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The Courts Software Technology

Court Rules For Software Ownership Over Licensing 177

Posted by kdawson
from the broke-it-you-bought-it dept.
valderost writes "Out-law.com reports on a finding of the US District Court for the Western District of Washington, in favor of an individual reselling Autodesk's AutoCAD software in 'his claim that he owned the software and had the right to sell it on.' The decision hinges on some technicalities in the Autodesk license and conflicting precedents involving a Vanessa Redgrave film, but it's good news for the idea that a software purchase is just that. 'The Court said that it had to follow [the film] case's precedent because it was older than another conflicting ruling, and that it could not choose a precedent based on the most desirable policy. "The court's decision today is not based on any policy judgment. Congress is both constitutionally and institutionally suited to render judgments on policy; courts generally are not," the Court ruled. "Precedent binds the court regardless of whether it would be good policy to ignore it."'"
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Court Rules For Software Ownership Over Licensing

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  • Err... (Score:5, Insightful)

    by QuoteMstr (55051) <dan.colascione@gmail.com> on Wednesday October 07, 2009 @12:41AM (#29666727)

    So the court, by mentioning the dictates of precedent in the first place, is implying that it thinks licensing is the preferred policy? How on earth is that pro-precedent and policy-neutral?

    • by QuantumG (50515) *

      the finding does kinda sound like "we can't fix this loophole in this court, but try a higher court!"

    • Re:Err... (Score:5, Interesting)

      by JoshuaZ (1134087) on Wednesday October 07, 2009 @12:50AM (#29666787) Homepage
      No, the court is saying that it isn't expressing any opinion about what the law should be and is making that point very clear, probably so that no one will mistakenly point to this as a precedent of a court deciding that the law should be this way for software.
      • by RichiH (749257)

        Dunno, while re-reading and re-reading the quotes I can not decide if they want to be as neutral as possible or if they would have preferred licensing. While I am not sure, I think they meant the latter.

        • It seems everyone is trying to strip-away our property rights.

          If you buy a physical object, it's yours to do with it what you wish, including selling the object to the next person, via garage sale or ebay. I can understand why organizations like RIAA want to strip-away our property so they can make themselves richer, but not the judges. Judges should be on the side of the People and protecting our rights.

          • by plague3106 (71849)

            Ugh... what nonsense. Nobody is trying to strip away your property rights. But the fact remains its whats ON the disc that you care to purchase, NOT the disc itself.

            You can't hold software in your hand; you can only hold the media on which its stored.

            If you want a blank disc, they are available, and no one is debating your right to own blank discs.

            • by jedidiah (1196)

              It's not nonsense at all. "Property rights" are what makes this whole thing work. We can own
              things and our toils will help enable that. If we work harder, we might be able to own more
              or better things. Eventually those things might be valuable enough that we don't have to work
              at all and our things do all the work for us.

              This is one way you get ahead in capitalism.

              The promise of this is what keeps the drone, peons and proles with their shoulder to the grindstone.

              This same principle is what motivates the Dells

            • Re: (Score:3, Insightful)

              by cduffy (652)

              Why would you not let folks own outright disks containing copyrighted software as well?

              Just because I own a disk doesn't mean I own the copyright to the software on the disk, and that copyright prevents me from making copies (or public performances, or several other things explicitly listed by copyright law) without paying the copyright owner for permission to do so. While it does permit restrictions on making of copies, public performance, preparation of derivative works and the like, however, copyright la

              • Re: (Score:3, Interesting)

                >>>Just because I own a disk doesn't mean I own the copyright to the software on the disk

                That's one hundred percent true. Except when I sell my DVD of Word 2003 in my annual garage cleanup sale, I am NOT making a copy, therefore the copyprivilege has no relevance to this discussion.

                >>>this is why Autodesk has resorted to licensing to do so.

                Then they are guilty of FALSE ADVERTISING. They called it a "purchase" when in fact it was just a rental. Perhaps it's time for us customers to file

            • >>>You can't hold software in your hand; you can only hold the media on which its stored.
              >>>If you want a blank disc, they are available, and no one is debating your right to own blank disc

              I can't believe you're serious. (Trolling perhaps?) You didn't say it outright, but it's pretty clear you believe I can not sell my DVD of Final Fantasy 12, MS Word 2003, or Autodesk to another citizen. THAT is a violation of my property rights. If the manufacturers are going to RENT the software the

    • Re:Err... (Score:4, Informative)

      by Anonymous Coward on Wednesday October 07, 2009 @01:08AM (#29666869)

      So the court, by mentioning the dictates of precedent in the first place, is implying that it thinks licensing is the preferred policy?

      The Court was almost certainly responding to arguments put by both parties that were policy based. It was politely pointing out the reason why it just ignored all those arguments from both sides and focused purely on what the precedents say. Because that's the Court's job. In particular to the losing party it amounts to "and if you don't like it, go and bother your mom^WCongress instead".

      Would have to read the full decision and/or the filingd by the parties to be sure though.

    • Re:Err... (Score:4, Insightful)

      by Anonymous Coward on Wednesday October 07, 2009 @01:43AM (#29667039)

      I interpret that as the judge answering an argument by the losers.

      Most likely Autodesk argued that full ownership of software would hurt it's business. The article says as much, if you read between the lines. Of course, they neglected to mention that a mere license model hurts consumers, but since the court rejected the argument anyway, it's all good.

      • a mere license model hurts consumers...

        How does a license model hurt consumers? In this case, the only consumer that was protected was the guy who was selling copies of Autodesk on eBay. Since none of the consumers who bought these copies could authorize them, they were hurt by the seller violating the terms of the license agreement, and by the court for not protecting their consumer rights.

        Most Electronic Design Automation software is licensed not sold. No one believes that they **BUY** a copy of Syno

    • by mrmeval (662166)

      They court is chomping at the precedent bit in it's slobbering mouth to rule AGAINST the owner.

      I say we put the horse down.

    • by b4dc0d3r (1268512)

      I read it as "Change the EULA and try again, AutoDesk."

      "The Autodesk License is a hodgepodge of terms that, standing alone, support both a transfer of ownership and a mere license," said the ruling. "Autodesk expressly retains title to the 'Software and accompanying materials,' but it has no right to regain possession of the software or the 'accompanying materials'. Licensees pay a single up-front price for the software. Autodesk can require the destruction of the software, but only as consideration in the

    • by Thanshin (1188877)

      No, they still mean you can achieve victory by a large margin over the movie, on DVD.

      What's still unclear is the game you and the movie are expected to play, but I think it's one that involves paying large amounts of money.

  • Sweet! (Score:3, Interesting)

    by SheeEttin (899897) <sheeettin@g[ ]l.com ['mai' in gap]> on Wednesday October 07, 2009 @12:43AM (#29666739) Homepage
    Sweet! Now maybe we can affirm that we actually own things we purchase, and companies like Nintendo will stop stuffing up things like homebrew.
    • Re:Sweet! (Score:5, Insightful)

      by Okind (556066) on Wednesday October 07, 2009 @12:56AM (#29666817) Homepage

      Exactly: the ruling said that selling software second-hand is entirely legal. Of course, the software is still covered by copyright and it's license, so you're really selling the license.

      By effectively upholding the first sale doctrine, this judge did the right thing.

      • by Rekolitus (899752) *

        Of course, the software is still covered by copyright and it's license, so you're really selling the license.

        False. A second hand sale involves the sale of physical property. There is no exception for software. A "license" can refer to many things; in the context of software it tends to refer to a fictional concept created by the software industry, the implication being that one is required, typically per user, or even per feature. However, a second-hand copy of a piece of software is a lawfully produced co

    • Re:Sweet! (Score:5, Insightful)

      by binarylarry (1338699) on Wednesday October 07, 2009 @01:02AM (#29666841)

      Has Nintendo legally gone after anyone for homebrew?

      Simply not supporting the use or installation of it nor fixing damage resulting from it isn't the same thing as taking people to court.

      • Re: (Score:2, Interesting)

        by Anonymous Coward

        I actually develop games for Nintendo systems professionally. I got my start in the industry through homebrew. It's always been my belief that Nintendo actually LIKES homebrew on their consoles. It serves to train people on how to use their hardware. The problem is that it also usually means copyright infringement. They would take a lot of heat from the 3rd parties and their shareholders if they didn't at least put on a good show of fighting it.

      • Has Nintendo legally gone after anyone for homebrew?

        Naw, last I heard they keep their lawyers super busy [penny-arcade.com] going after people who mention their favorite Nintendo games in their online profiles [penny-arcade.com].

  • Oh no they didn't.
    • by kitsunewarlock (971818) on Wednesday October 07, 2009 @01:40AM (#29667033) Journal
      Cans of Worms have lids for a reason.

      Mostly because opening the can is a violation of the EULA, voids your warranty and forces you to rely on downloading 3rd party patches for your can as you can no longer connect to WormNet, the premiere Can o' Worms networking solution software that is required to run alongside your Can o' Worms at all times.
      • Re: (Score:3, Funny)

        by Thanshin (1188877)

        Cans of Worms have lids for a reason. Mostly because opening the can is a violation of the EULA, voids your warranty and forces you to rely on downloading 3rd party patches

        You probably broke the can of worms while trying to install unauthorized worms.

  • ... welcome the overlords who licenced us and now pwn.

  • by pegasustonans (589396) on Wednesday October 07, 2009 @01:07AM (#29666865)

    Not that this will ever happen, but, if the ramifications of this decision are taken to the next level, it could enforce the consumers' right to resell the license to a given software application.

    This, in turn, could mean that one could exchange and resell licenses of downloaded games and other media. Of course, the industry will likely pay off any relevant political actors in the interests of piracy prevention long before this occurs.

    Then again, software companies are much more open to this type of idea than they were ten years ago. Well, we can always hope.

    • by QuantumG (50515) *

      huh? what? You can resell a download perfectly legally.. the problem is more typically finding a buyer. Of course, if there's any DRM on that download, it's illegal to break it.

      • by pegasustonans (589396) on Wednesday October 07, 2009 @01:11AM (#29666889)

        huh? what? You can resell a download perfectly legally.. the problem is more typically finding a buyer. Of course, if there's any DRM on that download, it's illegal to break it.

        I was referring to reselling the license, not the download itself. Actually, I was referring to giving the license away for monetary compensation or no compensation, depending on personal preference (just like a physical disc).

    • Do not have mod points, but this comment deserves up mods.
    • by Vaphell (1489021) on Wednesday October 07, 2009 @03:15AM (#29667335)
      true that i wish it was mandatory by the law to allow reselling with full rights transfer and creating obstacles would get smacked hard. There is need for real protection of user rights, companies have it way too easy to fuck with them. Right now they have a dozen of dirty tricks in their playbook to circumvent 1st sale doctrine and kill 2nd hand market - DRMs, steam like authorizations, binding products to user's account permanently and all that shit are there for exactly that purpose. One can dream...
      • by Eil (82413)

        i wish it was mandatory by the law to allow reselling with full rights transfer and creating obstacles would get smacked hard.

        You can't have it both ways. It's only one or the other: Either there is no DRM or there is no rights transfer.

        If there is no DRM, and reselling of copyrighted content is legal, there is nothing stopping someone from downloading an MP3, making 5 copies of the file on his hard drive, and selling each of those 5 copies to someone else because there's nothing to verify the authenticity

    • by Jared555 (874152)

      What is fun is it is getting to where it is difficult if not impossible to resell the license when you even buy a physical copy, unless you sell every game on your account. You are basically buying a one time use key to add to your account and (sometimes) make the install process quicker.

      • by MBGMorden (803437)

        Hell it's getting hard just to keep your purchases if you move between systems these days. I've been through 5 or 6 DVD players in my time, and about as many VCR's. All my discs or cassette's all work in any of them though.

        Compare to digital media. Movies bought on an Xbox 360? Not only can I not take them with me to another brand of device, but if my current 360 dies I can't even take them to a new one. On the computer? Same thing. Used to be if I wanted to backup my files I copied them to a backup

  • by Anonymous Coward on Wednesday October 07, 2009 @01:50AM (#29667067)

    My understanding is that in this particular case Autodesk was essentially marketing the software exactly like a product instead of something that is licensed, thereby they couldn't claim that the product was in effect being licensed. Does this have any effect on shrink-wrap licenses and/or regular software?

  • by valentyn (248783) on Wednesday October 07, 2009 @02:01AM (#29667119) Homepage

    This is already European Law (which must be implemented in local laws in al member states). Once sold whithin the EU, you're free to resell your license.

    The problem is in the details: if you buy software (i.e. a license to use it), you normally also get a bunch of other rights, like access to updates, maybe even the right to call someone. The law doesn't say that these rights are also transferrable (or transferred). So in most licenses, there's still plenty of "you cannot do this and that (resell, for example), or you will loose the right to such and so".

    But the resale of the license to plainly use the software cannot be forbidden by contract in the EU.

    • by Jared555 (874152)

      What about a system like steam where even when you buy a physical copy it is linked (at least at one time) permanently to your account. Same with most MMORPGs I have seen that actually require purchase of the game, etc.

  • So what if I want to give my used license to a friend for free? I can still be sued by the software company and lose, right? What if I resell it for a token price of $1? $0.01? Or just give it away?

  • by L4t3r4lu5 (1216702) on Wednesday October 07, 2009 @03:58AM (#29667507)
    ... that he didn't use the software himself, and therefore was not bound by the shrink-wrap license? He purchased them for resale only.
    • by amplt1337 (707922)

      That wouldn't matter. All that would do is say that the chain of legal ownership got broken from whatever source he bought the software. If the license is not transferable by sale, then "I bought it to resell" has no more validity than "the software fall off the back of a truck."

      • by Sique (173459)

        He still can sell the CD though. If the prospective buyer is not allowed to run the stored program because of some license issues, then we have a completely different problem.

  • This is good. There is much to be said for and against an "ownership society" but I can't recall publicly advocating our transformation into a "licensure society."

    I have no doubt that the same people who are trying to outlaw analog recording devices are planning a campaign behind closed doors for the eradication of "ownership" as a concept in U. S. culture, but they would never dare to say it in public.

    Software licensing made sense when software was a semi-custom low-volume craft product; when there were sm

    • by Krishnoid (984597) *

      Today it makes no more sense than to say ... "these skis are licensed, not sold."

      No *more* sense perhaps, but people rent skis. IANAL, can someone comment on the legal difference between licensure, rentals, and leasing?

  • Similar enough?! (Score:3, Interesting)

    by Sloppy (14984) on Wednesday October 07, 2009 @08:32AM (#29669007) Homepage Journal

    One major consideration in that was the fact that the studio did not have the right, as it did in other agreements, to demand the return of the print.

    The Court said that though the issue was complicated, software agreements were similar enough to those film agreements to act as a precedent.

    Ha! So that's the "older' precedent? How about this? I walk into a grocery store, anonymously give cash to the cashier and walk out with a loaf of bread without having made any agreement at all, other than "I want the bread, here's some money." Retail software sales use the exact same transaction -- identical in every single way -- to what people have been doing for thousands of years. Thousands. And in all that time, Congress never bothered to pass a law that pulls a switcharoo on us and creates a difference between those transactions.

    (Congress has passed some laws that creates some differences between what a person is allowed to do with a loaf of bread, versus a movie or software. But the sale itself, or giving rights to the original seller to demand it back? Nope. Some judges have created some new laws that treat the transactions differently, but Congress has kept out of that, so far.)

  • I hope that the courts, while considering themselves "bound by precedent", do not forget that they are also bound by statute.

    If some high muckety muck court decides to be crazy and make a precedent by legislating some outlandish ruling from the bench, what recourse does a lower court have if neither party appeals it high enough for the error to be fixed?

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