Software Transferability? (or the lack of it) 471
"I seem to recall hearing stories of courts overturning these schemes; does anybody have any specifics? Cases/judicial opinions, perhaps? I've checked FindLaw, Google, and others, but haven't found anything (haven't found anything upholding them, either...). Have these clauses ever even been to court, or do the companies just depend on FUD to bludgeon the end user into compliance? Anybody with experience, I'd love to hear it. Lawyers, your opinions? (Lawyers, would you be willing to fight one out in court, if given the chance?)"
As many of you may know, the concept of "owning" software is fallacy. You own nothing. What you do posess when you purchase your new piece of commercial software, is a corporate-skewed set of limited-use rights, which are getting more and more limited each day. For those interested, the latest print issue of Wired (October, 2001) has a big "article" on this (see p.170). It attempts to illustrate thru humorous example, what software has been seriously doing for decades.
No one would own (or lease) a car if the contract said, "You must not sell this car, in the event this car is no longer used, send it to the nearest junkyard.", so why is this true for software?
So if software is not transferable. (Score:2, Funny)
Re:Ah but it is! (Score:3, Insightful)
because... (Score:4, Funny)
Re:because... (Score:3, Funny)
Ahhhh (Score:3, Funny)
Re:because... (Score:5, Insightful)
Yes, MS can keep on selling the product, just like a prostitute can. However, the sale of software concerns a tangible good, whereas prostitution is a *service*.
Since software is a tangible good, it is possible for the consumer to recover part of their initial investment by reselling ("transferring") it to someone else. This is what is prohibited by the EULAs, since the software vendors a) don't want old copies of their software out there and b) want everyone to upgrade to the latest version of everything.
Since "transfer of title" clauses in EULAs have largely been ignored by consumers and unenforced by the courts and software manufacturers, they are now trying to figure out how they can accomplish a) and b). The answer is software *services*, or the ASP model. By doing this, everyone signs a contract saying "for $xxx my 50 employees can use Office 2005 for 1 year." Since the software is never distributed on CD-ROM, the service is never placed into a form that people can resell (transfer). Since people are forced to go to the manufacturer for the software, and since the manufacturer determines what versions are available when, for how long, and at what cost, they can accomplish both a) and b).
Re:because... (Score:5, Interesting)
You know that someone is going to come along with a remake of the infamous Apple 1984 commercial, promoting a rebellion against the Beast. Maybe with a take on the old myths of hell, where all of the people think they are eating the finest grub, but instead are revealed to be eating ashes and slime from the Abyss. The number of Advertising campaigns that could be mocked up around this are amazing.
And irony of Ironies, they could even be paid for by IBM. I can even imagine a voice over that says something like "hey we thought we were evil. Then we met Microsoft, evil on a scale that is simply awe-inspiring." Or mock commercials with the Ferengi advertising for Microsoft .Net
All you have to do is push the idea of "Don't Get Suckered by Microsoft!"
Re:because... (Score:5, Insightful)
No, the truth of it is that you bought a copy of a work. Rather like a book. And a hundred years ago, it was determined that copyright holders cannot, merely by virtue of their copyright, restrict in any way, people from reselling that work. It's called the First Sale doctrine.
The question really is whether or not the licenses included with software are valid in whole, or in part, and if so, at what time do they become active? It has very, very little to do with software specifically, but rather contract law in general.
Re:because... (Score:3, Interesting)
Re:because... (Score:3, Funny)
What are you talking about? I burn software all the time! I also burn movies, TV shows and system backups.
Re:because... (Score:5, Informative)
This is a horrible analogy. First of all, the First Sale doctrine DOES APPLY to recordings of Musical works - meaning when I buy a CD (admittedly it's a copy of a piece of art) I have the right to sell that CD to anyone whom I chose.
Hence used CD shops all around the world.
What's different about software is that you agree to the EULA before you open or install the software.
The real question is whether or not that EULA is even a valid agreement, since it attempts to nullify certain rights the courts have traditionally upheld, such as First Sale doctrine.
In a similar note, I remember reading about IBM getting into Anti-Trust trouble back in the 70's because they would NEVER sell their software or hardware. You HAD to lease it from them, meaning they never transferred ownership of anything to you.
Of course, from a corporate standpoint this makes perfect sense. Economically, a firm will always maximize profits if it only leases (either rights of use or whatever) it's products and services. My question is why no one ever thought to bring this up in the Microsoft case.
IBM was forced by the courts to sell products and software if they were also going to lease them. Of course, they continue to do both, but it's interesting that this was the focus of one of the most successful anti-trust cases in our nation's history, and yet somehow the DOJ missed it in the Microsoft Case.
Anyone have any ideas on how this doctrine has held up in the courts and how it might affect the future of Software as Services???
BJ Hoffpauir
Sr. Systems Architect
Time Trend, Inc.
www.timetrend.com [timetrend.com]
PS - I read about the IBM issue in "Proudly Serving My Corporate Masters" - a great book!!!
http://www.proudlyserving.com/ [proudlyserving.com]
Re:because... (Score:5, Funny)
Uh, no. It is costs money as in prostitute.
Re:because... (Score:2)
There's nothing more expensive than free software.
--Blair
"Except maybe an equity position in a can't-miss internet opportunity."
More like marriage... (Score:5, Funny)
But what about the nice box (ahem) that software comes (ahem) in? What about the manuals, the CD, and all the other goodies you get in a box of software? Why do you get it in a store, see a price sticker on it, give a cashier money for it, and walk out with it?
MS wants software to be prostitution. They want you to pay each time you use it, and they want the US legal system to be their pimp.
Chances are, whether we like it or lot, they'll get to do that. If we're lucky, however, there will be some alternatives in the form of Free software.
The problem, as I see it, is that right now software is more like marriage. You find what you want, pay a big up-front cost -- the wedding -- and make a commitment for life. When new, improved versions become available you can go through a long, involved process to get them, but you can't recoup the original cost of the wedding. If someone wants your old version, you can't just give it to them, they have to pay for a wedding too.
Re:More like marriage... (Score:3, Funny)
Open Source is easy, as in promiscuous.
> [MS] want the US legal system to be their pimp.
Linus wants you to sleep around.
Regards, Ralph.
Re:More like marriage... (Score:5, Funny)
But you can do all this yourself by writing your own software...several times a day...and...if you get tired of that, you can get married to the GPL...but then you just have to put up with that nagging bitch (RMS) all the time.
Ok... back to 'writing software'
Re:because... (Score:2)
if it's because you can make money with the software, doesn't your car take you to work? I don't see where this is any different.
this seems to be companies trying to maximize their profits by 'asking for an inch.'
Re:because... (Score:2)
Re:because... (Score:2, Interesting)
There should be nothing wrong with selling your copy of Word if you plan on buying a new copy or stop using Word.
However, to keep sales up, Microsoft and others must write it into the contract that everyone must pay for the wedding whether they are divorced or not.
MHO.
Re:because... (Score:5, Informative)
Copyright protection allows full transfer and/or resale of copyrighted material and all copies made for personal backup. Software does not get an exemption .
In Germany, this has been further extended. You can even resell your Microsoft Windows OEM license as a full blown license, provided you transfer all copyrighted associated material.
In the US, the issue becomes more complex for EULA protected software. One issue is that the company claims the consumer agrees to a contract he never has a chance to read before purchase. The contract allows the consumer to be refunded for the software, but not from the software owner, Microsoft. No. You have to get the refund from the resaler. In practice this does not happen so you are forced into accepting a license whose terms you cannot read before purchase.
There is some reason to think that EULAs of this form will ultimately be stricken as illegal, and software only protected by copyright. In fact, some people think this is already the case (read http://cr.yp.to/).
So, to sumarize, software is not like tangible things. In some views, it is just like copyright, and is completely re-sellable. Even after use.
Re:because... (Score:3, Insightful)
Ahh, but here is the catch. The EULA license agreement was not between you and microsoft, but rather between Microsoft and your OEM. So in actuality if you sell your copy, oops I mean the OEM's copy of windows you commit theft. Your OEM paid for each os install and agreed to be bound by the EULA. The EULA agreement was provided by Microsoft as a service for OEM's, and not individuals to provide an OS for customers. This loophole means as a consumer you are powerless under protection of various consumer laws including first sale doctrine. After all, you never really paid for it. Your OEM is the true consumer who is eligable under these specific laws. Obviously the OEM's will not protest to the government. So your OEM is legally allowed to sell their copy of windows but if they do, MS will stop selling them any more copies. You legally have no protection at all whatsoever unless you buy the more expensive non OEM version. Oh wait! You agreed under the EULA not to do this when you bought it yourself! Remember if you buy it yourself then you must agree to the EULA. Great legal loophole, hu. :-)
It seems those guys at Microsoft really put alot of effort and thought thru this to get away with everything from consumer protection laws, to first point of sale laws, to even wiping out potential competitors by having the OEM's decide for consumers which OS we use. Very clever trick. Bill Gates was a law student at Harvard before he left to found Microsoft. I am sure he learned some these tricks through there as well from his father who is a very sucessfull lawyer.
Re:because... (Score:2)
There are plenty of instances where this simply isn't true. I remember a few months back when some university or lab was selling an old Cray computer of theirs. The computer required a proprietary OS to operate, and they had a licensed copy (which cost them a buttload.) Unfortunately, they couldn't sell it to the new potential owner because of the licensing restrictions. In effect, they were left holding a $200,000 set of disks that were useless without the computer. At the same time, the new customers were forced to go deep into the hole to purchase this exact same software from the company.
Seems like there're no issues there. In any case, software companies are developing increasingly sophisticated licensing and copy-protection systems for their products. If these systems work as advertised, one person can't copy the product and sell it off to somebody else. Of course all of these can be broken, but they can be broken regardless of whether software sales are allowed or not.
To me, it seems like you could say exactly the same thing about a book or a CD. Both can be copied before being resold.
Re:because... (Score:2)
Real crux of the matter - What IS software? (Score:3, Interesting)
But just because the 'software as a service' model hasn't worked yet doesn't mean it's wrong. Nor does it make 'software as a tangible good' or 'software as a tangible + continuing revenue' good.
In practice, it appears that after taking a considerable amount of time to bring a given piece of software up-to-snuff, it really is mostly done. Then, in order to treat it as a 'tangible + continuing revenue' product, you have to keep overdeveloping it, adding features and junk to 'justify' the continuing revenue stream. Hence the mess we call MS Word today, dancing paperclips and all.
The historical side of all of this is that software is sufficiently new, and the hardware it sits on has evolved so much that we've barely reached 'maturity' on anything. So thus far, software has had the appearance of tangible goods. I suspect that MS Office may be one of the few/first pieces of software to move past that category.
We're really talking about something fundamentally new in the past 20 years: Revenue for IP. Up until 20 +/- years ago, IP was sufficiently bound into some form of matter (books, records, etc) that it wasn't commonly distinguished from something physical. Now it is, due to super-cheap media like CDs and the ease of electronic distribution of the Internet.
Publishing (music, text, software, what-have-you) has always had two aspects, content creation and duplication/distribution. In a very fundamental way, the duplication/distribution part of the publishing industry is as obsolete as a buggy whip. But the duplication/distribution side is where most of the publicly perceived value lies.
Therefore the publishing industry is hanging on to that role as hard as they can, trying to keep their buggy-whip in the pre-automotive model, and using the government and copyright law to do it.
They're simply making too much money to let go of that revenue stream.
Same as prostitution.
easy to transfer windows (Score:5, Funny)
copying (Score:2, Redundant)
Re:copying (Score:5, Insightful)
The only think that makes software 'special' is the license agreement saying, "You don't own this item. You have the right to use the contents of it according to our restrictions, and exactly nothing else."
That's the key--not the copyability of it.
Re:copying (Score:2)
Re:copying (Score:2, Interesting)
I shouldn't be punished purely because I may do something I shouldn't. Let me at least have the chance to fuck up first...sheesh.
It is because of piracy... (Score:3, Informative)
Re:It is because of piracy... (Score:5, Interesting)
Just because the shrink wrap packaging has been removed doesn't mean that it's pirated. I tried to sell an old personal copy of Office 97 on Ebay, and Microsoft had the auction stopped. And my copy of Office was not a pirated copy - I bought it directly from a store. There is an appeals process where you can get Microsoft to allow the auction to be reinstated. Unfortunately Microsoft wanted me to show them the original receipt (which I don't have anymore). They also demand that when you sell Microsofot software, you must include *all* the original packaging including the box. Basically they stop all non-shrinkwrapped auctions of Microsoft software, and make the seller prove it's legit. Bastard jerks. They deserve all the piracy they get after this.
Re:It is because of piracy... (Score:2)
I am no big fan of Micro$oft, but I have a hard time seeing what is wrong with what you describe. Propriatary software is NOT free as in beer. While IMHO (IANAL) it is (or should be)perfectly legal for the original purchaser to re-sell his product (or license), it is also perfectly reasonable for the producer to enforce his right not to be pirated. If you don't have the original box, jewel case, and receipt, you very probably DON'T have a legal copy to sell.
I have been keeping PC software boxes and disks since 1983 (160k floppies anyone?). When we are darn sure we don't need that product anymore, we destroy it all, or sell it all in the original box. No box - no license.
Or am I missing something?
sPh
Re:It is because of piracy... (Score:2)
Software is licensed, not sold (Score:5, Insightful)
To take an example from another arena: if I write to one of the media syndicates and get permission to use a Peanuts cartoon in some publication I'm working on, I can't then grant others access to use that cartoon, because I don't own it.
Again, I'm not saying I agree or disagree with this particular way that people use/buy/license software.
Re:Software is licensed, not sold (Score:5, Funny)
Re:Software is licensed, not sold (Score:3, Interesting)
Re:Software is licensed, not sold (Score:2)
Re:Software is licensed, not sold (Score:3, Interesting)
Software is, typically, sold just like books. You go to a store, you buy the book. Just like you go to the store, and you buy the software media.
The book, like the media, is then owned by you. You have signed no binding contract, you are bound to no "agreements" beyond that of copyright law.
You may not copy and redistribute the book, NOT because it says you can't in the first few pages (which it almost always does), but because copyright law says you can't.
I would hold that this entire concept of ":licensing" and especially "shrink wrap" licensing where one is expected to be bound to a license AFTER having bought the software media in question, and without signing any formal agreement is a complete fabrication of software companies to foster this attitude.
This goes on all the time. Hell, I have a book that I recently purchased from a major bookseller. It was written long ago and the copyright has long since expired, as such, it contains no copyright notice... however the publisher STILL put a notice in the first few pages to tell me that I may not copy this book, in whol eor in part.... a paraphgraph with exactly 0 legal force whatsoever.
-Steve
Re:Software is licensed, not sold (Score:3, Informative)
No, you are wrong. Grammatical corrections AND language translation have been held by case law in the US to not be copyrightable. Books such as Moby-Dick(written in 1850-1851), under US copyright law, have no copyright protection. They are in the PUBLIC DOMAIN. You can, by law, copy them as often as you wish and mail copies to every one in the US.
Software, when purchased in a store is exactly the same. Before you are forced to read the shrink wrap lincense but after you purchase the product, you may sell it to whoever you wish. This is assuming that the shrink wrap lincense is legally enforcible.
UCITA legislation recently passed in Maryland and Virginia. One of the purposes of UCITA was to make shrink wrap licences legally enforcable. If you live in one of those states they are. If you don't they most likely aren't. But the courts are still wrestling with this one.
The best thing to do is to take a little time and go research the issues. You can find the laws online(no your laws[other than building codes, but thats another story] are not copyrighted!). You can find the case law on-line. Do the research and come to your own conclusions.
Re:Software is licensed, not sold (Score:5, Insightful)
Correct.
> If you don't own it, you can't sell or resell it.
That's not entirely correct - IF the contract that you signed, gives you permission to sell/resell the thing you have licensed, then you can sell/resell it.
The contract may also be a pseudo contract ("First Sale Doctrine")
i.e. you have the right to sell music you buy, because it is "reasonable" that buyers have the right to sell what they purchase, even though you DIDN'T sign anything claiming privileges were transfered to the buyer.
Things to think about:
- If you don't own the software you have licensed, do you own the car you have "licensed" as well ?
- Who owns your time and goods, if you need a "license" to engage in business?
Remember, what does a license mean? Legal permission to do something, that normally you wouldn't have.
Re:Software is licensed, not sold (Score:3, Insightful)
You buy the car and own it outright. The license gives you the non-transferable right to operate the car on public roads.
- Who owns your time and goods, if you need a "license" to engage in business?
You do. The license gives you the non-transferable right to operate the business. I'll granted that the gubmint controls your time and goods, but they do not own them.
Re:Software is licensed, not sold (Score:2)
No, but you can sell your entire publication, including your archive of past editions containing the Peanuts cartoon, to another publisher. Generally speaking (IANAL) as long as the new owner abides by the original license (e.g. pay UFS for each back issue sold) they can't prevent this transfer.
sPh
Re:Software is licensed, not sold (Score:3, Insightful)
This anology isn't quite right. When you purchase software, you purchase the right to use it, not the right to dristribute it. It's more like if you bought a Peanuts book and read it. Don't you have the right to give the book to a friend?
No lawyers are banging down the doors of used book stored, that's all I know.
Re:Software is licensed, not sold (Score:2)
This makes no difference [in the UK], you own one copy of the licence, which you can [re]sell. manufacturers or retailers cannot impose limitation or conditions that counter your statutory rights. Indeed the courts take a very dim view of those that try to limit your rights through unfair trading practices.
Re:Software is licensed, not sold (Score:3, Interesting)
The license will still be owned by me, and it will be operated on only one computer. How is this not legal?
In fact even though I own the license there is nothing to stop you from doing the install yourself as long as ownership of the license remains with me. This would require a bit of trust, but doesn't seem to be at odds with transferring the license.
Caveat Emptor (Score:3, Insightful)
car, in the event this car is no longer used, send it to the nearest junkyard.", so
why is this true for software?
It's true for software because the buying public has come to accept it as a condition for using the software licenses that they purchase. Obviously cars aren't software, particularly since when you buy a car, you buy the car. In a way, of course, a lease is like a license to use the car and, I suppose, the lessor could put that language in the contract, but the buying public wouldn't accept it. The bottom line is the subject line.
-h-
Not true (Score:2, Interesting)
I certainly don't accept it. I ignore it.
One of my favorite places to buy software
has been at used PC shops. They often had
quite recent copies of used software, in-the-box,
and with all the docs.
I don't see MS running around trying to close
these little shops down.
Re:Caveat Emptor (Score:2)
In a way, of course, a lease is like a license to use the car and, I suppose, the lessor could put that language in the contract, but the buying public wouldn't accept it.
They most certainly do. What car lease do you know which is transferrable? Car leases are almost always non-transferrable. They don't tell you to throw it in the trash, because not only can you not sell it, you have to keep it and make sure nothing bad happens to it. At the very most, on an open ended lease, you can return the car in perfect condition and stop paying your lease payments.
Cause you never buy anything... (Score:2)
How long before... (Score:2)
Your hamburger comes with an EULA
In Germany you are allowed to do this. (Score:4, Informative)
Re:In Germany you are allowed to do this. (Score:4, Insightful)
Your facts are legitimate, but your conclusion is illegitimate and downright wrong. The DMCA is a revision to copyright law that prohibits trafficking in circumvention devices. It has nothing to do with the enforcability of End User License Agreements. There is a law which is being supported at the state level called UCITA which deals with this topic.
Obfuscating the purpose of the DMCA lessens the logicical correctness of our argument against it and in so doing weakens our cause. In the future, please be more vigilant.
Re:In Germany you are allowed to do this. (Score:3, Informative)
Though I'm not absolutely sure about the latest licences, courts have in the past upheld that the licence in effect is nothing more than the right of the owner to run / use a single copy of the software at your own discretion.
Anything else was considered frivolous.
This means for instance that when you've bought a computer with a Dutch version of Windows there is nothing stopping you replacing it with a copied / borrowed English version. Because you do own a licence to run Windows.
And the courts have clearly seen no tangible difference between the various language versions.
Legality doesn't matter (Score:5, Insightful)
In other words, unless you are guaranteed to win the case, you're not likely to take MS to court over their license agreement. At that point, the license agreement becomes a de facto law.
software AND licenses? (Score:2)
i was going to ask 'imagine if computer hardware was the same way' and then i immediately realised we are definately moving in that direction. ditto for televisions, etc, anything which can access digital media.
zero-cost duplication is a beautiful thing. too bad it would destroy most 'modern' companies ability to function.
remember when 'modern' meant something like 'forward-thinking'? now it seems to mean the opposite. the modern age is over. something else is here, and it may be a dark age of information if these 'modern' companies are able to hold onto the past as well as they are trying to.
-sam
Re:software AND licenses? (Score:5, Insightful)
As long as we "know our place", pay our Microsoft tax, and don't speak against our lord and masters, they'll graciously allow us to use their software. However, anyone who dares speak out risks loosing everything.
With no real competition, large corporations can make demands that would have been unthinkable a few years ago - all we can do is accept. In the digital age, software is no longer a luxury, and it becomes increasingly difficult to function without it. Those who control that software and can dictate the terms will have more power than any government - and who do they answer to?
Even a land-owning aristocrat could take pity on his peasants now and again, but a corporation is a soulless entity who's only concern is maximizing profit.
doctrine of first sale (Score:5, Informative)
I believe this was subsequently written into law for records, but this may have been turned on its ear by passage of UCITA, which gave EULAs teeth.
Re:doctrine of first sale (Score:5, Informative)
This, I believe, is the applicable US law.
U.S. Code, title 17, chapter, section 109 [cornell.edu]:
Re:doctrine of first sale (Score:2)
This, I believe, is the applicable US law.
IANAL, but I still guarantee you you are allowed to resell software under the first sale doctrine, as far as federal law is concerned. The problem is that contracts are generally governed by state law, and if an EULA is deemed to be a binding contract, you can still be sued under breach of contract (not copyright law). There are many many caveats though, not the least of which is that states cannot make their own copyright law, because the federal government has the exclusive right to make copyright law. If the states decide to try to enforce this is will be a long and hard battle. If the federal government tries to enforce it it'll be an open and shut case, and Microsoft will lose.
Re:doctrine of first sale (Score:2)
In that case it depends upon how to aquired the software. If you signed a contract *before* Microsoft gave it to you, then you have purchased a license to use their software. BUT - If you walk into a store, buy a shrink wrap box and purchase it from a retailer, then the US Commercial Code considers you the legal owner of the copy.
If M$ is claiming that you have only licensed the use of the software, then let's see their signature on the lease agreement.
Re:doctrine of first sale UTICA (Score:2, Informative)
An article about the Uniform Computer Information Transactions Act [pcworld.com]
Re:doctrine of first sale (Score:2)
UCITA like DMCA is illegal and anti-constitutional because they don't respect jurisditions and other base constitutions laws (like 1st ammendment and more)...
UCITA is state law. The constitution has very very few restrictions upon state law. The first ammendment is completely irrelevant anyway, because no state government is restraining free speech (you'd want to base it on the 14th ammendment, anyway, since the 1st ammendment does not apply to states, only to congress, except through the 14th ammendment's partial incorporation).
Car Leasing (Score:3, Insightful)
If you sold a car you were leasing you would be tossed in jail for grand theft auto, it's sort of implicit in the idea of lease. Which is why MS and others are moving (back to) a software leasing model.
Taking sides (Score:2, Insightful)
We could call it a new DMCA: Deny Monopolistic Corporations from being Assholes. :)
You have to copy software to use it. (Score:5, Informative)
Yep, I know it sounds stupid (and means, for example, that online documentation has more restrictions than the exact same information printed on paper). But there are federal legal precedents for that interpretaiton. Check out, for example, MAI vs. Peak Computer [nd.edu], from 1993.
IANAL.
Re:You have to copy software to use it. (Score:2)
Copying isn't copying if the data isn't rewritten to a different permanent medium than the original.
What bout music? (Score:2)
The DMCA and UCITA have given software licenses some bite where before they were nothing but bark. I fully expect to see a great deal more of this sort of thing.
Buying software is more like buying a music CD/record/tape/etc. than it is like buying a car. You are buying the *right* to use the IP in a limited way. The difference is that the record companies have not yet managed to prohibit reselling of their media. Give them time.
--john
Here is the skinny... (Score:5, Interesting)
I've considered suing Microsoft regarding all of this (seriously) but have put that on the back burner for now.
Microsoft is of the opinion that they never sell their software, they only license it. Most people who have some MS CDs sitting around got them in one of two ways, either bundled with hardware or in a retail transaction. Those two cases are handled differently.
In the case of bundled software, MS requires that it be resold with the orginal hardware. Since systems can be upgraded, they are pretty reasonable about what they will consider to be the original hardware. Since eBay can't police exactly what hardware is being sold with what software, you see people selling Microsoft Windows with broken hard drives and stuff like that. When I have to sell something and include some hardware, I usually tape a capacitor inside the envelope (no shit).
In the case of retail packages, Microsoft requires that you sell the software complete with everything that was originally in the box. So if you threw away the friendly pamplet on "ten reasons you will love the talking paperclip" then you have rendered the rest of the package unsellable in the eyes of MS.
One good way to get around all this is to use the "Buy-It-Now" feature of eBay. List your item with a reasonable BIN price and it can get snapped up quicker than MS can have it canceled.
Asta!
Re:Here is the skinny... (Score:2)
It's not impossible, but it is doable. IANAL, but my brother-in-law was telling me about this when he was in law school.
Tracking and Verification Next (Score:5, Insightful)
It is true that software has a more ephemeral quality than other products of our modern civilization, but the trend is clear. The Music, Publishing, Broadcast, Cable and Movie industries are taking notes, and getting more viscous and devious in their pursuit of squeezing every possible dime of revenue from the public.
What make this all the more insidious and timely is the tracking and invasion of privacy most of these schemes require to enforce. Encryption is a bandaid that will never work without tracking and verification. If companies offered a good product at a fair price that we had complete control of how we wished to use these products, software pirates, cable tappers, CD rippers, would be seen as petty criminals instead of modern day robinhoods.
Mark my words in the wake of the WTC bombings, media companies of all types will jump on the band wagon of information tracking, where no individual may view or own any type of information without someone, somewhere, knowing what they are looking at.
It doesn't get much more Orwellian than this.
FYI: In Germany selling OEM software is legal (Score:2, Informative)
But of course MS raised the bar and now nearly all preinstalled MS versions are delivered with "recovery only" CDs, which simply don't make sense on a different computer
Bye egghat.
Why this has continued... (Score:2)
P.S. There have been studies showing that over 90% of software sold on ebay.com is pirated. Even if 10% should be allowed, if you were an honorable software company selling useful software, would you want these 10% to benefit while 90% being pirated software cutting into your revenues?
P.P.S. I do not necessarily believe all of the preceding comments, I simply wish to advocate logically for a source that does not find much sympathy on this site.
LEGALITY OF LICENSES... (Score:2, Interesting)
Just MS? (Score:2)
Here's what Microsoft is really afraid of (Score:5, Funny)
Here's Microsoft's worst nightmare (assuming that Microsoft is a collective entity that can think and dream):
Person A has a copy of Windows but doesn't want it. Person A just wants to get rid of the piece of junk, so Person A's asking price for the software and license is very low.
Person B sees a good deal on Windows from Person A and takes advantage of it. Person B notices that there are more people like Person A, giving Person B an idea.
Person C is being audited by Microsoft and is knee-deep in bovine excrement. Once the manure truck accident scene is cleared, Person C continues on to work, trying to figure out how to deal with the Microsoft situation.
Person B saw Person C at the scene of the accident swearing about some "Microsoft bullsh1t." Noticing that the manure truck didn't have Microsoft painted on the side, Person B realizes that Person C is being audited by Microsoft. Person B decides that the time is right to act.
Person B visits Person C's workplace and proposes a solution to the Microsoft problem. After some negotiation, Person B sells the necessary number of Windows licenses to Person C's company, at a substantial profit.
Person A is happy to be rid of Windows, Person B made a nice profit, and Person C didn't have to pay Microsoft off. Microsoft loses "potential sales" and doesn't get to torture Person C's company anymore.
Then Microsoft wakes up screaming, but realizes it was all a dream, making note to take action to prevent this horrible thing from ever happening. After reading "The Little Monopoly that Could," Microsoft was once more asleep, content that nothing could harm it.
The End
license to drive (Score:2, Interesting)
Does Joe Blow now have the "right" to drive?
Software licenses work exactly the same way. You have the right to use, but not to transfer the right to use.
Re:license to drive (Score:2, Insightful)
Software licenses work exactly the same way. You have the right to use, but not to transfer the right to use
No they don't.
Speaking of Licenses (read yours!) (Score:2, Interesting)
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Soon this won't even matter (Score:2, Insightful)
It seems to me... (Score:2)
Ever since UCITA passed here in MD I've been tempted to go to stores and buy copies of Windows, and return them opened the next day. Since I'm bound now by the license in the box, and I must open the box to see the license I am legally in the right to return the product if I refuse to agree to the license. It shouldn't matter what the return policy of the store is.
modifications (Score:2)
No one would own (or lease) a car if the contract said, "You must not sell this car, in the event this car is no longer used, send it to the nearest junkyard.", so why is this true for software?
No one would own (or lease) a car if contract said, "You must not make modifications to this car and sell it unless you give the instructions on how to make those modifications to the new owner". Or if it said "You cannot add a stereo system to this car, thus creating a derivitive work, unless you release that stereo system under the GPL".
So why is it that the GPL tries to do this for software?
Bad analogy (Score:2)
I imagine there might be a case for a lawsuit if you made your car run on Russian rocket fuel or some such thing and didn't tell the guy you sold it to. So, integral modifications are already covered.
Can we get away from comparing apples to socket wrenches?
because you'll still buy it (Score:2, Insightful)
Software Donations (Score:2)
Maybee the EFF could set this up. You would be able to buy great software like Excel97 for peanunts, and M$ would get the shaft. Licence management would be tricky, but as long as you have the origninal CDs and certificate of authenticity I doubt M$ could have any valid legal claims.
First sale doctrine, etc. (Score:5, Interesting)
The difference with software is less because of the less tangible nature of the product (bits aren't tangible, but the CD and manuals certainly are), but that judges are over-impressed with arguments that cyberspace is different. And precedents concerning software license agreements were set several decades ago, when the judges were not sure whether copyright law covered bits at all, and software patents were even more dubious, so the (then generally quite reasonable) license agreements were the only real protection software writers had. Since then the copyright law has been amended to clearly protect bits, the old ban on patenting mathematical algorithms has somehow disappeared, and so software does not need license agreements to protect against piracy. But they are still putting out those license agreements, and getting more unreasonable about the terms every year.
Maybe eventually enough technical savvy will filter into the courts that the judges will decide that software should sell under the same rules as everything else. That does not imply just the first sale doctrine -- what would really hurt MS is if the courts decide to apply the UCC's mandatory warranty of merchantibility to consumer software sales -- that is, if software follows the usual rules, the software vendor would be responsible for the software working _right_ in home computers. Given that possibility, their continued pushing of egregious license agreements and on-line activation seems almost like a corporate death wish, an attempt to push until they fatally tick off some judge.
But right now it might be more effective to agitate for legislative action, instead. The software vendors may be flooding Congress with contributions, but the corporations that buy software instead of selling it outnumber them many times, and they are getting hurt by this !@#$%^.
We need an anti-UCITA:
First Sale: Purchasing an individual software distribubution gives you the right to put it on any one computer of your choosing, to resell it, give it away, or even loan it as long as you can ensure it is operable on only one computer at a time. (Note that this does not apply if it is leased, not purchased, but the package had better make it clear that this is a lease for a specific time period. Also, it does not apply to site licenses, IF the full licensing agreement is presented before the sale.) Nor can individually purchased software be locked to the first computer you install it in, or shut itself down after a time period. If the vendor chooses to install and use a remote-shutdown feature to combat piracy, then if they shutdown a legal copy, they are liable for $100/hour until it's back up, and all incidental and consequential damages.
Implied Warranty: The UCC law makes many common "limited warranty" clauses null and void, like one saying that if the steering linkage falls off your car, your heirs are entitled only to a new steering linkage. Per UCC, the carmaker is responsible for the accident, too. Putting software fully under that now would put software vendors out of business, but as long as they get off scot-free for bad quality and even get to charge you for the bug-fixed version, most of them won't improve their quality. We need at a minimum the right to take the software back and get a full refund if bugs, which prevent it from operating as advertised, are not fixed promptly and at no cost. Also there should be compensation for phone bills and time and hold, and punitive damages when tech support tells you it isn't a bug and they already know about it.
Article in Wired October 2001 (Score:2)
'You cannot own software- but we can own YOU' (Score:2)
Microsoft 1990: "Keep using Windows because you'll have to buy all of your old software again if you switch."
Microsoft 2001: "Users do not and cannot own software. Transferring from one computer to another requires a special license and transfering ownership is prohibited."
You may have noticed that most commercial software is so bad that users wouldn't want to transder it onto a new machine.
There's also the issue of registry faults as an inadvertant form of copy protection...
"Software as a Service" (Score:2, Insightful)
After this changeover happens (when/if it happens) they'll probably provide freely downloadable thin clients for Word, Excel, etc, and you'll have to pay whatever they determine the market will bear (because even Microsoft has to consider what the market will bear, whether they are correct or not is another topic) per month, per product you want to use.
In this situation there's no tranferrable license you need to worry about because you give away the only software you distribute to anyone for free, as it's useless to those who don't subscribe. You control the only software with any functionality and no one other than yourself will possess that software. Anyone else running a server that allows people to use Word that you haven't specifically allowed couldn't have bought it anywhere because you don't sell it, then you're well within your rights to throw them in jail for theft.
This is very uncapitalistic (Score:4, Insightful)
IMHO one of the great things about ebay is that it brings capitalism to the masses. Millions of people all over the world can now now make their lives more efficient (in an economic sense) by trading even the most trivial things that they own. It's a grand bazaar where everyone profits. So it's not surprising that we see EULAs in conflict with the philosophy of ebay.
EULAs are anti-capitalist. They are the product of a lobby economy - one where people who bribe politicians get to determine where resources in an economy should go.
Re:This is very uncapitalistic (Score:3, Insightful)
There are, as far as I can see, (at least) two ways to view things like constitutional rights. Either they exist because they are basic 'natural' human rights that exist for their own sake - or they are a means to an end. For example I think property rights are a good thing not just because individual people want to have them for themselves. They are also good because private property and the right to trade it gives an economy where people try to maximise their utilities and the net result seems to produce a far better (by many standards) allocation of resources than, say, a command or feudal economy.
The reason we have things like intellectual property rights is similar - it encourages innovation and it means that everyone as a whole can get to use intellectual property to the advantage of lots of people.
But it seems to me that we've shifted towards the former view more. Companies aren't interested in innovation etc. They are interested in protecting their 'rights' (whatever the 'right' of an abstract entity means). I believe we have lost sight of the reason for having a capitalist economy in the first place. So in a sense I think that practises like EULAs are turning us away from what capitalist economies are meant to be for.
What happened when I sold my Everquest CD on Ebay (Score:2, Informative)
Specifics (Score:2)
My Sis (Score:3, Insightful)
A few years ago, microsoft were really trying to stamp out companies selling grey imports: Basically turning up at the office of some tiny company one monday morning with 15 lawyers and 70 boxes of legals. These companies closed down pretty darn quick. However, I think one of these companies took the case all the way to the EU court and won! Hence, my sister is now safe in her business.
I'm sorry I cant rember the exact details, but my sister has this great legal schpiel whenever anyone accuses her of being a crook - EU case numbers, reference subsections, grand judge rulings (I'll try and get her on slashdot later to fill in the details). All I can remeber about her little diatribe is that it usually ends with the sentence "Microsofts license is almost as buggy as its software".
She has allways been a good bussinesswoman & salesperson (she even managed to flog me one of those millenium bug kits, convincing me my computer would die otherwise, even though I know for a fact ahe actually knows nothing about computers!).
A while back she was approached by one of the major linux distributors about being their UK distributor. She took one look at the GPL and almost died laughing. I remember her words:
"How the fuck am I supposed to make money selling this? It makes the MS licence look good."
As I said, she's allways been a good bussinesswoman!
Here's why..it's an ongoing battle. (Score:4, Interesting)
To Microsoft, you are not 'purchasing' a product. You are *licencing* software. This is fundamentally different than buying a car, or a book, or anything else, where there is a definite product. This is how they try to tell you you can't re-sell it.
Now.. the problem is, according to the average consumer.. it LOOKS like a product, you can walk into the store and buy it off the shelf.. there are no negotiations, no lawyers involved... just a click-wrap agreement that we all know nobody reads.
Stores *Treat* it like a product.....
So it's a deception.
Time to get the CA AG again (Score:4, Interesting)
Selling Licences (Score:3, Interesting)
When you buy some software, or a book, or a record, you own the distribution media, and a licence to use the material contained thereon. Even though I don't own "Amipro" or "Imagine" or "Regular Polytopes", I do own a licence to use a copy of it on my machine. Buying any of these do not give me the right to set myself up as a redistributer.
So, technically, you don't own the copyright to the software, you do own the right to use a copy of it, and to hold such backups of the media as allowed in the agreement.
And it is that right that you might transfer under the cover of sale.
the revolution will not be televised (Score:2)
-sam
Re:Nothing is special... (Score:5, Interesting)
However, if I buy software from Best Buy or Fry's or Computer City without signing a lease agreement, in standard retail parlance I haven't leased (or licensed) anything. I *bought* it. I don't think we need to worry about Joe Sixpack revolting, Joe Sixpack will just bitch about it over Buds during commercials on TV. What we need is for corporations and businesses and people with legal ability to take a stand against this sort of crap, instead of knuckling under when the BSA comes calling with their extortion racket.
Re:License to drive (Score:2)
You have a license to drive any car. (Actually, there are some restrictions, but it's basically the case.) That's very different from having a license to drive a 2001 Saturn SL2 with the serial number 0391948409402028. With a drivers license you can drive pretty much any car you come across. The assumption being that you will either own the car or have permission from the owner to drive it.
A software license is really closer to leasing a car. If you sold a car that you had leased, you'd be in big trouble as well. I'm not saying it's right for software to be that way, only that it is.
--Ty
EULAs on books and music (Score:3, Insightful)
Further, book publishers have recently been getting miffed that public libraries let people read books without having to buy them, and are looking to set higher prices for public libraries, or worse yet, to ban libraries from making certain books available. (I'm having a problem finding a reference for this.)