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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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  • Sweet! (Score:3, Interesting)

    by SheeEttin (899897) <sheeettinNO@SPAMgmail.com> 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: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.
  • Re:State matter? (Score:5, Interesting)

    by meerling (1487879) on Wednesday October 07, 2009 @01:44AM (#29667043)
    when you start getting down to the actual rights that are transferred with a purchase of goods, if you leave it to the states, you will cause massive damage to interstate commerce. Those boobs can't even come up with consistent sentencing for crimes, there's no way they'll voluntarily adopt a single consistent set of rules over this unless it's done at the federal level.

    If any readers still can't imagine what the problem is with that, think about it for a bit. Here's a few hints, imagine if a company in Maine sold software to people in all the states. In Texas they might be forced to provide updates for free for a period of 3 years, while in Ohio updates have a cost $1.00 but they only have to be available for 6 months. Now in Colorado you can resell your software, but in Florida you don't own it - it's all leased for a period of no more than 4 years. Getting messy already, and we've only covered 4 states. (Maine didn't count because I never said anything about their local laws on ownership/sales.)

    By the way, if you are buying land in a state other than your own, check what the state laws are where you are buying it. Some states you get the works. Others, you don't get mineral rights. Some, you get water rights, and you might get mineral rights, but not oil rights, that's a seperate thing altogether. (Can you guess which states I'm talking about?)

    In California you can buy beachfront property, and you get the beach. In Oregon (same coast, just farther north) you can still buy beachfront property, but the beach always has, and always will, belong to 'the people'. (Lots of Californian developers have gotten massively pissed over that when they tried to put up walls or fences...) The coast belonging to the people of Oregon is essential native traditions that were adopted into laws for Oregon. This is just a small example the differences that already occur, and you don't ship real estate across state lines, imagine how screwed up that would be.
  • 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?

  • Re:Sweet! (Score:2, Interesting)

    by Anonymous Coward on Wednesday October 07, 2009 @01:54AM (#29667089)

    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.

  • 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 windex82 (696915) on Wednesday October 07, 2009 @08:29AM (#29668977) Homepage

    Whoops. Gotta call microsoft and beg them to let you use the software you own.

    I don't believe you've ever called Microsoft to get software activated. Unless by begging you mean answering "no" or "one" to the "is this installed on any other computers" or "how many computers is this installed on" questions. In that case your and my definition of the word are completely different.

    I agree with you in that you shouldn't have to in either case but the phone activation is far from difficult and have never been denied an activation key despite actually calling them in various capacities activating hundreds of softwares over the phone for anything from XP to TS.

  • 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.)

  • Re:Sweet! (Score:4, Interesting)

    by AK Marc (707885) on Wednesday October 07, 2009 @09:38AM (#29669773)
    No, you get to use the software at the price you paid. That's your consideration.

    Paid. Past tense. I had a sale contract to buy the product, and they sold it to me. From the wording on the box and the "reasonable man" standard, that includes using the contents of the box I bought. They can't then give me something I already own. It's not consideration for them to say "you already own this, we are going to give you nothing, but we are going to take away lots of things you can do now if you click disagree, like resell it, reverse engineer it, or whatever."

    For the standard car analogy, it would be like buying a car, then, after you paid for it and took it home, someone from Ford knocks on your door and says you need to sign a contract saying that you will not drive the car over 55 (to keep their safety record good) and that you'll always get your oil changed at Ford dealerships at your own expense and never resell it, and if you don't agree, they will sabotage your car so you can't drive it. Feel free to keep it and Ford will keep your money, you just can't drive it. Would you say "yes, that's a reasonable EULA and I think it's a great consideration to let me use what I've already bought"? Or would you tell them to go to hell and use the product you've paid for in the manner advertised? Why can they, after the sale of the product, then apporach you and tell you that they are going to then reduce the value of the previous sale with no consideration?
  • Re:Err... (Score:3, Interesting)

    by commodore64_love (1445365) on Wednesday October 07, 2009 @10:33AM (#29670461) Journal

    >>>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 a counter-lawsuit, as happened with Comcast in Florida. False advertising is illegal and it's time we held these companies accountable.

  • Re:Sweet! (Score:3, Interesting)

    by gnasher719 (869701) on Wednesday October 07, 2009 @10:52AM (#29670729)

    Clicking "yes" is not the same as saying yes, because: you're not saying it to anyone. You're not communicating. An agreement is something that happens between two parties, not a person and themselves, or a person and their own non-networked computer.

    The agreement or non-agreement comes from the total of your behaviour. If you click "I agree" by mistake, but then don't install the software, then your action of not installing the software indicates quite clearly that you haven't agreed. If your cat jumps on the mouse button, you haven't agreed. If you wait patiently for your cat to jump on the mouse button (assuming your cat likes playing with your computer mouse), and you install the software as soon as the cat clicked "I agree", you have agreed even though you never clicked the button yourself. If you hack the installer to install the software without clicking "I agree", I guess it is your choice whether you actually agreed or committed an act of copyright infringement, and quite likely a DMCA violation.

    Now if for some reason you ended up in a court, that would be a civil court, where preponderance of evidence counts. So if the seller can prove that the "I agree" button was indeed clicked, but you claim that his happened by accident and you can prove that the software was never installed, then it is more likely that you didn't agree. If the seller can prove that the software was installed, then it is more likely that you agreed.

  • Re:Err... (Score:1, Interesting)

    by Anonymous Coward on Wednesday October 07, 2009 @12:05PM (#29671637)

    "So the court, by mentioning the dictates of precedent in the first place, ..."

    _Precedent_??? Damn! There are a few thousand years of custom and culture in the retail marketplace. You buy it, you take it home, you own it. Everyone gets it, from rocket-scientist to those that have a hard time with independent living. You would have to take an expedition to the ends of the Earth to find some culture that does not understand that. Why is the court seriously pondering that a loophole will trump centuries of precedent?

  • Re:Sweet! (Score:3, Interesting)

    by Crispy Critters (226798) on Wednesday October 07, 2009 @12:13PM (#29671721)
    "If I own a copyrighted work, I'm entitled to do what I like with it, save for copying it."

    I would be interested to know where you live that has laws like this. I live in the United States, and the laws here are very, very different. There are all sorts of things that you cannot legally do that do not involve copying the work, including for example transcribing lyrics of songs and public performances. I also can't buy a book, replace the covers with new ones that list me as the author, and resell it.

    None of these things is copying the work, and they are illegal where I live (in the United States).

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