Forgot your password?
typodupeerror
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."'"
This discussion has been archived. No new comments can be posted.

Court Rules For Software Ownership Over Licensing

Comments Filter:
  • Err... (Score:5, Insightful)

    by QuoteMstr (55051) <dan.colascione@gmail.com> on Wednesday October 07, 2009 @01:41AM (#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 ZosX (517789) <zosxavius@NosPam.gmail.com> on Wednesday October 07, 2009 @01:49AM (#29666785) Homepage

    "You can't own software, man."

    Define ownership. You can own the physical (ever disappearing) media that the software comes from. You can own the rights to the software and its code. You can own a license to use the software. This is the problem and one that will be challenged in the future when software moves to pure digital distribution. Do you actually own what is on your hard drive? I say yes, but what happens when you have to reinstall and your only installer is some steam-like gateway that approves and disapproves of your access to said software? This is going to be a MAJOR shift your rights to copy software and make backups. The tide is already turning away from the consumer (some would say its long since been gone), but when you have no way to just reinstall software it might create some serious problems.

    Like here is an easy example. You needed to reinstall windows (again!), but you ran out of installs on your oem key. Whoops. Gotta call microsoft and beg them to let you use the software you own. Next you go to install Photoshop with adobe's new digital distribution service (the only way to get CS5), but their server is down and you need to work on a project today. If you had a disk you could just install, but no, you as a paying customer get to be treated like a potential criminal. I know this is kind of extreme, but you see where I'm going and we are really almost at that point.

    Sorry for the generalizations. I'm pretty much toast right now. Time for bed. Goodnight slashdotters!

  • Re:Sweet! (Score:5, Insightful)

    by Okind (556066) on Wednesday October 07, 2009 @01:56AM (#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.

  • Re:Sweet! (Score:5, Insightful)

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

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

  • Re:Err... (Score:4, Insightful)

    by Anonymous Coward on Wednesday October 07, 2009 @02:43AM (#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.

  • by Kjella (173770) on Wednesday October 07, 2009 @02:52AM (#29667077) Homepage

    Extreme? No. I've been locked out of software I bought, probably because of trying to make it work under WINE with quite a few installs. Took them three days to answer mail (was on a weekend), I had said "fuck it" and downloaded DVD+crack long ago. I probably don't need to tell you what happened to my Stream games when the %#% cable company took a month and a half to fix my Internet. I do want to pay for the good stuff, what little there is of it, but that sort of thing makes me mad. Particularly because me buying something, despite having the full thing downloaded already, only "proves" that DRM works *rolls eyes*. No, it doesn't. DRM is and always will be pathetically useless. It might mean I actually like it and want more games/movies/music/series/whatever like that though. At least the music industry seems to have finally gotten the message even though they were dragged kicking and screaming into the DRM-free world.

  • by Vaphell (1489021) on Wednesday October 07, 2009 @04:15AM (#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 JohnBailey (1092697) on Wednesday October 07, 2009 @04:22AM (#29667361)

    You can't own software, man.

    Then you can't sell it or steal it either.

  • by gzipped_tar (1151931) on Wednesday October 07, 2009 @04:22AM (#29667365) Journal

    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 eldorel (828471) on Wednesday October 07, 2009 @04:33AM (#29667401)

    There is a difference between a distribution license and a software license.

    Gpl, Lgpl, and the like are the former. The right of first sale applies to the latter.

    You can already resell linux distros with no issue anyway, and you do own the software when you get it (either via download or by purchasing a disk).

    There's no Eula on linux....

  • by L4t3r4lu5 (1216702) on Wednesday October 07, 2009 @04:58AM (#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 Fross (83754) on Wednesday October 07, 2009 @05:27AM (#29667631) Homepage

    The version on TPB works just fine.

  • by hairyfeet (841228) <[bassbeast1968] [at] [gmail.com]> on Wednesday October 07, 2009 @06:28AM (#29667901) Journal

    And you just hit the nail right on the head with that simple statement, bravo. All this bullshit does is make the pirated version in EVERY WAY better than the "legitimate" version. Take my case for example, I have to fricking crack every. damned. single. game. I own. Why? Because XP X64 (my OS of choice) plays all the games, even the older ones beautifully while giving me access to my 8Gb of RAM but the ^&%$&^&$^&%$ DRM don't work, that's why!!! You get that stupid "insert disc in drive E:" bullshit. It IS in drive E:, you stupid piece of crap!

    And God help you if you don't notice the sometimes invisible warning and get "starforced" as guess what? Their damned uninstaller don't work on x64 buddy! That's right, enjoy a day spent dual boot and hacking the reg to get rid of that festering turd, but as you pointed out TPB version works just fine on XP X64. But I think this guy [metacafe.com] (warning-language which you can't blame him for if you watch the video) says it better than I ever could.

    Just give me one more Starfoce infection game makers, just one more, and yes it IS an infection, as a PC repairman I can tell you that a Starforce+Safedisc+SecuROM infection is nastier than most malware out today, and you can kiss my money goodbye. If my choices are paying for the "privilege" of getting kicked in the nuts or NOT paying and not getting kicked in the crotch or spending more time "enjoying the fun" of removing your broken DRM than playing your latest crappy $59 "extravaganza"? Well it'll be TPB for the win, and you'll have NO ONE to blame but yourself. Because I don't know about everyone else, but I'm mad as hell and I'm not going to take this anymore!

  • Re:Err... (Score:5, Insightful)

    by eam (192101) on Wednesday October 07, 2009 @07:31AM (#29668183)

    ...more like "we can't fix this loophole in court, lobby congress instead!"

  • Re:Sweet! (Score:3, Insightful)

    by AK Marc (707885) on Wednesday October 07, 2009 @08:09AM (#29668381)
    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.

    It's a demand that you either click "I agree" on or you lose value of what you purchased. You are being coerced. The "value" is being held hostage after it has already been paid for.

    So in short, a EULA is generally always valid.

    But "valid" in what sense? Is it a contract? It seems to meet none of the legal requirements of a contract. I get no consideration. I've already paid for it, I already own it, and I get nothing from the EULA (I gain from clicking the "I agree" button, but the EULA itself grants me nothing). It isn't even executed properly. Who is the agreement with? "Autodesk" can't make an agreement. No real contract is signed with the company name. They are always signed by a human, with explanation of how they represent the corporation. The inability to negotiate a contract (as opposed to the unwillingness, which is always allowed) is another disqualifying factor. So I can't see how a EULA can be a contract when it doesn't follow contract law.

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

    So you bought it, you own it, and you can't use it. That's not what I paid for. I bought something that said "use this for CAD" and I want to use if for CAD under reasonable terms. If I find their terms unreasonable after I've bought it, then how do I negotiate with them for terms we both can agree on? If no agreement can be reached (because a EULA has no mechanism for negotiation, and negotiation is one of the requirements of contracts), then it isn't a valid contract. Clicking "install now" isn't a legal decision, but a requirement to make the software work. Clicking "I agree" has nothing to do with whether I (or a reasonable person) actually agrees to everything in there, but is a button that must be pushed to use software already bought and paid for, no different and no more legally binding than "install now."
  • Re:Sweet! (Score:2, Insightful)

    by plague3106 (71849) on Wednesday October 07, 2009 @09:51AM (#29669219)

    It's a demand that you either click "I agree" on or you lose value of what you purchased. You are being coerced. The "value" is being held hostage after it has already been paid for.

    No, because you can return it for a full refund.

    But "valid" in what sense? Is it a contract? It seems to meet none of the legal requirements of a contract. I get no consideration. I've already paid for it, I already own it, and I get nothing from the EULA (I gain from clicking the "I agree" button, but the EULA itself grants me nothing).

    No, you get to use the software at the price you paid. That's your consideration. What the OP said is that you were informed there are terms which you can see when you install the program and to complete the sale you must agree to those terms. So the sale doesn't end when you walk out of the store. It ends when you read the EULA and accept or reject it. If you reject it, you back out of the sale and can get your money back. If you accept it, well you've accepted it.

    It isn't even executed properly. Who is the agreement with? "Autodesk" can't make an agreement.

    Um, it would be with Autodesk. Companies can't make an agreement? Since when?

    No real contract is signed with the company name. They are always signed by a human, with explanation of how they represent the corporation.

    What? Ever applied for a credit card? The application doesn't even HAVE a place for a company rep to sign. And do you know how you accept the contract once they accept it on their end? You USE the card, or activate it via an automated system. Oh, and its all legal too.

    Where do you get this nonsense that a contract must be in a certain form and executed a certain way?

    The inability to negotiate a contract (as opposed to the unwillingness, which is always allowed) is another disqualifying factor. So I can't see how a EULA can be a contract when it doesn't follow contract law.

    Again, where do you get this nonsense? Theres no law saying a contract has to be negotiable to be valid. Have you ever signed up for ANYTHING? You can't negotate your cell phone agreement, nor can you your electric agreement. If I hand you a contract, tell you these are the terms, take it or leave it, you can do just that... take it or leave it. But you can't take it and then say "oh the contract isn't valid because he didn't let me negotiate."

    At the very best you can get out of a contract... but then both parties take what they were offering back.

  • Re:Err... (Score:3, Insightful)

    by cduffy (652) <charles+slashdot@dyfis.net> on Wednesday October 07, 2009 @10:05AM (#29669401)

    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 law does not allow the copyright owner to determine whether I can resell an embodiment of their work -- this is why Autodesk has resorted to licensing to do so.

    The question, though, is this: Why is there a compelling public-interest need to allow copyright owners to extend their control over embodiments of their works beyond that which copyright law already provides?

    Answer that question, and we'll have a better understanding of each others' positions.

  • Re:Err... (Score:1, Insightful)

    by Anonymous Coward on Wednesday October 07, 2009 @07:46PM (#29676007)

    So? No reason a license can't be transferred like any other contractual obligation.

What this country needs is a good five cent microcomputer.

Working...