6271369
story
Comments: 177 +- Your Rights Online: Court Rules For Software Ownership Over Licensing on Wednesday October 07, @12:32AM
Posted
by
kdawson
on Wednesday October 07, @12:32AM
from the broke-it-you-bought-it dept.
from the broke-it-you-bought-it dept.
background: url(//a.fsdn.com/sd/topics/topicdoj.gif); width:50px; height:79px;
court
background: url(//a.fsdn.com/sd/topics/topicsoftware.gif); width:65px; height:65px;
software
background: url(//a.fsdn.com/sd/topics/topictech2.gif); width:60px; height:80px;
technology
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."'"
Related Stories
: by
A great many people think they are thinking when they are merely
rearranging their prejudices.
-- William James
All trademarks and copyrights on this page are owned by their respective owners. Comments are owned by the Poster. The Rest © 1997-2010 Geeknet, Inc.
Err... (Score:5, Insightful)
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?
Re: (Score:2)
the finding does kinda sound like "we can't fix this loophole in this court, but try a higher court!"
Re:Err... (Score:5, Insightful)
...more like "we can't fix this loophole in court, lobby congress instead!"
Parent
Re:Err... (Score:5, Interesting)
Parent
Re: (Score:2)
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.
Re: (Score:3, Insightful)
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
Re:Err... (Score:4, Informative)
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.
Parent
Re:Err... (Score:4, Insightful)
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.
Parent
Re: (Score:2)
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.
So when they say "Own this movie on DVD today!" (Score:2)
I really own it? Great!
Re: (Score:2)
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)
Re:Sweet! (Score:5, Insightful)
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.
Parent
Re: (Score:2, Informative)
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
Re: (Score:3, Insightful)
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 alrea
Re:Sweet! (Score:4, Interesting)
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?
Parent
Re: (Score:3, Interesting)
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 th
Re: (Score:3, Interesting)
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.
N
Re:Sweet! (Score:5, Insightful)
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.
Parent
Re: (Score:2, Interesting)
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.
Very important stuff (Score:2)
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].
Can o' worms (Score:2)
Re:Can o' worms (Score:5, Funny)
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.
Parent
Re: (Score:3, Funny)
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.
I for one ... (Score:2)
... welcome the overlords who licenced us and now pwn.
The last hurdle for download distribution? (Score:5, Insightful)
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: (Score:2)
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.
Re:The last hurdle for download distribution? (Score:5, Informative)
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).
Parent
Mod parent up (Score:2)
Re:The last hurdle for download distribution? (Score:4, Insightful)
Parent
Can a lawyer explain this to me? (Score:3, Interesting)
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?
In Europe, this is the law (Score:5, Interesting)
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.
This cover right to SELL only, right? (Score:2, Insightful)
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?
Isn't a fundamental aspect of this case... (Score:4, Insightful)
Similar enough?! (Score:3, Interesting)
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:Information wants to be free (Score:5, Insightful)
"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!
Parent
Re: (Score:2)
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.
True, but it makes sense that any physical copy that you have is exactly like any other physical object that you want to sell or give away. I think all this will do, though, is make software publishers move their content to purely online and charge a hefty premi
Re:Information wants to be free (Score:5, Insightful)
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.
Parent
Re:Information wants to be free (Score:5, Informative)
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.
Parent
Re:Information wants to be free (Score:4, Insightful)
The version on TPB works just fine.
Parent
Re:Information wants to be free (Score:5, Insightful)
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!
Parent
Re: (Score:3, Informative)
Re: (Score:2, Funny)
Unless its Leenux - then you better follow that gnu/license you software pirate!
Re:Information wants to be free (Score:4, Insightful)
You can't own software, man.
Then you can't sell it or steal it either.
Parent
Re:State matter? (Score:5, Interesting)
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.
Parent
Re: (Score:2)
"you will cause massive damage to interstate commerce"
Autodesk seemed to be doing a good job of that all on their own.
Re: (Score:3, Informative)
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. Doe
Re: (Score:2, Insightful)
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....
Re: (Score:3, Informative)
Dangit, second link was supposed to be this: http://www.eff.org/deeplinks/2009/10/it-s-still-duck-court-re-affirms-first-sale-doctri [eff.org]