, saying that no suitability for purpose is given and often support is a service you pay extra for. Customisation is rarely ever given for free - it is a paid for extra service. Patches are often given free, but updates quite often aren't.

    "Imagine buying a Ford Fiesta, and then when Ford release an updated model each year, demanding a free upgrade."

    Imagine buying Windows Vista and then when Microsoft release an updated model (Say Windows 7) demanding a free upgrade (even when they admit the previous version is flawed).

    "...When anything goes wrong, demanding a free fix. This is what this ruling could do to the software industry."

    Well I think you'd have a lot more chance of getting a problem with a new car fixed by Ford if it went wrong (even legally they'd be made to fix it) than forcing a software publisher to fix a specific problem with your software - once again their license oftens words against liability for such things. Flaws in Excel lasted generations of their software and might still not even be fixed now.

  23. Charles 9

    Re: Bad ruling

    That is not what's being disputed here. Try this on. Imagine buying a car from a dealer and finding out that you can't resell THAT CAR on the open market. That's what the ruling is about. Any continual support for a product (service contracts and so on) are considered contracts and, unless the product itself is part of the agreement, are separate from the product itself (it's like the difference between a free Linux distro and a commercial one--you're not paying for the software but the support behind it). Now, if a car is leased or a software is leased with a long-term support program, you're supposed to agree to it beforehand with your signature in ink on a formal contract provided directly by the software provider or a duly-and-legally-authorized agent. And this has to occur BEFORE the actual exchange.

    And if Apple and the like don't like the system, don't play. If you don't like people installing MacOS on non-Apple machine, simply refuse to support them (no upgrades).

  24. Anonymous Coward
    Anonymous Coward

    @Bad ruling

    "Software, by and large, is licensed. The exception would be something like games which tend to be bought, played, finished and sold on."

    No it's not, never was, wishful thinking originally by Microsoft legal department.

    "All other software is licensed, and that is by far the best business model. The license grants you not just permission to use the software, but all the updates, support and (potentially) customisation. It's like a lease-hire for a car (every so often you get a "patch" - a new car)."

    We get those now and it's not licensed. We get them because the vendor is required to sell merchantable goods.

    "This is truly crazy ruling. Imagine buying a Ford Fiesta, and then when Ford release an updated model each year, demanding a free upgrade. When anything goes wrong, demanding a free fix. This is what this ruling could do to the software industry"

    New model Fiesta? Is Windows 7 free then? Nope! didn't think so. Ford *do* factory recalls for faults, they do that because their goods need to be merchantable. Their cars are still sold not licensed.

    I'm not thinking 'YAH Stick it to the man', I'm thinking it's time to stop this deception that is the EULA on sold goods and that they need to crackdown on what is a fraudulent practise of trying to deny people their full rights under the sale of goods act and similar acts around the world.

    They are entitled to merchantable goods, these goods are boxed, they are clearly not a service, they are retailed like all other sold goods and subject to the same rules as all sold goods and it's time the EULA deception was tackled.

  25. James O'Brien
    Pint

    @Psystar

    Ohhhh good catch. When said that way it is an interesting little tidbit and does beg to be answered. Of Course Im sure that Apple will change their software so you have to pay a monthly $15 just to keep using it, this was they can keep the license.

  26. JohnG

    Re: "Bad ruling" AC Posted Tuesday 6th October 2009 12:24 GMT

    "Imagine buying a Ford Fiesta, and then when Ford release an updated model each year, demanding a free upgrade."

    Software manufacturers don't tend to give free UPGRADES either - they (sometimes) provide fixes for things that are wrong with their product, in the form of UPDATES, which would equate to a product recall in the motoring industry.

    Most software I have ever bought has been sold as "fire and forget", with the manufacturer turning their back on each version as soon as they think they can get away with it, inviting me to "upgrade" to a newer version. The upgrades are typically the same as or more than the market price of the new version.

  27. Pirate Dave Silver badge

    @Bad Ruling

    "The license grants you not just permission to use the software, but all the updates, support and (potentially) customisation."

    Maybe such things are provided in Microsoft toy-land, but when you get into big-money software updates, support and customization are almost always add-ons that cost 20-30% per annum of the original price of the software. Worse, some vendors won't let you run/use their software unless you agree to purchase (on an ongoing basis) their support/maintenance as well.

  28. Captain Thyratron
    Coat

    @AC 13:27 GMT

    Hey, now, don't give Microsoft *all* the credit. The likes of IBM and DEC were being bastards about software before the MS-DOS 5 Rap was even recorded.

    ("And anyone who's in the know knows: It's also the best DOS to run Windows!")

  29. Anonymous Coward
    Anonymous Coward

    @AC

    "If as suggested in the pystar comment above. would that not also apply to OEM windoze?"

    Shouldn't think so no, OEM Windows tends to come with hardware and is not something you go into a store to buy, so it could be argued that OEM Windows is tied to that hardware and you never own the physical media to sell on, although you could sell the computer which includes OEM Windows.

    Buying the OEM version of Windows however on disc (from somewhere like aria.co.uk) you already can transfer that to another computer, so you are able to sell it on, but once you do that it won't work on the hardware any longer.

  30. Charles 9

    @Pirate Dave

    "Worse, some vendors won't let you run/use their software unless you agree to purchase (on an ongoing basis) their support/maintenance as well."

    That means they're trying to enforce a software LEASE rather than a SALE. If they insist you sign a lease agreement BEFORE you pay for and can use their software, complete with terms and so on, that's one thing. That's a direct agreement between lessee and provider (by contract) and agreed to prior to an exchange of money or whatever. This is different from the "shrink-wrap" EULAs found in most software today, where customers may not know of the terms of the agreement prior to the exchange of money and does not put pen on paper to agree to a contract. Those two should render such terms not legally binding (since most contracts cannot be changed once money changes hands and since most contracts require an explicit signature--real or electronic).

  31. Anonymous Coward
    Anonymous Coward

    RE: Psystar, OEM Windows etc.

    IANAL but as far as I know it is entirely fair to put any conditions into a sale that are legally permitted.

    Using the [fatally flawed] Ford Fiesta argument, your Ford dealer could knock you some cash off on the condition that you can only resell the car to them and no-one else. AFAIK that would be fine, if you agreed (and you would be foolish not to insist on a fair price clause) if not you are free to not buy. If you broke this agreement you would probably be sued, and likely lose. It s feasible that the courts could force you to abide by the agreed conditions.

    Now, the differences are that in my example you would be sued under civil contract law whereas software manufacturers have lobbied to get their industry covered by criminal laws (for what should be entirely civil matters). which means they would have to take action on copyright grounds instead. Oh, by lobbied I mean "bribed politicians" of course.

    However the principle is the same: subject to unfair contract laws you are free to put any conditions you want into a purchase agreement. The onus is on you to prove breach, and then to prove a "loss" before the courts will do anything to redress that loss.

  32. Joe User
    Pirate

    The REAL piracy

    The only "piracy" here is Autodesk's prices....

  33. beboyle
    Stop

    Missing the point?

    I'm not sure it's been clearly grasped by all here that this ruling did not address the question of whether software can be licensed rather than sold, or whether EULAs are valid. In fact, the court started with the presumption that both of these are true, and ruled only on the specific wording of the Autodesk license, which it found was not sufficiently clear to make the transition a license rather than sale. This ruling is not going to have any impact whatsoever on EULAs or software licensing in general.

  34. Pirate Dave Silver badge

    @Charles 9

    Ah, you're right about LEASE as opposed to SALE. My bad. I just couldn't remember ever seeing one explicitly called a "lease" as opposed to a "purchase".

  35. _wtf_

    Psystar

    I am not a lawyer, but it seems to me that where Psystars little scheme falls down is that they are creating and distributing a derived work. They don't just onsell the box with the Apple software in it, they install it on a machine, and have dicked around with it to make it work. Now, I suspect that an individual can do that without Apple having much comeback, it is like writing extra bits in your copy of a novel. But when you start distributing such a modified work, you are breaching the copyright of the owner of the work.

  36. asdf
    Thumb Up

    love el reg

    I enjoy how depending on the contents of the article you often get experts (and yeah lol sometimes psuedo experts) in different fields such as software development, science and engineering, hardware sales and aquisition, and now lawyers reading and commenting on el reg. Often the comments are just as entertaining as the articles. Web 2.0 often overrated but people are social critters and it is good to hear from the other fields about topics.

  37. Hud Dunlap
    Headmaster

    Earliest ruling takes precedence???

    By this reasoning, Plessy V Fergusan ( Segregation is legal) takes precedence over Brown vs. Board of Education( Segregation is illegal ).

    There are other things that bother me but this sounds like a result based ruling more than reasoned law.

    And remember most rulings are written by the clerks who probably used Napster while going to law school.

  38. Charles Manning

    It depends on what rights you're buying

    So you bought something.... but what?

    If you buy a transferable right, then that's very different to buying a non-transferable right (think full fare vs non-transferrable/refundable airline ticket).

    You don't sign any EULAs for airline tickets.

    Surely so long as software vendors are upfront on what you're buying then they can sell you anything.

  39. Charles 9

    @Charles Manning

    Don't think the airline analogy works. Airline travel could be considered a SERVICE rather than a good, especially since, subject to agreement, arrangements can be changed prior to the actual flight (change seats, days, etc.). IOW, the ticket is more like acknowledgement of an APPOINTMENT.

  40. Seven_Spades

    How about books?

    The ruling is quite correct. I see no difference between the purchase of a piece of software and the purchase of a book. When you buy a book you don't have a licence to read it and if you pass it on you are breaking the law and contributing to piracy.

    What we now need is a similar ruling in Great Britain.

  41. phoenix
    FAIL

    This will Hurt

    A licence (license for our US friends) grants you the right to use the software for as long as the licence allows - usually indefinately. If I return the software and materials should I get a refund - no you have opened the licence the materials are merely means of you getting the benefit of the licence. You don't own the software that is held by the software company.

    Using cars as an alligory is analegous as cars are constructed objects not intangible design like software. This a is shift change in ownership of an object to licence of IP use rights in my mind. Software is not constructed in the traditional way it therefore it cannot be treated in the same manner.

    BTW You a re in breach of you licensing agreement in the EU and probably the US if you sell you games on as it specifically tells you there are no transfer, hire, or resale rights attributed to this software in part or full. WHY you ask? Because buying second hand software reduces the the revenue stream to the creators of those games. Royalties are only paid on the first purchase of said game and not on resale. Games are very expensive to create and market - way more than an "office" package and you pay about a tenth of the retail cost on average to own a game. So if you want a games industry stop pirating and stop selling on games as this does directly effect the developer - I work for one.

  42. Dave Bell

    Honesty

    I don't think that there is anything intrinsically wrong with licences.

    But the software business is where I first came across the "shrinkwrap license", and that's a low-down dishonest trick. But few of us can afford to take a case to court and argue the esoteric language of lawyers And, in the end, it's the ingenuity of crooks, hunting loopholes, which prompts the decisions on what a law means.

    Pity us poor honest men.

  43. Charles 9
    Thumb Down

    @phoenix

    Car dealers frequently don't get a cut of used car sales unless they do the selling THEMSELVES. Do it yourself or through an independent trader, and do the car dealers and makers get a dime? NO. It's no different with software. Software IS tangible since I can possess a CD-ROM, DVD-ROM, or whatever medium the item is distributed and then resell it. No license text can restrict that ability since that's part of First Sale Doctrine--the seller has NO RIGHTS to control my use of the property once it's out of their hands. If they want control, then they must LEASE the software and put my signature on paper BEFORE I pay a dime.

    If First Sale Doctrine can't apply to software, then they can't apply to books (since the meat of the book is the text, not the pages) can't be resold, and THAT has been established as guaranteed by the 1976 Copyright Act--otherwise, LIBRARIES couldn't exist.

  44. Anonymous Coward
    Linux

    Constructed from components !

    I read many of the above comments with interest and some with amusement. If its a contract, then I am privy to discuss, amend and agree each and every term PRIOR to signing. Also, in order to become a legal contract in the UK, a 'contract' much be fair to both parties and must not remove an otherwise legal right from either party, although it may be legal to 'modify' the circumstances under which such a legal right might apply to particular instances within the contract.

    As for the arguments about cars being made from parts and software being 'intangible', well sorry guys, but software is constructed from the parts called INSTRUCTIONS which are inherent within the microprocessor which the software is written to run on. You could liken that to an electronic circuit made from components. The components can be assembled and arranged in ways which allow electronic circuits to perform quite disparate functions, and yet be assembled from standard components. The same can be said of software. The commands are the 'standard components' and they are built into the microprocessor on which the software is designed to run.

    If I hear a piece of music, I can pick up my guitar and play the tune by ear. I can change it a bit to arrange my own version, and people still recognise it and know that I am only playing it, not claiming ownership of the original music. If I decide to buy the sheet music for the piece, then I own the paper, not the tune -- which remains the COPYRIGHT of the author. I feel free to sell the paper when I am finished with it, although from the piles of music in my place, you can see that I almost never part with music once it is in my possession. I think this also applies to books. We own the paper, not the copyright. We can tear out pages if we want -- or scribble notes over it. If the story (or technical content, in the case of a textbook) is crap, I don't seem to have any right to return it for a refund. I can if the printing is smudged or the paper not properly trimmed, though. I don't have a right to copy any of it without permission -- rightly so, its copyright !

    Arguments about onward sale of second-hand copies denying the writer further income are correct. Just as they are for a second-hand washing machine, or dare I say, a second-hand wife !! .... and a second-hand --- third-hand --- tenth-hand car !!

    I also think that some of the arguments about the originator being 'denied' income because of second-hand sales are actually incorrect. You buy a second-hand version for less than a new version. You find that its useful to you, so you will go back and buy a newer NEW version at a later date. I think those arguments also kind of deny the existence of libraries as places to keep books, lend books, refer to books you don't want to buy (can't afford to buy). People still write books and those who right good books make a great deal of money ! One thing I do notice is that a good book and a crap book don't vary in price too much, unlike software !!

    So, software!! Companies like Commodore tried to sell computers in the 70s with a ninety day guarantee. It was companies like that who brought into being the legislation called the Sale of Goods Act in the UK. Perhaps we could start by asking, why do people make illegal copies of software instead of buying it. Well, maybe you are old enough to remember an advert for a piece of software called 'The Last One' sold to run on the Commodore PET computer. This claimed to be the last piece of software you would ever need to buy, because it wrote software to do whatever you wanted !! Of course, it didn't ! The software companies make such outrageous claims about what their software does, that it becomes logical to want that confirmed prior to purchase. When you buy it, you come across the 'agreement' in which they deny that it does anything at all and then attempt to take away any and every right they think you might otherwise have. When all this started, lawyers made a lot of money trying to argue various cases about software being different from being able to be covered by COPYRIGHT LAWS alone. So the industry brought a lot onto its own head. Of course, selling a used copy of a piece of software does not contribute to piracy, if anything it has a tendency to MINIMISE piracy by making the item available at a more affordable price. When I can, I borrow or copy a piece of software so that I can try it before I buy it. If it does what I want, then I go and buy it. If it doesn't, then I wipe it from my syatem and return the copy to where I borrowed it from, or shred the CD. I don't see that as piracy, but I bet MS would because they see little pirates hiding under every leaf in the forrest --- I feel so sorry for their poor quality of life brought about by their perception of the dishonesty of all around them, or is it just that they think everyone thinks like they do !!! ?

    If you behave like shite, you WILL be perceived as shite and you WILL be flushed down the pan !!

  45. phoenix
    Stop

    @Charles9

    Charles9:

    "Software IS tangible since I can possess a CD-ROM, DVD-ROM, or whatever medium the item is distributed and then resell it. No license text can restrict that ability since that's part of First Sale Doctrine--the seller has NO RIGHTS to control my use of the property once it's out of their hands."

    Nope. No more than the relationship of water to a bucket carrying it. It is merely a method of conveying the item to you. I can't give you the source code to compile as you would be privvy to the work and ideas under IP so I have to give it you in form that you can use without allowing the former.

    "So if you want a games industry stop pirating and stop selling on games as this does directly effect the developer - I work for one."

    Nowhere there does it imply I felt software resale was piracy. I mentioned piracy and resale in the same sentence but they are only related in the matter of reduced royalities to the orginator of the artwork.

    Again the CD does not convey ownership of the art merely the transport mechinism to provide the use of said of the art (pages in book). The licence conveys / allows usage rights to the original purchaser. That is why when you say have enterprise licencing from MS you have to provide evidence of transfer of licencing to a third party, whether that party bought, or was given software for gratis. Not evidence of the means be it disk, ftp download or whatever.

  46. Ted Treen
    Coat

    Question

    Is it just me, or does anyone else feel common-sence & rationality go out of the window once m'learned friends & Your Honour get involved?

    Mine's the one with the summons for contempt of court in the pocket

  47. Charles 9

    @phoenix

    But I can still sell the bucket, the disc, or the BOOK. If you can't sell a CD, then you can't sell a BOOK (both are transport media for copyrighted material--see Copyright Act), and it's already been established through court cases that books CAN be resold (otherwise, libraries are illegal), as can music CDs. A code CD is no different. What you're failing to grasp is that First Sale is a RIGHT, not a privilege. This means it CANNOT BE BREACHED. Just as you cannot deny my freedon of speech, press, or whatever, so the Copyright Act states (through the First Sale Doctrine) that the right of a buyer to resell a copy of a copyrighted work, so long as it is sold in toto, CANNOT BE BREACHED. IOW, a shrink-wrap license that says I cannot sell the copy I bought at a store, through no prior agreement with the seller (and note carefully, the software company is a SELLER), IS ILLEGAL (because it is against the Copyright Act). Illegal contract are UNENFORCEABLE. That's what the case is all about--the LEGALITY of shrink-wrap licenses when faces with the rights contained in the Copyright Act.

  48. PT
    WTF?

    @phoenix - your "rights" as a developer

    At least you declared your interest, as a software developer. I too am a software developer and I comprehensively disagree with you.

    You may have negotiated with your employer (or yourself, if you self-publish) a right to be paid a royalty for each copy sold, but that's where your rights END, with the agreement you negotiated with the first seller. You cannot claim any "right" to control or be paid for what someone else does with your software after that first sale, no matter what imaginary rights the industry may like to claim for itself.

    Supposing instead of writing an application, you write the embedded software for (say) an MP3 player and negotiate a royalty for each unit sold. You may argue that the ROM, the PCB and the plastic case is merely a method of conveying the software, and while the purchaser has the right to sell the ROM, PCB, plastic case etc they have no right to sell the software with it.* Try taking THAT to court - we'd be laughing about it on El Reg for a year. But from a developer's point of view, there's absolutely no difference between the two cases. You develop code, you get paid for every copy sold. By the original seller, that is. End of your involvement.

    * Not that it hasn't been tried, mind you - IBM tried to impose a no-resale clause for PS/2s on the grounds that the ROM BIOS firmware was licensed and not sold. I don't know if they ever took anyone to court but if so, it would be an interesting precedent - heloooooo, OutLaw?

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