District Court Denies Injunction Against Unbundling 11
poemofatic writes: "The ruling posted on Cryptome of a disctrict court ruling denying an preliminary injunction against Softman Products Co. Softman "unbundles" and resells at a lower price stuff like photoshop. But of importance to us is that the court upholds the principle of first sale, and invalidates Adobe's claims that Softman is bound to Adobe's EULA. Here's a choice quote: '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.'"
Some Choice Quotes (Score:4, Interesting)
IANAL, but this seems like they are basically making a tentative claim towards the illegitimacy of "licensing" software in general. This appears absolutely _huge_! The Doctrine of First Sale is might be back
"... 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 purchaser."
Again IANAL, but if I understand correctly they are saying that even if software is transacted through "licenses" and EULA's instead of actual sale, then the EULA's are not a valid agreement because strong assent is not given by both parties.
"The Court finds it unnecessary to reach the question of the general validity of shrinkwrap licenses at this stage because the Court has determined that SoftMan is not bound by the EULA because there was no assent to its terms."
According to the court Adobe is not likely to win on the merits and even if they were the court believes the transaction is a sale and governed by the Doctrine of First Sale and that EULA's are not enforceable contracts because they lack strong assent.
Re:Some Choice Quotes (Score:1)
I wonder why a story this big isn't on the front page?
Re:Some Choice Quotes (Score:4, Interesting)
But unfortunately, not all of those choice comments are so important, since this was a district court ruling on a preliminary injunction, not on the case itself, so those comments don't carry as much legal "weight."
The main point for me is that it shows we have some friendly judges here in CA. Hopefully, they will get to rule on actual cases such as this one sometime soon. I'm holding my fingers crossed that UCITA-like acts will get partially struck down on the basis of violating the first-sale principle. Just a wish.
Re:Some Choice Quotes (Score:1)
Re:Some Choice Quotes (Score:2)
If it is sold like a toaster, then the judge is correct. That is pretty cut and dried. If you buy a car, you are free to pull the engine and sell it to someone else. The other two are still in the air. It's like getting satelite TV, and getting a package deal where the 1st year of subscription is cheap on the condition of purchase of the dish, getting the dish and reselling the service without the dish to someone else. Is the software a service? Can a service be tied to a hardware sale? Can the software/service be resold seprate from the hardware?
Re:Some Choice Quotes (Score:3, Insightful)
This isn't really disputing the legitimacy of licensing per se, but rather suggests that "shrinkwrap licenses" aren't really "licenses" in the traditional sense. It seems that they are taking the view that the classic shrinkwrap license, because it is good indefinitely, isn't really a "license" at all, but is instead more of a sales contract.
Why we have to fight UCITA (Score:2, Interesting)
So, does this mean... (Score:1, Interesting)
Re:So, does this mean... (Score:2)
Re:So, does this mean... (Score:2)
Same goes to purchasing a new PC. The vendor can bundle anything she wants. The news is that you CAN sell your OEM version of [Insert name of crappy OS here] no matter what the EULA says.