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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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  • Re:Err... (Score:4, Informative)

    by Anonymous Coward on Wednesday October 07, 2009 @02:08AM (#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.

  • by pegasustonans (589396) on Wednesday October 07, 2009 @02:11AM (#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).

  • by Budenny (888916) on Wednesday October 07, 2009 @02:57AM (#29667101)

    The various cases on this matter make it clear that there are three different things involved. Read Title 17 Section 117.

    You may own copyright in the software. This gives you the right to control what copies are made, with one exception. This, copyright ownership, is what people usually mean when they talk about owning the software. It is the same as a publisher owning copyright to a book. He may print and sell as many copies as he wants.

    You may also own a retail copy. This is what Vernor finds, and what Softman found before that. It has been repeatedly argued by software suppliers that you do not own the copy, that you only own a license to use. It has now been found for the second time that you own it, and the criterion used is whether the supplier has any right to repossess. If not, the copy is yours.

    We next come to copies made in way of use. If the software is not supplied 'live', ie running off the installation media, it must be installed. Installation constitutes copying. It would be illegal under copyright law without some explicit permission. In fact the sort of copying which also occurs during use when the software is read into memory was found illegal in the well known MAI case, until Title 17 S 1117 was revised as a result of this case.

    The revisions provided that copies and modifications made or authorized by the owner which were essential to use with a machine (notice the article, "a" machine) are permitted. But 117 also provides that if you resell the copy you own, you may only sell with it the copies you have made in way of being essential to use, with the consent of the copyright holder.

    So, to summarize the situation, when you buy a retail copy of software, you own that copy. You do not become the copyright holder, your right to make copies is limited by Title 17. You may make copies (or modifications) that are essential to use with "a" machine - by implication, the machine of your choice, not of the copyright holder's choice. But your rights over resale of those copies is limited.

    Two things are sometimes argued about this.

    (1) It is sometimes argued that you may only use a machine which is essential. For instance, you may not install OSX on a Dell, because a Dell is not an essential machine, you could equally well use a Mac. Wrong. The machine does not have to be essential, and the article is indefinite, "a" machine. What has to be essential is the copying.

    (2) It is also sometimes argued that because you have no rights of resale of the copies made in way of being essential to use, the copyright holder owns them, and you do not. There is no ground for this view. The test of repossession does not suggest this. The copyright holder has no right of repossession of those copies, and you have a right to them in perpetuity with no further payments. The situation is, you own them but you have restricted rights of resale.

    So where does this leave Psystar and OSX? In a very simple situation. If they installed without having transferred the ownership of the retail copy of OSX to the customer, they were in violation of copyright. If they were made when ownership of machine and copy had been transferred, they were permitted by 117 as having been authorized by the owner, and were not then resold, so no permission for transfer was required, as they were never transferred.

    This means that there need not have been any violation of copyright, but there was of course a breach of the Apple EULA. Whether the term of that EULA which obliges you to buy your hardware from Apple is enforceable is a quite different matter. But as far as copyright goes, you are the owner of any retail copy of OSX, or MS Office, that you have lawfully acquired. There is nothing in copyright law to stop you installing it wherever you want, as long as you do not make more than one copy. It says "a" machine, remember.

  • Re:Sweet! (Score:2, Informative)

    by Okind (556066) on Wednesday October 07, 2009 @04:02AM (#29667297) Homepage

    What's a license and why do I need one? Isn't "I agree" simply an artistically decorated button to start the program?

    This is not the case: simply saying "yes" is an agreement, with full legal consequences, provided it can be proven in court. With software, proving that you clicked "I agree" is much simpler. After all: without altering the program (which is not allowed without a license), the program won't install before you explicitly agree to the license.

    Simply put, a license is an agreement giving you the right to use the software. Note that this actually to any copyrighted material, so it also covers the images, music, movies, etc. in a game. Without a license, you can only use software if you buy it: at least in the Netherlands there is a limited set of things you may do with software you bought without a license. But there is an important exception here as well: general terms of business.

    EULA's are generally valid, even though you explicitly agree to them after you buy/download the software. The reason: they are the same for every user, and are thus general terms of business. There are of course a few restrictions: general terms of business must be legibly available before the sale/download. So a shrink-wrap license (which is not available before the sale/download) is not legally binding.

    Many jurisdictions prohibit changing the conditions of sale after the sale. This also includes changes to a license, or the general terms of business, unless they state explicitly that they may change (which us extremely common). And even then there are restrictions in consumer law. For example, in the Netherlands, the changes must be made known to the user beforehand (a change on the website is not enough), well in advance (at least a month) and you have the option to decline. In that case, the contract/license is nullified (so you cannot use the software anymore) at no cost whatsoever.

    So in short, a EULA is generally always valid. Your jurisdiction may enforce certain constraints though. For example, in the Netherlands I may always make a backup copy, regardless what the license says. Nor is any license term valid if it limits my right to free speech, for example by publishing benchmarks.

    If you don't want to be bound to the license, your only recourse is not to use the software.

    NOTE: I live in the Netherlands (Europe), and I have no legal training. Depending on my understanding and where you are, I may completely misrepresent your situation.

  • Re:State matter? (Score:2, Informative)

    by Anonymous Coward on Wednesday October 07, 2009 @06:24AM (#29667881)

    Copyright is granted under the IP clause of the Constitution, and its regulation given to Congress.
    This is the policy interest to which the court referred, i.e. Congress may step in and legislate that although copyright creates a divisible property interest which may be sold in part or whole, to other parties, the sale of a copy of software is, as a matter of law a (license or transfer of property right over that copy)
    All the court is saying is that the jurisprudence says that AutoDesk's own license says that the sale of a copy is a property transfer, on that particular copy, but that if Congress wants a different policy, it is free to change the Copyright Act.

  • by Optic7 (688717) on Wednesday October 07, 2009 @12:31PM (#29671251)
  • Re:State matter? (Score:3, Informative)

    by ChaosDiscord (4913) * on Wednesday October 07, 2009 @12:55PM (#29671511) Homepage Journal

    ...if you leave it to the states, you will cause massive damage to interstate commerce.

    If only there was some way for states to get together to agree on uniform rules. Oh wait, there is: the Uniform Commercial Code [wikipedia.org] and similar agreements liek the Uniform Trade Secrets Act [wikipedia.org].

    Companies like federal level laws because they tend to include a "Local laws are hereby no longer valid." It lets them focus on lobbying a single group of people who are frequently completely unconnected from the problems at hand. Does a Senator from Texas really know what's best for New York? Does the Representative representing Chicago know what's best for Wyoming?

    I'm not prepared to press local autonomy flat to extra grease for the wheels of capitalism.

    Those boobs can't even come up with consistent sentencing for crimes....

    I'm very thankful we don't have consistent sentencing for crimes across states. People are going to have very different opinions about what things are crimes, and how harshly they should be punished. There are several states whose sentencing I consider grossly immoral. My solution is easy: I don't move there. Presumably people who like the sentencing guidelines and rules in those states think I come from a state with wildly inappropriate guidelines. They're free to stay the hell out of my state; we like it this way.

  • by Maestro485 (1166937) on Wednesday October 07, 2009 @01:14PM (#29671731)
    Now that is one hell of a rant!

We don't know one millionth of one percent about anything.

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