More Microsoft Crap- Buy a new motherboard, buy a new license

[Matthias99]

Okay... I don't want to jump into the flaming here, but there are essentially two separate issues being discussed:

1) Can MS sell you a 'license' for Windows that is legally bound to a particular computer (or the first computer it is installed on)?

2) Can such licensing be enforced solely by an EULA that you can only read once you've bought and started installing the product?

And it might help if the discussion is focused on one or the other. They're *not* really the same issue, although they both happened to come up together here.

My personal stance on this is that '1)' should be allowed if MS wants to market the product that way and they are clear about it, but '2)' is probably not going to stand up in court. If MS wants to sell a discounted OEM Windows that's (legally and/or activation/DRM-wise) locked to a particular computer, I have no problem with that, as long as they are clear about the terms of it up-front. I do not believe that users of software (or other IP) should automatically be granted the capability to resell that IP without restrictions, or to use it in any manner they 'feel' they are entitled to. Now, IANAL, and if a US federal court goes and rules that they are based on their interpretation of copyright law (or copyright law is changed to specify this), it's one thing, but until that happens we're all just talking opinions on this matter.

I'm not in favor of EULAs being binding contracts, but this is an area that DEFINITELY is in need of clarification legally. Copyright law starts to break down in a lot of areas once you are talking about purely virtual IP.

 

[TechnoPro]

Originally posted by: PingSpike
Why doesn't microsoft just stop selling OEM versions of windows?

Blasphemer! So the big OEMs and us little guys will have to pay full price? And Microsoft will be required to provide technical support to EVERYONE?

 

[Matthias99]

Originally posted by: PingSpike
Why doesn't microsoft just stop selling OEM versions of windows?

Mostly because it allows them to placate OEM system-builders (Dell, etc.) who would refuse to pay $100+ per licence, while still selling standalone copies of the OS for a higher price.

They don't want to flood the market with cheap copies of the OS that can be freely moved around or resold; from a marketing standpoint, this kind of licensing makes a lot of sense.

 

[doornail]

Originally posted by: Smilin
Keep in mind the "doctrine of first sale" only applies to actually selling something. Windows is not being sold here, just a license to use it.

When I buy a bookshelf nothing prevents me from building and selling bookshelves. I can't duplicate the bookshelf, so it's a non-issue.

I can duplicate paperbacks. Therefore copyright exists to protect the rights of the author.

Your response is one that is being conditioned into the mentally of consumers that is really a form of misdirection. I choose the examples above (a game and a music cd) for this very reason. All of these are examples of copyrighted works. Software companies want you believe that you magically have far fewer rights because you're buying a "license" but that's bunk. You have a CD containing a copyrighted work that you paid for. It's your property.

If they sat each customer down with lawyers and drew up a contract for every sale, sure then they can limit rights by mutual agreement. If they want to sell stuff on the shelf at Wal*Mart then it's like music cd, game, or a book.

 

[Smilin]

Originally posted by: doornail

Originally posted by: Smilin
Keep in mind the "doctrine of first sale" only applies to actually selling something. Windows is not being sold here, just a license to use it.

When I buy a bookshelf nothing prevents me from building and selling bookshelves. I can't duplicate the bookshelf, so it's a non-issue.

I can duplicate paperbacks. Therefore copyright exists to protect the rights of the author.

Your response is one that is being conditioned into the mentally of consumers that is really a form of misdirection. I choose the examples above (a game and a music cd) for this very reason. All of these are examples of copyrighted works. Software companies want you believe that you magically have far fewer rights because you're buying a "license" but that's bunk. You have a CD containing a copyrighted work that you paid for. It's your property.

If they sat each customer down with lawyers and drew up a contract for every sale, sure then they can limit rights by mutual agreement. If they want to sell stuff on the shelf at Wal*Mart then it's like music cd, game, or a book.

Judges words, not mine I have my own opinions on it but this is the law.

"The first sale doctrine is only triggered by an actual sale. Accordingly, a copyright owner does not forfeit his right of distribution by entering into a licensing agreement." Id

See the somewhat long quoted post and link I provided on last page.

 

[TechnoPro]

Originally posted by: Smilin

Originally posted by: doornail
Q) Can I re-sell my copy of Windows?
A) Under the doctrine of first sale yes, according to a "wish list" that momentarily pauses my install process, no.

Sure you can. Why not? If it's retail just uninstall it and sell the thing. If it's OEM, just sell the computer it's bound to.

Keep in mind the "doctrine of first sale" only applies to actually selling something. Windows is not being sold here, just a license to use it.


I think Kibbo probably said this best:
"[customers] don't want to be told 1 year after the purchase that there are limitations to the service they originally bought."

Folks get a great deal when purchasing OEM but they never seem to scratch their heads and say, "Why is this deal so good? What is the catch?". No such thing as a free lunch right? It's not that OEM is a bad deal it's just that peoples expectations about it detatch from reality because nobody wants to read legal mumbo jumbo. I blame the lawyers for this and most of the world's problems.

Smilin, humor me for a minute. When I think about something that is not sold, but rather licensed for use, I immediately think about a rental car. You're given possession of the vehicle and virtually free reign over where and when you can use it. All for an agreed upon price. This is all formalized through a contract that must be signed prior to delivery of the car.

When you buy Windows, OEM or retail, you pay for the product, get the goods, and only at the point of installation are you then given conditions for its licensed use, resale, etc.

In every other business transaction that I can think of, the terms of the deal are stated up front, before money or goods change hands. This is especially true for licensiong vs. sale transactions. When you license the use of something, anything, the licensing terms are spilled out prior to the deal taking place.

Now, if Microsoft were to mandate that all OEMs and OEM software resellers would make these terms CRYSTAL clear prior to purchase, I think much of the issue would be resolved right there. People might not agree with the terms, but there would be no questioning that they were conditions of the sale.

Should MS employ something like this?

 

[Smilin]

I provided a link to a very specific case regarding Copyright and shrinkwrap EULAs. PLEASE read the whole pdf I provided so I don't keep requoting it to answer the same questions over and over. Thanks!

It's not an entirely dry read either


It all kinda boils down to something real simple I think:

If someone like blizzard has the copyright on something they can choose to sell it or not sell it. They can also choose to sell a *revokable* and *conditional* license if they so choose. They can also choose to sell the license under a contract (eula). As long as the contract is not unconscionable that's the end of the story. It is their intellectual property and they can do what they want with it. If they want to be bitter at all of mankind and not let anyone use it they can do that too. We can stomp around mad all day long and make wild speculation about what is and what is not legal but as shown in the case I provided: Challenge this in court and you'll lose.

As consumers we have one right that trumps all: We don't have to buy it at all.

 

[Matthias99]

Originally posted by: doornail

Originally posted by: Smilin
Keep in mind the "doctrine of first sale" only applies to actually selling something. Windows is not being sold here, just a license to use it.

All of these are examples of copyrighted works. Software companies want you believe that you magically have far fewer rights because you're buying a "license" but that's bunk. You have a CD containing a copyrighted work that you paid for. It's your property.

The problem is that the 'CD' itself is meaningless; all you've really bought is a license key, which happens to come with a copy of the software as well. You're somehow looking at the fact that you got the key (which happened to be bundled with a CD) in a box on a store shelf and deciding that this means you automatically get extra rights along with it, or that there cannot be a different licensing model for it.

If they sat each customer down with lawyers and drew up a contract for every sale, sure then they can limit rights by mutual agreement. If they want to sell stuff on the shelf at Wal*Mart then it's like music cd, game, or a book.

I don't see why it being sold 'on the shelf' affects it in the least.

Now, if you want to argue that they should have to tell you about such limitations before you buy the product, then that's one thing, but saying that you cannot put restrictions on software licensing is quite another.

 

[Smilin]

Originally posted by: TechnoPro

Originally posted by: Smilin

Originally posted by: doornail
Q) Can I re-sell my copy of Windows?
A) Under the doctrine of first sale yes, according to a "wish list" that momentarily pauses my install process, no.

Sure you can. Why not? If it's retail just uninstall it and sell the thing. If it's OEM, just sell the computer it's bound to.

Keep in mind the "doctrine of first sale" only applies to actually selling something. Windows is not being sold here, just a license to use it.


I think Kibbo probably said this best:
"[customers] don't want to be told 1 year after the purchase that there are limitations to the service they originally bought."

Folks get a great deal when purchasing OEM but they never seem to scratch their heads and say, "Why is this deal so good? What is the catch?". No such thing as a free lunch right? It's not that OEM is a bad deal it's just that peoples expectations about it detatch from reality because nobody wants to read legal mumbo jumbo. I blame the lawyers for this and most of the world's problems.

Smilin, humor me for a minute. When I think about something that is not sold, but rather licensed for use, I immediately think about a rental car. You're given possession of the vehicle and virtually free reign over where and when you can use it. All for an agreed upon price. This is all formalized through a contract that must be signed prior to delivery of the car.

When you buy Windows, OEM or retail, you pay for the product, get the goods, and only at the point of installation are you then given conditions for its licensed use, resale, etc.

In every other business transaction that I can think of, the terms of the deal are stated up front, before money or goods change hands. This is especially true for licensiong vs. sale transactions. When you license the use of something, anything, the licensing terms are spilled out prior to the deal taking place.

Now, if Microsoft were to mandate that all OEMs and OEM software resellers would make these terms CRYSTAL clear prior to purchase, I think much of the issue would be resolved right there. People might not agree with the terms, but there would be no questioning that they were conditions of the sale.

Should MS employ something like this?

Again I blame the lawyers

Do you mean crystal clear or absolutely precise?

Crystal clear to me would be a EULA that was about 4-5 sentences long. This isn't going to be very precise though and some lawyer would chew it up or find a loophole.

I don't think it's the big name OEMs that are screwing this up. Heck Dell and competitors pretty much make it so you can't break the OEM EULA by pre-loading it and all that (rebuild, recovery console and other hassles aside - don't get me started griping about that)

I think it's newegg and such that are screwing it up. The whole IDE Cable=computer thing is a crock. It misleads the consumer and sometime later when the facts of the deal are presented to them they get pissed at MS and not newegg.

Folks sometimes gripe about the EULA being presented to you after you get home - it's a matter of practicality. There simply isn't enough room on the box for the whole thing (blame lawyers). Instead you get something like "must accept eula" on outside. As long as you are allowed a refund if you don't accept it, no harm no foul. This has been held up in court too... same case I cited earlier.

 

[Genx87]

Uh these are OEM licenses, not volume or retail.

OEM licenses are by nature not transferrable.

 

[TechnoPro]

Originally posted by: Genx87
Uh these are OEM licenses, not volume or retail.

OEM licenses are by nature not transferrable.

So Dell PCs that are sold from one individual to another are in violation should the seller leave the OS on the system and include the OS CD?

 

[smack Down]

Originally posted by: Matthias99

Originally posted by: doornail

Originally posted by: Smilin
Keep in mind the "doctrine of first sale" only applies to actually selling something. Windows is not being sold here, just a license to use it.

All of these are examples of copyrighted works. Software companies want you believe that you magically have far fewer rights because you're buying a "license" but that's bunk. You have a CD containing a copyrighted work that you paid for. It's your property.

The problem is that the 'CD' itself is meaningless; all you've really bought is a license key, which happens to come with a copy of the software as well. You're somehow looking at the fact that you got the key (which happened to be bundled with a CD) in a box on a store shelf and deciding that this means you automatically get extra rights along with it, or that there cannot be a different licensing model for it.

If they sat each customer down with lawyers and drew up a contract for every sale, sure then they can limit rights by mutual agreement. If they want to sell stuff on the shelf at Wal*Mart then it's like music cd, game, or a book.

I don't see why it being sold 'on the shelf' affects it in the least.

Now, if you want to argue that they should have to tell you about such limitations before you buy the product, then that's one thing, but saying that you cannot put restrictions on software licensing is quite another.

Like you said Buy.

You can license software putting on the self at wal-mart is not licensing it that is selling.

 

[stash]

Originally posted by: TechnoPro

Originally posted by: Genx87
Uh these are OEM licenses, not volume or retail.

OEM licenses are by nature not transferrable.

So Dell PCs that are sold from one individual to another are in violation should the seller leave the OS on the system and include the OS CD?

No. OEM licenses by themselves are not transferrable. You can transfer the license provided that the hardware the came with the license is also transferred. That's my understanding, anyway.

 

[TechnoPro]

Originally posted by: stash

Originally posted by: TechnoPro

Originally posted by: Genx87
Uh these are OEM licenses, not volume or retail.

OEM licenses are by nature not transferrable.

So Dell PCs that are sold from one individual to another are in violation should the seller leave the OS on the system and include the OS CD?

No. OEM licenses by themselves are not transferrable. You can transfer the license provided that the hardware the came with the license is also transferred. That's my understanding, anyway.

That's my understanding as well. I was simply pointing out that Genx87's assertion, as stated, was not clear and could easily be misconstrued.

 

[stash]

I was simply pointing out that Genx87's assertion, as stated, was not clear and could easily be misconstrued.

Yes, good point.

 

[Armitage]

Originally posted by: Smilin
Oh, and before I'm banned lemme add some food for thought to the discussion. Not everyone may agree with me but at least a Judge does:
http://www.eff.org/IP/Emulation/Blizzard_v_bnetd/20040930BNETDOrder.pdf

In this contract claim, the plaintiffs are alleging that the contract creates a right not existing
under copyright law, a right based upon defendants? agreement to the EULA and TOU with Blizzard.
The Court agrees that the contractual restriction does create a right not existing under copyright law.
The right created is the right to restrict the use of the software through the EULAs and TOU. ?Absent
the parties' agreement, this restriction would not exist. The contractual restriction on use of the
programs constitutes an extra element that makes this cause of action qualitatively different from one
for copyright.? Id. at 433. Therefore, the Court finds that the EULA and TOU are not statutorily
preempted by the Copyright Act.

The Court finds the EULAs and TOU are enforceable under the UCC. First, the defendants
did not purchase the Blizzard software, rather they purchased a license for the software. A sale
consists in the passing of title from the seller to the buyer. Mo. Rev. Stat. § 400.2-106(1) (2000).
When defendants purchased the games, they bought a license to use the software, but did not buy the software. Defendants' argument parallels the "first sale doctrine," although defendants do not use this
term.

Under the first sale doctrine, "a sale of a lawfully made copy terminates a copyright holder's
authority to interfere with subsequent sales or distribution of that particular copy." Adobe Sys. Inc.,
84 F.Supp.2d at 1089 (citations omitted). "The first sale doctrine is only triggered by an actual sale. Accordingly, a copyright owner does not forfeit his right of distribution by entering into a licensing agreement." Id. Section 117 of the Copyright Act provides that copies of computer programs may
be "leased, sold, or otherwise transferred . . . only with the authorization of the copyright owner." 17
U.S.C. § 117(b).
To apply the first sale doctrine and the exceptions of § 117, there must
be an authorized transfer of ownership. Either a licensee can never be
the owner of a copy for purposes of § 117 or ownership of the licensed
copy depends on the terms of the license agreement. First, it must be
determined what are the express terms of the contract? When license
terms provide that ownership of the copy remains in the copyright
owner, they preclude the transfer of title to the copy of the license.
Raymond T. Nimmer, LAW OF COMPUTER TECHNOLOGY: RIGHTS LICENSES LIABILITIES § 7:69 (3d
ed. 2003)

Although I welcome other's discussion: Larry if you wish to get along with me at any point in the future, please refrain from replying to this post. It is your choice of course.

Since we're quoting court cases, take a look at this one: Softman vs. Adobe - 2001

Basically Softman was buying bundles of Adobe software, breaking them up, and reselling the pieces. Adobe got cranked because this was a violation of the EULA. Softman asserted first sale doctrine an the case was decided in Softman's favor. It helped that Softman never installed any of the software, and so never clicked through the EULA.

Beyond the cliff's notes, there are some interesting statements:

The doctrine has been codified at 17 U.S.C. 109(a). It states in relevant part: "the owner of a particular copy . . . lawfully made under this title . . . is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy." 17 U.S.C. § 109(a). One significant effect of § 109(a) is to limit the exclusive right to distribute copies to their first voluntary disposition, and thus negate copyright owner control over further or "downstream" transfer to a third party. Quality King Distrib. v. L'Anza Research Int'l, Inc., 523 U.S. 135, 142-44 (1998). (See Rice Decl. ¶ 11.) The first sale doctrine vests the copy owner with statutory privileges under the Act which operate as limits on the exclusive rights of the copyright owners.

My interpretation of this is that first sale trumps EULA.

Adobe argues that the first sale doctrine does not apply because Adobe does not sell or authorize any sale of its software. Adobe characterizes each transaction throughout the entire stream of commerce as a license.8 Adobe asserts that its license defines the relationship between Adobe and any third-party such that a breach of the license constitutes copyright infringement. This assertion is not accurate because copyright law in fact provides certain rights to owners of a particular copy. This grant of rights is independent from any purported grant of rights from Adobe. The Adobe license compels third-parties to relinquish rights that the third-parties enjoy under copyright law.

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.

This seems to say - license or not, if you own a copy you have certain rights under copyright. Then it goes on to cite previous cases which conclude this is infact a sale, not a licensing agreement - a few sound bites...

Because we look to the economic realities of the agreement, the fact that the agreement labels itself a "license" and calls the payments "royalties," both terms that arguably imply periodic payment for the use rather than sale of technology, does not control our analysis.

Like Adobe, CPU argued that it purchased the software from an authorized source, and was entitled to resell it under the first sale doctrine. Novell claimed that it did not sell software but merely licensed it to distribution partners. The court held that these transactions constituted sales and not a license, and therefore that the first sale doctrine applied. 2000 U.S. Dist. Lexis 9975 at *18.

Adobe frames the issue as a dispute about the ownership of intellectual property. In fact, it is a dispute about the ownership of individual pieces of Adobe software. Section 202 of the Copyright Act recognizes a distinction between tangible property rights in copies of the work and intangible property rights in the creation itself.11 In this case, no claim is made that transfer of the copy involves transfer of the ownership of the intellectual property within. (See SoftMan's Suppl. Brief at 9-10) ("Adobe has ownership rights in the copyright of [its] software.").) What is at stake here is the right of the purchaser to dispose of that purchaser's particular copy of the software.

The Court finds that the circumstances surrounding the transaction strongly suggests that the transaction is in fact a sale rather than a license. For example, 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.

Ownership of a copy should be determined based on the actual character, rather than the label, of the transaction by which the user obtained possession. Merely labeling a transaction as a lease or license does not control. If a transaction involves a single payment giving the buyer an unlimited period in which it has a right to possession, the transaction is a sale. In this situation, the buyer owns the copy regardless of the label the parties use for the contract. Course of dealing and trade usage may be relevant, since they establish the expectations and intent of the parties. The pertinent issue is whether, as in a lease, the user may be required to return the copy to the vendor after the expiration of a particular period. If not, the transaction conveyed not only possession, but also transferred ownership of the copy.

And a section title "Shrinkwrap licenses in general"

Whether contracts such as Adobe's EULA, often referred to as "shrinkwrap" licenses, are valid is a much-disputed question.15 A number of courts that have addressed the validity of the shrinkwrap license have found them to be invalid, characterizing them as contracts of adhesion, unconscionable, and/or unacceptable pursuant to the Uniform Commercial Code. Step-Saver, 939 F.2d 91; Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (Sth Cir. 1988). These courts have refused to recognize a bargain in shrinkwrap license that is not signed by the party against whom it is enforced. In Step-Saver, the Third Circuit found that the terms of a contract were formed when the parties shipped, received and paid for the product. Therefore, the software shrinkwrap agreement constituted additional terms to the contract, and under Uniform Commercial Code § 2-207 (governing commercial counter-offers), these terms were invalid without express assent by the purchasex. In contrast, other courts have determined that the shrinkwrap license is valid and enforceable. ProCD, 86 F.3d at 1453; Harmony, 846 F. Supp. at 212.

So, it's still up in the air and this case didn't offer an opinion on it because Softman never actually saw or assented to the EULA

And finally:

SoftMan is an "owner" of the copy and is entitled to the use and enjoyment of the software, with the rights that are consistent with copyright law. The Court rejects Adobe's argument that the EULA gives to purchasers only a license to use the software.

Again, it doesn't address the validity of the EULA as a contract, but it does state pretty strongly that this is a copy for copyright purposes (first sale, fair use, etc.) and not a license. This seems to be in contrast to the Blizzard case so maybe at some point the courts will clarify. Hopefully a clarification that will assert stronger consumer rights.

Also note that the Blizzard case was regarding reverse engineering, DMCA circumvention, etc. It seems Postman vs. Adobe may be more relavent to the OP (reselling/transferring/reinstalling OEM software).

Of course, the peope generally subject to this are small fry and not likely to go up against MS in court. The bigger fish have corporate licenses and such and so aren't affected.

 

[RVN]

It seems like they're changing rules mid-stream to better suit themselves.

MS needs to offer refunds to their customer's who bought OEMs on the principle that the consumer purchased a product that after-the-fact became a mis-representation of what it was originally sold as. This is akin to changing the terms of a warranty or an insurance policy only to benefit themselves and disadvantage the buyer/owner.

 

[Matthias99]

Originally posted by: smack Down
Like you said Buy.

You can license software putting on the self at wal-mart is not licensing it that is selling.

The only thing you are "buying" is a license key, which happens to come in a pretty box with a 'certificate of authenticity' and a copy of the OS for your convenience. Putting it in a box and on a store shelf doesn't change the licensing of the software.

IMO, anyway. Even the courts seem somewhat divided on this one, based on some of the stuff posted in this thread.

 

[Armitage]

Originally posted by: Matthias99

Originally posted by: smack Down
Like you said Buy.

You can license software putting on the self at wal-mart is not licensing it that is selling.

The only thing you are "buying" is a license key, which happens to come in a pretty box with a 'certificate of authenticity' and a copy of the OS for your convenience. Putting it in a box and on a store shelf doesn't change the licensing of the software.

See my overly long post above - the courts have generally agreed that it is a sale of a copy, and thus subject to first sale doctrine. Not a license.

 

[Armitage]

What would be interesting to test this in the courts...

Start a business which buys OEM copies of windows - from people using an alternate OS, disposing of old systems, etc. And then reselling them. Of course it's going to bring a sh|tstorm of MS lawyers down on your head. Maybe if I win the lottery it might be a fun side project between trips to the south pacific

 

[Matthias99]

Originally posted by: Armitage

Originally posted by: Matthias99

Originally posted by: smack Down
Like you said Buy.

You can license software putting on the self at wal-mart is not licensing it that is selling.

The only thing you are "buying" is a license key, which happens to come in a pretty box with a 'certificate of authenticity' and a copy of the OS for your convenience. Putting it in a box and on a store shelf doesn't change the licensing of the software.

See my overly long post above - the courts have generally agreed that it is a sale of a copy, and thus subject to first sale doctrine. Not a license.

Yeah, you posted that while I was replying.

However, from your very post:

In contrast, other courts have determined that the shrinkwrap license is valid and enforceable. ProCD, 86 F.3d at 1453; Harmony, 846 F. Supp. at 212.

So there's really no clear ruling on this issue.

IMO (which is definitely only an opinion), I actually feel that all IP "sales" should actually be what are now referred to as "licenses" (unless you are actually buying/selling the rights to the IP itself), which addresses a lot of the problems you start running into wrt to copyright law and 'pure' IP. Of course, it raises new issues as well, and this would be a significant break from current copyright law.

 

[scottws]

Originally posted by: Matthias99
IMO (which is definitely only an opinion), I actually feel that all IP "sales" should actually be what are now referred to as "licenses" (unless you are actually buying/selling the rights to the IP itself), which addresses a lot of the problems you start running into wrt to copyright law and 'pure' IP. Of course, it raises new issues as well, and this would be a significant break from current copyright law.

Thank you for sharing your opinion, but I wholeheartedly disagree. To support such a shift would be essentially flushing a couple hundred years of hard fought consumer rights down the toilet.

I'm all for business being able to make a fair profit in the market, but I think fair is the key word there. They shouldn't be allowed to do whatever the heck they want by sidestepping consumer protection laws and the UCC - which is what software companies are trying to do with their EULAs.

 

[Armitage]

Originally posted by: Matthias99

Originally posted by: Armitage

Originally posted by: Matthias99

Originally posted by: smack Down
Like you said Buy.

You can license software putting on the self at wal-mart is not licensing it that is selling.

The only thing you are "buying" is a license key, which happens to come in a pretty box with a 'certificate of authenticity' and a copy of the OS for your convenience. Putting it in a box and on a store shelf doesn't change the licensing of the software.

See my overly long post above - the courts have generally agreed that it is a sale of a copy, and thus subject to first sale doctrine. Not a license.

Yeah, you posted that while I was replying.

However, from your very post:

In contrast, other courts have determined that the shrinkwrap license is valid and enforceable. ProCD, 86 F.3d at 1453; Harmony, 846 F. Supp. at 212.

So there's really no clear ruling on this issue.

Not on the issue of the validity of EULAs. But it seems pretty clear on the sale vs. license question.

IMO (which is definitely only an opinion), I actually feel that all IP "sales" should actually be what are now referred to as "licenses" (unless you are actually buying/selling the rights to the IP itself), which addresses a lot of the problems you start running into wrt to copyright law and 'pure' IP. Of course, it raises new issues as well, and this would be a significant break from current copyright law.

Yep - it would pretty much completly gut it. Copyright law goes both ways - protections of IP holders, and protection of the public. By saying all sales of software is a license instead of a sale subject to copyright law, you remove all consumer protection. This is the defacto standard right now with the status of EULAs being substantially up in the air. I'm hoping it will come down on the side of consumer rights, as copyright is already heavily slanted toward the IP holder.

Yet another quote:

The Court finds that the provisions contained in Adobe's EULA purport to diminish the rights of customers to use the software in ways ordinarily enjoyed by customers under copyright law. Therefore, these restrictions appear to be inconsistent with the balance of rights set forth in intellectual property law.19 Commentators have noted that the arguments for enforcing this balance are particularly persuasive in the context of shrinkwrap licenses because the balance of rights in intellectual property law is already tilted heavily in favor of the intellectual property owner. "The only countervailing forces favoring users are those rights specifically granted to users by federal law. In this context more than any other, therefore, it is justifiable to fear that removing or eviscerating those user rights may bring the whole edifice crumbling down."

This is an area fraught with conflicting policy considerations. Software publishers are desirous of augmenting the protections offered under copyright law. In this case, through the use of licensing, Adobe seeks a vast and seemingly unlimited power to control prices and all channels of distribution. On the other hand, in the absence of copyright law violations, the market can often best regulate prices and all subsequent transactions that occur after the first sale. Sound policy rationales support the analysis of those courts that have found shrinkwrap licenses to be unenforceable. A system of "licensing" which grants software publishers this degree of unchecked power to control the market deserves to be the object of careful scrutiny.

Oooo ... here's another juicy bit

Scholars have suggested that Congress contemplated that parties might attempt to contract out of a first sale right. "Congress was explicit in the context of section 109(a) that it intended for vendors who 'contract around, the first sale doctrine to be limited to contract remedies. The approach of shrinkwrap licenses - to attempt to extend vendor rights by contract while retaining the panoply of copyright remedies - was explicitly disavowed by the Committee Note." Mark A. Lemley, Intellectual Property and Shrinkwrap Licenses, 68 S. Cal. L. Rev. 1239, 1283 (1995) (citing H.R. Rep. 94-1476 (1976) (providing that the parties may contract around the first sale doctrine in 17 U.S.C. 109(a), but limiting the copyright owner to contract rather than copyright remedies if they do so)).

What this seems to say is that you can assert additional conditions by contract (EULA) but if you do so, you waive your protections under copyright.

 

[cubby1223]

ACTUALLY - couple days ago I did a repair install on a Dell machine to fix a Windows installation, and during re-activation, Microsoft is now requesting you to tell the rep the make and model of the machine, and repeat the entire product key over the phone to them (just be glad they're not making it exact - just imaging how long it would take to make sure every letter is clearly spoken through the phone).

 

[scottws]

Originally posted by: cubby1223
just be glad they're not making it exact - just imaging how long it would take to make sure every letter is clearly spoken through the phone).

alpha bravo charlie delta echo etc.