U.S. Court Ruling Nixes EULA Sales Restrictions 269
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.
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)
What do you mean "Not Ironic" ? (Score:2, Insightful)
Ever since people pointed out that the examples in "Isn't it Ironic?" aren't actually ironic, a peculiar breed of sub-moronic language nazi has sprung up that attacks all reference to the concept, sneering down on people who so boorishly "misuse" the word, without actually appearing to have the faintest clue of what irony is.
So please stop standing on your head to look down at others. That direction isn't actually down.
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:2)
You are correct. Judicial interpreation doesn't change the law, it merely clarifies what the law actually is (at least, that's the theory :)). This allows the court to formulate a precedent and apply it "retroactively" to the pre-existing facts of the case in which the precedent was formulated.
You can certainly use a new precedent to launch an action or appeal in a case that pre-dates the precedent, but whether you can do so usually depends on limitation of actions statues, which put deadlines on the time by which you have to file suit.
Hooray .... (Score:2)
Better yet - maybe I should start a cut-price PC house and buy my licenses from annoyed Linux users rather than M$
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.
Re:impact on upgrades? (Score:2)
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.
'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?
Re:I wonder what this means for preinstalled softw (Score:2, Offtopic)
Really? You gave away 500 licenses of Office 98, which only came out on the Macintosh, and 500 lcienses of MS Windows? That seems very unusual. Don't you mean Office 97 or 2000, which were PC versions? I find it odd you have touble remembering the name of the software you gave away when it caused you so much trouble with the IRS.
Re:I wonder what this means for preinstalled softw (Score:2)
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:2, Funny)
Since the EULA is neither presented nor signed at the time of purchase, it doesn't have bearing on the transaction.
Just in time for the holidays...
"Yes, Virginia. There is a federal judge who's managed to avoid rectally contricting his cranial blood flow."
Re:Who owns what? (Score:2)
This is not truly relevant, and there are legal counter-examples already. For example, you buy a plane ticket. Now, that ticket comes with a whole bunch of restrictions written on the back that you could not access in detail at the point of purchase. Yet you are bound by them nonetheless.
Case law on EULAs is still a little muddled, but at least one synopsis page is up at Dan Bernstein's site [cr.yp.to]
Plane Restrictions are Different (Score:2)
Nothing about not being able to disparage the airlines, or figure out how the airplane works, or similar things to what people are stuck with on software EULAs.
Re:Plane Restrictions are Different (Score:2)
That's funny. But seriously, this would be an intrusion on private property, like if you broke into Microsoft's offices and stole the source code. A better analogy would be the ability to download specs on a Boeing 757 from the Internet.
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.
Article wrong? (Score:2, Funny)
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)
Re:No UCITA; meaningless (Score:2)
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.
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...
Re:Could backfire on consumer (Score:2)
Re:Could backfire on consumer (Score:2)
Re:Could backfire on consumer (Score:2)
Irony? (Score:2, Insightful)
This ruling seems to phrased as to only apply to "purchased" software. Any word/opinions on how it effects either downloaded, or OS s/w?
Also any ideas how we can get a change a venue for Skylarov's case to this judge's court?
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.
Re:Ruling contradicts the DMCa (yay!) (Score:2)
sPh
Re:Ruling contradicts the DMCa (yay!) (Score:2)
Not at all. I am perfectly free to analyse a tablet of Viagra, and even to publish the results of those analyses. However, I am not free to produce my own Viagra tablets until the patent runs out.
There's also a good chance that there are process patents that are newer than the original Viagra patent, which prevent me from using the same methods that Pfizer uses to manufacture Viagra for a few years past the expiration of the Viagra patent. Since the patent discloses the methods used, I have to use some other method.
Re:Ruling contradicts the DMCa (yay!) (Score:2)
However, if this decision is upheld by a Federal court, than there is a chance that it could be used in DMCA cases, and it would also effectively over-rule portions of UCITA, which is State level legislation.
IANAL, though...
Re:Ruling contradicts the DMCa (yay!) (Score:2)
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
Maybe in libertarian wonderland. According to your reasoning, if you buy your AK-47 legit, you can kill your neighbors legit. The DMCA says certain actions are illegal. Hence, you cannot do them, regardless of any issue of ownership.
What this court case does is allow you ( assuming you live in California) to sell software you bought. This is an issue of ownership because the right to sell is pretty much the core of the concept of ownership.
Re:Ruling contradicts the DMCa (yay!) (Score:2)
The point isn't really that a DVD is software.. its that DVD's are sold under a "EULA" simmilar to softare. The whole DMCA agruement is based around the idea that if you buy a DVD, you don't really "own" the DVD, but just bought a license to view it, and because of that, the publishers can give restrictions on that viewing. If it is ruled that this type of purchase is actually "buying" the item, rather than licensing, then it can also be applied to DVD's.
Re:Ruling contradicts the DMCa (yay!) (Score:2)
Who said anyting about copying?? DeCSS has NOTHING to do with copying, and everything to do with viewing, a DVD. You don't need ot decrypt a DVD to copy it, you only have to to view it. You've fallen for the MPAA marketdriod's doubletalk.
Re:Ruling contradicts the DMCa (yay!) (Score:2)
Hence the quotes... There is no agreement, but all you ar purchasing is a license to view the media, not the media itself.
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)
Re:Nice ruling, but... (Score:2)
Yeah lets just invalidat a decision after 2 weeks sure.....this is of cource based on if the supreem court upholds this
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.
Re:Don't break out the champaigne yet (Score:2)
Only if both parties agree to the contract prior to the transaction taking place. In the case of the shrink-wrap "licenses", the consumer does not see the contract until he/she buys and installs the software. In effect, this "license" is a unilateral contract, and thus not legally binding. UCITA makes it legally binding, but UCITA is on a very shaky legal foundation, and so far only two states passed it. Now, here is what I find interesting:
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.
This means that Microsoft cannot force the XP registration upon its users. I sure hope this case makes it to the Supreme Court.
Re:Don't break out the champaigne yet (Score:2)
Even if they can prove that (which could be difficult, what if I had my neighbor's son install it?), there are still two other problems. First, at the point you're presented with the click-wrap EULA, you've *already* bought it. The copy is now yours, and you can lie to it if you want. Second, even if you accept that a EULA can retroactively turn a sale into a license, every EULA I've seen is entirely one-sided. You get no rights you did not already have under standard copyright law, and have substantial restrictions imposed. Contracts without consideration are not valid.
Of course, IANAL, so take this with whatever quantity of salt you wish.
Re:Don't break out the champaigne yet (Score:2)
All valid concerns, but...
1) They can probably convince a judge that the only way to install it is by agreeing to the EULA. Or that you deliberately bypassed the EULA in order to avoid it (pick your favorite way), which probably won't fly with the judge either.
2) The EULA gives you an out - returning the software for a refund if you do not agree. The fact that that can't be done in practice isn't going to be important to the judge right then. (that's another case)
3) The consideration might be construed by the judge as being able to use the software you "bought". Weirder things have happened.
Please bear in mind IANAL either, and don't like any of the above - just trying to be the devils advocate for a bit.
It's gonna be overturned (Score:2, Interesting)
That said, it doesn't matter anyway, because with the deep pockets on the other side, they'll appeal until the get to a judge that is more "open" to their side.
Just in time for the Holidays! (Score:2)
For Sale - One copy of Windows 98 - complete orginal with box, disk, documentation.
Re:Just in time for the Holidays! (Score:2)
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, but not in this case (Score:2)
Notice all the stuff you buy that says "This item part of a package. Not for resale" or something there-abouts.
Unless you agree to that at the time of the sale, it's completely unenforcible. Just because writing on a package says something doesn't always make it true.
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.
Re:Good decision, but not in this case (Score:2)
As far as I know that only applies to food, since food has all these labelling requirements, if have a package inside (say on snickers bar in a ten pack) then you can avoid having to label each of the inner bars with this warning. As to the software companies bundling items, I think that is only binding between the software manufacturer and the bundler/retailer. If the purchaser is not party to the agreement, then why should they be bound by it. That's what this ruling is saying.
Now it could end up getting very complicated since you would have to be very clear what you are buying if someone is selling "Windows XP" it could be any of 8 differnt versions cepending on whehter it is the home or pro edition, upgrade or full version, or bundled full version sold off by enduser rejecting the EULA. MS has always made it clear that if you rejected the EULA you could return the software for a full refund, but they have never honored that. That puts them on pretty weak ground should they want to join with Adobe in fighting this ruling.
Re:Good decision, but not in this case (Score:2)
Re:Good decision, but not in this case (Score:2)
"This item part of a package. Not for resale" this doesn't apply to consumer resale, only business.
Re:Good decision, but not in this case (Score:2)
"This item part of a package. Not for resale" this doesn't apply to consumer resale, only business.
But this is consumer resale. Softman isn't a person, it is a company. This wasn't Joe Blow seeling off his used parts of Abode Photoshop suite, this was a company that purchased the suites specifically to resell them seperately.
this ruling can be bad for MS (Score:2)
Death to forced ID-ing!!!!
also how far does this go? If I own a piece of software as a product, a tangible object, do I get all rights to that spesific instance that I bought?
Re:this ruling can be bad for MS (Score:2)
Nice, but won't matter (Score:5, Insightful)
Re:Nice, but won't matter (Score:2)
That's good for us, not bad. Subscriptions will piss a segment of the public off, and that segment may have to turn to Open Source if the entire commercial world is doing subscriptions.
It's ironic, however, that one of the almost universally accepted valid Open Source business models is the subscription. The difference, of course, being that you don't lose your right to use the software if you let your subscription lapse. Subscribing to updates is different than subscribing to usage, and we'll probably need to use a different term to make that clear.
Re:Nice, but won't matter (Score:2)
Re:Nice, but won't matter (Score:2)
Not that I think subscriptions for software is a good thing
Re:Nice, but won't matter (Score:2)
The Market. (Score:2)
Many software manufacturers want to eliminate any resale market in order to artificially raise demand for their product. It's like GM saying that you can't resell an old GM car, or a GM engine from your old rusted out Nova. What's to preventent GM from creating such restricive licensing arrangements? The Law, of course.
A free economy should not only be free from governmental restrictions, but also from industry restrictions. Industry is, surprisingly, the most significant regulatory body in the US government.
Further laws need to be passed to prevent needless restrictions by industry trade groups on free trade.
Hmmmm (Score:3, Funny)
Re:Hmmmm (Score:2, Informative)
Score: -1, Offtopic
Yeah, yeah, I know this was just a joke, but it sort of pisses me off whenever I hear this particular cheap shot. Because it seems some people actually believed the FUD spread around a couple years ago by panic-stricken ... well, I'm not sure whom. Someone who felt threatened, I guess. For the record (*sigh*, one more time), the Kansas Board of Education did not
or even
All they did was remove the subject from the list of mandatory topics to be covered in a high school science curriculum. Local school boards were free to re-mandate it if desired. Individual schools, or teachers, could likewise teach what they wanted - so long as they include all the state-mandated topics. (Which did not and do not include any "anti-evolution" topics.)
In other words, they referred the question down to the local level. That's all.
I'm not sure why people felt so threatened as to spread FUD about this. It seems that some people feel vehemently that some great calamity befalls children who are told that evolution by natural selection is anything other than a proven fact ... as opposed to a theory with some major difficulties, accepted on faith by atheists mainly because no other current theory is compatible with strict atheism (where strict atheism != agnosticism).
Mirrors anyone? (Score:2)
Has anyone mirrored it yet?
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
Re:Excellent News (Score:2)
After a brief scan of the judgment, I would have to disagree. The court based its decision on the fact that the EULA is just that, an End User License Agreement: an agreement between the end user and Adobe, not between SoftMan and Adobe. SoftMan is not a party to that agreement, and therefore cannot be bound by its terms (which are the actual instruments imposing the resale restrictions). To say otherwise would mean that third parties are bound by contracts they didn't have a say in negotiating, meaning you could impose any arbitrary obligation on someone simply by including it in a contract you entered into with someone else. Which is completely unfair.
If Adobe included a term in its contract of sale with SoftMan to the effect that SoftMan couldn't unbundle, then it would be a different matter; now it's a question of whether that term is enforceable or is unenforceable as an unreasonable covenant in restraint of trade, along with a few other things.
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?
Re:GPL? (Score:2)
Re:GPL? (Score:2)
but if you make changes to source, I think that cause you are using the source code you have to abide by the licence of the source.
But what if you get someone else to change the source? Or what if you create a patch to the source, someone else applies the patch, makes a binary, burns the CD, and sells it to you?
Re:GPL? (Score:2)
the damn GPL is ecursive upon itself. you have the right to copy and distribute it, but only if you give the source away, but if you don't give the source away you have no rights to distribute. but now this ruling make EULAs sort of irrelivent and give a glimmer of hope that they can be struck down with a mighty blow from the SC.......no EULA=no GPL except you do not buy GPLed software, it is free (in many cases)....I think that the GPL will be a futer court case after EULAs are gone.
however, you can still use the GPL in a contract, sop perhaps the GPL would apply still if you modified it cause you agreed to the terms of the contract to use the source.
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.
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. ;-)
Re:Uh, obviously not. (Score:2)
That would be something copyright law would get you on.
Some companies used to do just that and at very inexpensive prices. RedHat stopped them some years ago.
But you could rename everything in the cd and call it RedNot! RedNot! could be completely 100% compatible with RedHat rpms!
just a thought anyway...
The GPL isn't a EULA. (Score:2)
Re:The GPL isn't a EULA. (Score:2)
Re:The GPL isn't a EULA. (Score:2)
In short, the GPL only gives new rights, while Microsoft's EULAs are primarily concerned with taking them away.
The GPL does not only give new rights, it also attempts to take away your right to first sale. Consider clause 4, "You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License."
Re:The GPL isn't a EULA. (Score:2)
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.
Re:GPL? (Score:2)
The GPL is a license that if you accept grants you the right to copy and distribute the software as long as you follow its terms. This means including the source, changes, and the license. If you disagree with the gpl then normal copyright rules apply.
That is exactly the same as any other EULA. It grants you certain rights as long as your follow its terms. If you disagree with an EULA then normal copyright rules apply.
The GPL is not a eula, eula's take rights away, the gpl grants you rights you don't oridnarily have.
The GPL, like any other EULA, can only take rights away if you accept it. If you accept the GPL, you get the right to do certain things, but your right to first sale is taken away.
Other EULAs may or may not take more away than the GPL, but the GPL does attempt to take away one's right to first sale.
Hooray! (Score:2)
This is one area where I agree with the AIP crowd. Why? Because if we are to carry the analogy of physical property into the IP realm (IMHO, the sanest way to deal with IP sold directly to consumers) we *must* allow resale, including "parting out" the components.
To do otherwise would be like GM saying that you can't put a new engine in your car. I'd say more, but I need to run down to the local warehouse, stock up on OEM Windows, and hit eBay before the warehouse guy realizes. :)
(yes, I know OEM doesn't come with a support contract, I know it's going to be appealed, yada yada yada, lighten up. OK?)
isn't it ironic... (Score:2, Funny)
"The case in question is Adobe vs Softman..."
"The full ruling is available in PDF format here."
Was that intentionally?
Submitted this, but rejected just 4 hours ago. (Score:2, Informative)
It'd be nice to know who rejected one's submissions and why, and yes, I checked my URL's to make sure they worked.
I give up. No point in submitting articles - someone else in the in-group will do it anyway. *shrug*
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.
What happens when Ford adopts software-like EULA (Score:2, Funny)
Widget Motor Cars Model A
This End-User License Agreement for Widget Motor Cars ("EULA") is a legal agreement between you (either an individual or an entity) and Widget Corporation for the Widget Motor Cars product identified above, which includes a motor vehicle, printed materials, and may include other material such as seats, mirrors, and windows depending on which options you chose ("CAR"). By starting your new CAR or otherwise using the CAR, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, do not start or use the CAR.
The CAR is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The CAR is licensed, not sold.
1. GRANT OF LICENSE.
This EULA grants you the following limited, revocable, non- exclusive, nontransferable, royalty-free license rights:
1.1 You may use the CAR in for the sole purposes of (a) driving, towing, and riding. You may not use the CAR to drive to a competitors establishment. You may not drive your car to any fueling station not explicitly approved by Widget. You may not repair or modify CAR without explicit approval from Widget. Any repair techniques or modifications you design for CAR will default to ownership by Widget.
1.2 The design internal architecture of the CAR is Widget's confidential information, and you agree not to disclose or provide any CAR operating or repair instructions to any third party without Widget's express written permission therefor. You may disclose the CAR operating and repair instructions only to your household family members or employees who have a need to know in order to accomplish the purposes identified in Section 1.1. Such use of the CAR shall take place solely at your in your presence, and you will have executed appropriate written agreements with such household members or employees sufficient to enable you to comply with the terms of this EULA. You will maintain a list of all household members or employees who have had access to the CAR related information. This provision shall survive the termination or expiration of this EULA.
1.3 The CAR contains consumer grade parts that are not at the level of performance and compatibility of professional grade products. The CAR may not operate correctly, and may need to be substantially modified by Widget. Widget is not obligated to make this or any later modification of the CAR freely available. In the event you discover a design flaw with CAR you may not publish, or disclose the information to anyone but Widget.
1.4 The CAR is designed to last exactly 3 years at which time you are required to return CAR to the place of lease for a replacement. If you do not replace CAR you are required to return CAR to the place of lease for disposal.
1.5 Widget and its suppliers retain title and all ownership rights to the CAR. All rights not expressly granted herein are reserved to Widget.
1.6 You may
2. COPYRIGHT. All rights, title, and copyrights in and to the CAR (including, but not limited to, any parts, paint, belts, and electronics incorporated into the CAR) and any copies of the CAR are owned by Widget or its suppliers. The CAR is protected by copyright laws and international treaty provisions. Therefore, you must treat the CAR like any other copyrighted material.
3. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
3.1 You may not reverse-engineer, repair, or disassemble CAR, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
3.2 Without prejudice to any other rights, Widget may terminate this EULA if you fail to comply with any of its terms and conditions by notifying you in writing. Upon receipt of such notice, you must promptly return the CAR and any part thereof, and certify in writing to Widget that this has been accomplished.
3.3 You may not sell, resell, rent, lease, lend or otherwise transfer for value, the CAR except as expressly allowed by this EULA.
3.4 Widget is not obligated to provide you with technical support, upgrades, repairs, or related information for the CAR ("Support Services") under this EULA. However, if Widget in its sole discretion provides you with any Support Services for the CAR, such material shall be deemed included as part of the CAR, and in any event governed by this EULA unless other terms of use are provided by Widget with such Support Services. Furthermore, Widget is not obligated to continue to make the CAR commercially available, and in no event shall Widget be obligated to provide you with a newer version of the CAR under this EULA. You may from time to time provide suggestions, comments or other feedback to Widget concerning your experience with or use of the CAR ("Feedback"). Both parties agree that all Feedback is and shall be given entirely voluntarily, and Widget shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise. Feedback, even if designated as confidential by you, shall not, absent a separate written agreement, create any confidentiality obligation for Widget, except that Widget will not utilize Feedback in a form that personally identifies you.
4. DISCLAIMER OF WARRANTIES; EXCLUSION OF DAMAGES: LIABILITY LIMITATIONS
4.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Widget AND ITS SUPPLIERS PROVIDE THE CAR, AND ANY (IF ANY) SUPPORT SERVICES RELATED TO THE CAR ("SUPPORT SERVICES"), "AS IS" AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF LACK OF VIRUSES, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, AND OF LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT, ALL WITH REGARD TO THE CAR, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON- INFRINGEMENT, WITH REGARD TO THE CAR. THE ENTIRE RISK AS TO THE QUALITY OF OR ARISING OUT OF USE OR PERFORMANCE OF THE CAR AND SUPPORT SERVICES, IF ANY, REMAINS WITH YOU.
4.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL Widget OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE CAR, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF Widget OR ANY SUPPLIER, AND EVEN IF Widget HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
4.3 Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of Widget and any of its suppliers under any provision of this EULA and your exclusive remedy for all of the foregoing shall be limited to Five U.S. Dollars ($5.00). The foregoing limitations, exclusions and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
5. MISCELLANEOUS
5.1 All CAR provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the commercial rights and restrictions described elsewhere herein. All CAR provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995 is provided with RESTRICTED RIGHTS as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or FAR, 48 CFR 252.227-7013 (OCT 1988), as applicable.
5.2 THE CAR MAY CONTAIN SUPPORT FOR PROGRAMS WRITTEN IN JAVA. JAVA TECHNOLOGY IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS ONLINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF JAVA TECHNOLOGY COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. Sun Microsystems, Inc. has contractually obligated Widget to make this disclaimer.
5.3 You agree not to export or re-export the CAR, any part thereof, or any process or service that is the direct product of the CAR (the foregoing collectively referred to as the "Restricted Components"), to any country, person, entity or end user subject to U.S. export restrictions. You specifically agree not to export or re-export any of the Restricted Components (a) to any country to which the U.S. has embargoed or restricted the export of goods or services, which may currently include, but are not necessarily limited to, Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria, or to any national of any such country, wherever located, who intends to transmit or transport the Restricted Components back to such country; (b) to any end-user who you know or have reason to know will utilize the Restricted Components in the design, development or production of nuclear, chemical or biological weapons; or (c) to any end-user who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. You warrant and represent that neither the BXA nor any other U.S. federal agency has suspended, revoked or denied your export privileges.
5.4 If you acquired this product in the United States, this EULA shall be construed and controlled by the laws of the State of Washington without regard to conflicts of law. If this product was acquired outside the United States, local law may apply. If you acquired this product in Canada, this EULA is governed by the laws of the Province of Ontario, Canada, and each of the parties hereto irrevocably attorns to the jurisdiction of the courts of the Province of Ontario and further agrees to commence any litigation that may arise hereunder in the courts located in the Judicial District of York, Province of Ontario.
5.5 Should you have any questions concerning this EULA, or if you desire to contact Widget for any reason, please send email to eula@Widget.com or write: Widget Research, One Widget Way, Redmond, WA 98052-6399.
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.
You're missing the point. (Score:2)
Yes, I resent having to buy Windows when I buy a box (hell, I con't even want to have to buy a monitor when I buy a box. I was still using the '98 that came with one until recently. That's irrelevant now, but if I got an XP that I don't want I'd give it or sell it in a heartbeat. Let the cops come get me. If the thought police keep it illegal then I'd keep it off of e-bay, but that's about as low as I'd keep my profile.
What we're losing sight of is that these big companies are fast becoming irrelevant. Their business model is morally bankrupt. They can only make money by forcing people to buy things that they don't want, and have to get the law to keep people from selling off the crap they didn't want to buy in the first place. This is going to be a great boost for open source. Hell, there's even a slim chance that closed source customers (hostages) might actually be helped by this. The way our judicial system has been going, very slim.
Re:You're missing the point. (Score:2)
Read the posts you reply to. Reach down, and if you find any balls, log in.
Re:About time! (Score:2, Interesting)
Re:Doesn't Apply to Windows (Score:2)
Re:Whoohoo MS OSes for sale! (Score:2)