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U.S. Court Ruling Nixes EULA Sales Restrictions
Posted by
Hemos
on Wed Nov 28, 2001 02:29 PM
from the interesting-twist dept.
from the interesting-twist dept.
Raziel writes: "The Register is reporting in this article that a district court has ruled in favour of "software users that wish to extricate themselves from restrictive software licenses". The case in question is Adobe vs Softman, and in its ruling, the District of California seems to vacate Adobe's claims of "irrepairable damage" caused by the resale of Adobe products without forcing the use of Adobe's registration process. The full ruling is available in PDF format here. Any chance of a precedent here?" You can also read the Don Marti piece piece that sparked this discussion.
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This is good news. (Score:3, Interesting)
By the way, I thought it funny that information on this decision against Adobe was available in PDF Format... heh.
irony (Score:5, Funny)
Alanis, Irony, and meta-irony (Score:3, Funny)
If so, then Isn't it Ironic is a rare example of meta-irony in art (or pop).
And isn't it ironic that Isn't it Ironic, by being meta-ironic rather than simply ironic, further confused people about what is and isn't ironic?
Reselling Software... (Score:5, Informative)
The judge, in the case Adobe vs Softman heard in the Central District of California, has ruled that consumers can resell bundled software, no matter what the EULA, or End User License Agreement, stipulates.
So, if this ruling is upheld by the Supreme Court, does that mean that Ebay users, harassed by Microsoft and others for reselling software, would be able to (1) Resell their software and (2) Sue the software publisher for not allowing them to resell?
Re:Reselling Software... (Score:3, Informative)
Re:Reselling Software... (Score:3, Insightful)
The "ex post facto" protection means that you cannot be prosecuted for actions that are now illegal but were legal when you did them. "ex post facto" only applies to the passage of new laws, not to a judicial reinterpretation of an existing law.
So Ebay was holding users to a higher standard than it turns out the law actually requires. I don't know if this would be grounds for a civil suit, though - Ebay can do pretty much whatever they want on their private servers, you know.
IANAL and haven't slept much of late, though.
Re:Reselling Software... (Score:3, Informative)
It should have no bearing whatsoever, because:
The eBay/Microsoft issues were never about law, and always about eBay policy.
impact on upgrades? (Score:5, Interesting)
For example, I upgrade from Crapsoft 3.1 by buying Crapsoft 4.0 and get a rebate on Crapsoft 4.0 because I have a 3.1 UPC symbol.
So can I sell Crapsoft 3.1 to someone because I am no longer using it and I made two purchases and am only using one?
Re:impact on upgrades? (Score:3, Insightful)
However, something you can do is go buy version 1 of something at a swap meet for $10, and then get the $50-100 off the upgrade.
I wonder what this means for preinstalled software (Score:5, Interesting)
What if the software is installed by default. Software that has a clickthrough or registration screen built in on first use will probably still be covered, but other stuff may not be.
Re:I wonder what this means for preinstalled softw (Score:4, Interesting)
I got in trouble for donating 500 licences of MS Office 98, and MS windows that had been bundled with our machines when we changed to all open source. Apparently the IRS does not consider donation of microsoft software as a charitable contributuion of any value.
In the non-bundled reatil world, hasn't this been happening a EB and Software etc. for ages? I would beat a game, trade it for a little cash or a credit at the store. I guess when you do this online there is no way to know weather the software is on the original media or not.
Parent
'Donations' of copies of software (Score:4, Insightful)
Interesting... I thought Microsoft managed to 'donate' thousands of CDs costing $0.50 each to manufacture and write it off against tax at the full retail price of that software. If the IRS counts it as tax-deductible when Microsoft does it, why is the ruling any different when another party makes the same donation?
Parent
Who owns what? (Score:3, Insightful)
Makes sensee to me, but the EUlA makes it clear that they don't own anything!
This one will go to the Supreme Court.
Re:Who owns what? (Score:3, Informative)
Dan Bernstein's site is more than a little muddled, but at least he gave a good link to the applicable Federal law [cornell.edu].
The law makes a clear distinction between ownership and possession.
No UCITA; meaningless (Score:4, Informative)
For clarification, I've attached this flowchart [160.79.249.139] which demonstrates the relationship between the corporations of America (Adobe, Sony, the RIAA, the WTO, etc.) and the people of America. The people are represented at the bottom; the Corporations at the top.
Please, don't keep thinking you can step out of line.
Re:No UCITA; meaningless (Score:4, Insightful)
Parent
Re:No UCITA; meaningless (Score:5, Insightful)
Since it it is in Federal court, whether or not a state has passed UCITA is irrelevant, as the decision doesn't involve state law of any kind. I would assume that for the time being it only applies to the district in which it was decided, but as it works its way through the Federal system it should apply to all residents within that jurisdiction. Presumably Adobe will apeal it to the 9th Circuit, but that tends to be a fairly liberal circuit and would likely side with SoftMan. So it would likely go to the Supreme Court that with its current makeup is more likely to side with Adobe both because the user agreed to it, and because the lower court has the appearance of making new law. Consumers would probably be best served if the Supremes decide not to hear it, since most major software companies are in the 9th circuit and would for all practical purposes be bound by any decision of the 9th circuit.
Parent
Could backfire on consumer (Score:5, Insightful)
Re:Could backfire on consumer (Score:3, Insightful)
So, for all practical purposes XP is a leased product with an indefinite expiration date. If Microsoft was honest about this, the box would say in large letters "This product is not sold, it is only leased until such time as we decide we want you to buy a newer version and stop supporting the activation codes." But that might sharply cut into their market...
Ruling contradicts the DMCa (yay!) (Score:5, Insightful)
According to the judge:
If you put your money down and walked away with a CD, you bought that copy, EULA or no EULA
So, if you bought that copy, and you own it, it is yours. And according to property law, I can do what I want with what I own, including disassemble it. Correct? So therefore, I can defeat any copy protectoin schemes on the software I buy. Correct? Does this not contradict the DMCA? Assuming a DVD is software, this makes DeCSS totally legit. Hopefully the SUpreme Court will uphold this ruling, and it can be used in DMCA cases!
First Sale (Score:3, Insightful)
Rather than completely invalidating the DMCA, this ruling is a lot more likely to be one of the many holes being poked in the whole 'intellectual property' balloon.
IANAL, but from what I read, what it does do is more or less state that data... software in particular... is not immune from first sale doctrine. You're breaking copyright law if you make copies and give them away. You're not breaking the law if you decide to sell your extra legit Windows ME/2000/XP CDs after you install Linux.
This has important ramifications, because there is a very minor difference between applications and data of any other kind. It's not precident setting in and of itself, but it could be used to help set a larger precident.
Impact on Windows EULA (Score:3, Interesting)
So would this ruling also protect those people that want to sell their bundled copies of Windows or donate them to charity [slashdot.org]? If so, this could be an even more significant ruling than it appears, as MS's business strategy relies on those copies being worthless to get people to buy more licenses or buy newer versions than they want.
Hooray! (Score:4, Insightful)
Nice ruling, but... (Score:3, Insightful)
Don't break out the champaigne yet (Score:4, Insightful)
This ruling is very good to see, but we should not get our hopes up too much. I can't see the text of the ruling (slashdotted already I guess) but the idea here was (I gather) that EULAs didn't apply because the buyers never installed or used the software, so never got the point of clicking through a license.
This is extremely important for even though the Don Marti article stated the judge determined that "if it looks like a sale it is a sale, EULA notwithstanding". The ones who sold the Adobe software hadn't seen or agreed to the EULA at any point.
The problem is contract law - if the software vendor (Microsoft for example) can point out that you DID click "I Agree" to their EULA then the game is basically over. That EULA will be upheld as a contract between you and the vendor - and in a contract you can surrender any (almost) rights you want to. Including agreeing to "license" the software instead of "buying" it, surrendering the right to resell it, reverse engineer it, etc.
As far as I can see it, reselling your old Windows CDs will still be contested by Microsoft. But, on the bright side, now at least you can sell the Windows CD that came with your laptop as you wipe the hard drive to install Red Hat.
Good decision, but not in this case (Score:4, Insightful)
If you buy a copy of Adobe Photoshop, don't open it, and want to resell it, I'm right there with you. If you buy an Adobe package, take what you want from it, and sell the rest, I'm not down with that. This should be a case of standard rules applying to software as well as regular goods.
Re:Good decision, IN this case (Score:4, Insightful)
Everything I have seen says: "Not Labeled for individual sale". I think this is to protect the end-user, not restrict the seller. This is typically seen on food, since the FDA (government) has strict laws on nutriational labeling.
If I buy a new Car and want to totally strip it and sell the pieces, there is no law (or agreement with the car company) that says I can not do that.
Parent
Nice, but won't matter (Score:5, Insightful)
Hmmmm (Score:3, Funny)
Precedent and Jurisdiction (Score:3, Informative)
IANAL, but I have played one in a courtroom :-) so take what I say with a grain of salt. That said, I notice a lot of people talking about "precedent" and making all sorts of claims as to how this should apply to circumstances other than this particular case. Just two things to consider:
First, precedent is just the statement that this is the first time a given issue of previously unclear legal status has been decided; but just because a court has set precedent with a decision doesn't mean that it will decide a case of _similar_ merits the same way in the future (precedents don't extend beyond the circumstances outlined in the decision itself). So, don't assume you can interpret this decision to mean that all SIMILAR circumstances will be decided the same way, even by this same court! It is also NOT the case that all sweeping decisions set precedent (for example, if the Supreme Court does not accept a case, it doesn't mean that the decision it refused to reconsider becomes precedent for the entire country).
Second, consider the jurisdiction. EVEN IF this decision sets a sweeping precedent and makes a previously unclear legal issue crystal clear in all similar cases, it only applies within the jurisdiction of the court that rendered the decision (here, the Central District of California, one of 94 U.S. District Court jurisdictions). The precedent doesn't apply in ANY other jurisdiction (although it is often a powerful argument that can sway judges in other jurisdictions); it is often the case that appeals to higher courts (particularly the Supreme Court) are accepted based on CONFLICTING precedent setting cases from different jurisdictions. So, don't assume that this decision will protect you if you live in some other part of the country, EVEN IF you are in exactly the same situation and find yourself in exactly the same lawsuit.
Excellent News (Score:5, Insightful)
I read most of the decision a couple of weeks ago. Indeed, a ray of enlightenment seems to have struck the California courts.
Adobe complained that Softman wasn't allowed to unbundle the Adobe Collection, as that was a violation of their license. According to my (inexpert) reading, the court applied what I call the "duck test" to the transaction that took place between Adobe and Softman: If it looks like a sale and walks like a sale and quacks like a sale then, no matter how persistently and shrilly you call it a "license," it's a sale, because that's the behavior you engaged in.
The court stopped short of stating that the EULA was non-binding. Since Softman never installed the software (triggering the EULA activation clauses), there was no need for the court to address this point. So whether EULAs are binding is still an open question. It may be possible to argue that, if one purchases the software but then refuses the EULA, the terms of the earlier sale apply. That means you would get to use your software, no matter what the EULA says (U.S.C. 17, Sec. 117(a) [cornell.edu]).
Perhaps Slashdot user Werdna would care to chime in with a more expert analysis?
There is the danger that software industry lobbyists will now lean harder on the California legislature to get UCITA rammed through. So if you're a Californian, get on the horn to your state representative and tell them, as a consumer, you're very happy with the court decision, and that UCITA would undo their good work and should be avoided.
Schwab
GPL? (Score:5, Insightful)
The judge, in the case Adobe vs Softman heard in the Central District of California, has ruled that consumers can resell bundled software, no matter what the EULA, or End User License Agreement, stipulates.
So does this mean we can resell GPLed software without distributing the source code?
Uh, obviously not. (Score:3, Interesting)
IANAL, but this obviously doesn't have anything to do with copyright law. You can't resell copies of this software or otherwise infringe on their copyrights any more than you ever could. The GPL gives you rights to copy above and beyond copyright law, and when used it is the only source of those additional rights, so you follow the rules or don't play.
This ruling would just mean that you could go out and resell that RedHat or Debian CD you bought. And, gee, guess what... you already could. ;-)
Sure, if you're a bastard... (Score:4, Interesting)
Person A downloads the GPLed software, makes whatever changes he wants to. He sells this software to Person B, along with the full source code; thus he is complying with the GPL. He doesn't have to give the source code to anyone but person B, because he's not distributing binaries to anyone but person B.
Person B then resells each copy of the software, without source code. He is not complying with the GPL, but that's okay, because he didn't agree to it. He is just exercising first sale rights that copyright law gives him.
The end result? Both people make money, both are obeying the law... but the spirit of the GPL gets raped.
I am (obviously) not a lawyer, but it seems like a legitimate scam to me.
Parent
Re:GPL? (Score:3, Interesting)
Aside from unbundling source code (which again, would probably only be legal if they were on different cds), the GPL does not restrict anything that first sale allows. In contrast, the GPL allows many things that first sale does not, for example unlimited redistribution, unlimited copying, redistribution of modified versions (so long as source code is made available), and so forth.
So, Microsoft could, for example, buy a Red Hat boxed set, and then resell it. They might be able to buy it, and sell the binary cds by themselves. They could not, however, buy a boxed set, hack the source, and incorporate elements into Windows XP II, or Windows YP , or whatever they plan to call the next one, without running afoul of copyright law.
Submission rejected; I'll repeat... (Score:3, Insightful)
but Hemos' made it, I'll repeat myself here.
This case does not establish precedent. It
is binding only upon the plaintiff and defendent.
The federal district courts (by the way, there
are three federal districts in California) are
considered trial courts. From there, the case can
be appealed to the federal circuit court (9th
circuit includes California), and from there to
the U.S. Supreme Court. Only if the U.S. Supreme
Court agrees to hear the case and returns an
opinion is it binding nationally. If the federal
circuit court upholds the district court's opinion,
it's binding to those federal districts that fall within the circuit.
But not on the states themselves. States are bound
by their own appeals and supreme courts, and by the
U.S. Supreme Court, but not by the federal district or
circuit courts. Think hierarchy.
Slashdot pisses me off sometimes (Score:3, Informative)
* 2001-11-01 22:49:31 Federal Court: Adobe Software is Sold, not Licenced (yro,news) (rejected)
But nearly a full month later they realize it actually is news! Old news, but news.
It is a fantastic opinion justifying the decision that everyone should read if you haven't yet.