Linked by Thom Holwerda on Thu 1st Oct 2009 19:04 UTC
Legal Yesterday morning, we ran an item on the Autodesk case, but we (as in: me) got all confused about what exactly was going on. As it turns out, I was right from the start; despite my update to the item, the case was not resolved. The link in the update referred to an earlier stage of the legal ramblings. However, we now have a real conclusion in this case - and once again, Autodesk lost: software is sold, not licensed. Note: Thanks to Brian W. Carver from Cyberlaw Cases for clearing everything up via email. Much appreciated!
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Something is going around
by Vanders on Thu 1st Oct 2009 19:37 UTC
Vanders
Member since:
2005-07-06

software is sold, not licensed.


Sudden outbreak of Common Sense. Film at 11.

Reply Score: 7

RE: Something is going around
by DrillSgt on Thu 1st Oct 2009 19:47 UTC in reply to "Something is going around"
DrillSgt Member since:
2005-12-02

"software is sold, not licensed.


Sudden outbreak of Common Sense. Film at 11.
"

Well, there is more to it than that. The copy of the software is sold, the use of the software is governed by license, which was stated in the courts findings. It is really important here to distinguish between the 2, as they are 2 separate animals. Basically this case upheld copyright law as it exists to begin with. Either way it is good to have a legal precedent for other Judges to use ;)

Reply Score: 2

RE[2]: Something is going around
by kenji on Fri 2nd Oct 2009 19:53 UTC in reply to "RE: Something is going around"
kenji Member since:
2009-04-08

Well, there is more to it than that. The copy of the software is sold, the use of the software is governed by license, which was stated in the courts findings. It is really important here to distinguish between the 2, as they are 2 separate animals. Basically this case upheld copyright law as it exists to begin with. Either way it is good to have a legal precedent for other Judges to use ;)

So true, while the physical media is sold, usage must adhere to the license.

Reply Score: 1

RE: Something is going around
by Fennec_Fox on Thu 1st Oct 2009 19:49 UTC in reply to "Something is going around"
Fennec_Fox Member since:
2006-10-30

"software is sold, not licensed.


Sudden outbreak of Common Sense. Film at 11.
"

Sadly, sudden outbreaks of Common Sense are easily confined and cured by massive injections of Corporate Interests.

Edited 2009-10-01 19:55 UTC

Reply Score: 4

broken_symlink Member since:
2005-07-06

thats why its not called common sense anymore, but rather uncommon sense because its so rare.

Reply Score: 2

RE[2]: Something is going around
by Phloptical on Thu 1st Oct 2009 23:58 UTC in reply to "RE: Something is going around"
Phloptical Member since:
2006-10-10

Nicely put!!!

Reply Score: 2

Purchaser owns copies
by jasutton on Thu 1st Oct 2009 19:52 UTC
jasutton
Member since:
2006-03-28

I posted this fact in a thread about modification of Apple software by the end-user, but now, the judgement made in this case has only strengthened the argument. The judge seems to specifically name the consumer as the "owners of copyrighted material" which would correspond to the "owner of a copy of a computer program" from Title 17 section 117 of the US Code (see below).

"it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine"

Link: http://www4.law.cornell.edu/uscode/17/usc_sec_17_00000117----000-.h...

Reply Score: 1

Implications
by alcibiades on Fri 2nd Oct 2009 08:13 UTC
alcibiades
Member since:
2005-10-12

The Vernor case has some striking implications, because it was based on upgrades. If I have it correctly, what happened was that people were buying upgrades, not new copies. Then they were reselling the originals. So I buy Autodesk 1.x, then buy an upgrade to 2.x, then sell the 1.x copy on, to someone who installs it.

That is rather fundamental and (have I got it right?) different. It would say that if you buy an upgrade package, Snow Leopard, for instance, you can then sell the base Leopard disks to someone else who can then do a legal install of Leopard. Office similarly. Windows similarly. Photoshop similarly. It is basically saying the rules on upgrades are very different from what we have been used to thinking.

The justification for this is that the upgrade and the original are sold, not licensed, and so can be resold, and that S117 applies and permits lawful owners of copies to install and use.

The implications for Apple are, as I have often argued, that copyright is not going to get them what they want. There isn't any doubt that when you buy a retail copy of software, as far as copyright law goes you have the right to install it on whatever you want.

The only thing that may stop you is the EULA clause. Now that is going to be a whole lot harder to manage. This is going to be a contract entered into with no consideration, whose terms were not presented at the time of the sale, which is a contract of adhesion, and where there is disparity in negotiating power between seller and (consumer) buyer. In the EC, this is going to be a dead duck. Probably in the US also.

Like Thom, I am really puzzled by the Mac Fanatics. They react as if Apple was going to be unable to bundle if Psystar wins. But that isn't the issue, if Psystar wins, then you will still be able to buy the whole works and its famous integration from Apple, you will just not be obliged to if you don't want to. What is so threatening about that? Anyone would think Apple is going to be prohibited from selling preinstalled systems. Why do the Mac people get so excited about other people having hardware choices which they want, but which they (the Mac people) do not? Most mysterious.

Reply Score: 5

bizarre thing...
by bsdero on Fri 2nd Oct 2009 12:39 UTC
bsdero
Member since:
2005-08-29

anyway, who did invent that "license" for product selling??

Imagine me trying to get a license from VW, just to drive my car... "You can not sell cars, because we are selling u the license, not the car!!!". That mean if I need to drive the car of my gf I must have a license to drive her car too??

Reply Score: 2

RE: bizarre thing...
by achmafooma on Sat 3rd Oct 2009 01:31 UTC in reply to "bizarre thing..."
achmafooma Member since:
2008-09-05

I don't know who invented it, but it goes back before software. My parents have an antique Edison Co. phonograph machine and, I kid you not, it has a little patent notice plastered on the side of it.

It says something to the effect of, "By purchasing or otherwise obtaining this machine you acknowledge the validity and enforceability of all patents of the Edison Company."

I was blown away...a hundred year old piece of hardware with an EULA.

Reply Score: 1

Smart Judge
by dzenizo on Fri 2nd Oct 2009 23:27 UTC
dzenizo
Member since:
2009-10-02

There's still hope! The arguments presented by the judge are plain common sense, It's refreshing to see a member of tje judiciary system applying the right interpretation of the law, not siding with the big bucks, but with the just.

Reply Score: 1

Comment by graigsmith
by graigsmith on Mon 5th Oct 2009 12:21 UTC
graigsmith
Member since:
2006-04-05

if software is sold and not licensed, then how can apple enforce it's eula and force people who buy it not to install it on compatible non apple computers?

Reply Score: 1