Linked by Thom Holwerda on Fri 10th Sep 2010 23:38 UTC
Legal EULAs, and whatever nonsense they may contain, are legally binding in the US. Have a great weekend!
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US Justice System
by rmeyers on Fri 10th Sep 2010 23:56 UTC
rmeyers
Member since:
2009-12-16

Strange as it may seem to those who do not live in the United States (and of course to most of us who do), the US court system has nothing to do with fairness. Seriously, I'm not just ranting here. The US court system dispenses justice, a very different concept from fairness. Justice is the application of the law. If we are lucky, the laws are fair, oftimes they are not.

If one wishes to prove this to themselves, all that is required is to be a litigant in a US court and try to argue that something is not fair. The best that you can hope for is a blank stare from the court, at worst a stern lecture from the bench, and of course losing your case.

Don't actually know if I have a point here, just thought that it would be of interest to those who were not aware of how the US legal sytem works.

Reply Score: 6

RE: US Justice System
by B. Janssen on Sat 11th Sep 2010 10:44 UTC in reply to "US Justice System"
B. Janssen Member since:
2006-10-11

That's an analytic truth, all justice systems dispense judgement based on the laws they have available. Systems that base judgement on whim, arbitrariness and individual ideas of fairness are not justice systems.

The question here is, how do justice systems deal with the sense of justice of their subjects? Normally this is considered to be a strength of justice systems based on case law -- the very short turn-around times of rulings -- but here it seems to fail. However, the case is not over yet, as pointed out in the update.

Reply Score: 2

RE: US Justice System
by imaginant on Sat 11th Sep 2010 14:08 UTC in reply to "US Justice System"
imaginant Member since:
2010-02-26

I think it has to do with precedent; US law follows what was previously decided in similar cases. IMNAL, but I would speculate that this concept originates from the various arguments regarding how to interpret the US constitution. For example, does one expand the meaning of the constitution by creating new law, or does one simply follow the succession of law that has unfolded in the time frame since the constitution? The latter seems to prevail today.

This means that in America, you can do what ever you want as long as there is not a law prohibiting it. In other words, reason has nothing to do with it. If there is not law against it, you can do it. One egregious example is that you can make an ad of complete lies, and say, in the hidden, fine print that it is all lies, and you will have not broken the law. Just read the ads for losing weight. Now, what kind of person would do this? Well, one which wants to exploit others. This includes a number of people and businesses and virtually all politicians (well, most, anyway). But not most Americans.

Here is my point. Most Americans are very good people, but the government and politicians (and some businesses) are morally corrupt abetted by a legal system that has a basis in precedent rather than morality (or reason and sense if you object to the word morality). This must be very hard for non-Americans to understand; probably, most Americans have trouble with understanding this. But, awareness in growing.

Reply Score: 2

RE[2]: US Justice System
by M.Onty on Sat 11th Sep 2010 14:35 UTC in reply to "RE: US Justice System"
M.Onty Member since:
2009-10-23

I think it has to do with precedent; US law follows what was previously decided in similar cases. IMNAL, but I would speculate that this concept originates from the various arguments regarding how to interpret the US constitution.


Similarly, I'm no lawyer, nor historian, but I'm fairly sure the US legal system is like this because it mimics the English Common Law system. That comes from a Mediaeval king (Henry II?) insisting that county courts consider the past rulings made within other county courts in order to reduce what would now be called a "postcode lottery" approach to justice.

Reply Score: 2

RE[3]: US Justice System
by Thom_Holwerda on Sat 11th Sep 2010 14:48 UTC in reply to "RE[2]: US Justice System"
Thom_Holwerda Member since:
2005-06-29

"I think it has to do with precedent; US law follows what was previously decided in similar cases. IMNAL, but I would speculate that this concept originates from the various arguments regarding how to interpret the US constitution.


Similarly, I'm no lawyer, nor historian, but I'm fairly sure the US legal system is like this because it mimics the English Common Law system. That comes from a Mediaeval king (Henry II?) insisting that county courts consider the past rulings made within other county courts in order to reduce what would now be called a "postcode lottery" approach to justice.
"

I understand allt his - this was not the point I'm trying to make.

The point I'm trying to make is that within a system where the courts have a relatively strong say in how the law should be applied (as is the case in the US), wouldn't it make more sense to use that say to make sure the law is applied in a modern way? Consider past rulings - yes - but amend and update them where it makes sense?

I think that would be EXACTLY the point of having such a system in the first place.

Reply Score: 1

RE[4]: US Justice System
by M.Onty on Sat 11th Sep 2010 15:00 UTC in reply to "RE[3]: US Justice System"
M.Onty Member since:
2009-10-23


I understand allt his - this was not the point I'm trying to make.


I know, I was just drifting off topic slightly.


I think that would be EXACTLY the point of having such a system in the first place.


That is certainly the theoretical strength of the Common Law approach. Whether it works or not ...

Am I right in saying that no European systems work like this? They use Civil Law, or somesuch.

Reply Score: 1

RE[5]: US Justice System
by dylansmrjones on Sun 12th Sep 2010 09:29 UTC in reply to "RE[4]: US Justice System"
dylansmrjones Member since:
2005-10-02

Am I right in saying that no European systems work like this? They use Civil Law, or some such.


Well, most of the european countries use Civil Law. UK and Ireland relies on Common Law and the scandinavian countries are somewhere in between, using a wonderfully disintegrated blend of semi-codified customs and attempts at cleaning up the mess and add some romano-germanic structure. It's been going on for approx. 8 centuries and it gets messier every year. Unlike other Civil Law countries the scandinavian countries don't have an integrated Civil Code.

EDIT: Hmm.. Wikipedia is calling the scandinavian system for "intermediate". That's a very kind way of putting it :p

Edited 2010-09-12 09:30 UTC

Reply Score: 2

RE[6]: US Justice System
by M.Onty on Sun 12th Sep 2010 20:57 UTC in reply to "RE[5]: US Justice System"
M.Onty Member since:
2009-10-23

That's curious. And directed me to the Wiki page concerned. Apparently Mongolia has a justice system based entirely on custom. Sounds interesting as, presumably, the common people can change the law simply by ignoring it for long enough. What an ideal way of ensuring ridiculous laws (like, for example, one banning the resale of software) get struck off the books!

Reply Score: 1

RE: US Justice System
by Delgarde on Sun 12th Sep 2010 22:57 UTC in reply to "US Justice System"
Delgarde Member since:
2008-08-19

Don't actually know if I have a point here, just thought that it would be of interest to those who were not aware of how the US legal sytem works.


That's not really anything specific to the US system - in pretty much all countries, it's a key element that rulings must be *consistent*. It might not seem fair in individual cases, but nor is it fair if two identical cases have different outcomes due to the whim of a judge.

Reply Score: 2

Land of the free to be dictated to
by n.l.o on Sat 11th Sep 2010 00:11 UTC
n.l.o
Member since:
2009-09-14

I wake up every day and thank God I don't live in that country!

Reply Score: 5

_xmv Member since:
2008-12-09

i'm pretty sure things are as bad in different ways in pretty much every single country..

Reply Score: 6

djf1 Member since:
2006-12-14

Well, I can't speak for other Americans, but I can assure you that I am very glad you don't live here either.

Reply Score: 1

Vinegar Joe Member since:
2006-08-16

I also thank god you don't.

Reply Score: 1

I will have a good weekend.
by NathanHill on Sat 11th Sep 2010 00:12 UTC
NathanHill
Member since:
2006-10-06

Thanks!

Reply Score: 1

Legal matters
by chandler on Sat 11th Sep 2010 00:19 UTC
chandler
Member since:
2006-08-29

In any case, only Congress can do anything about this now.

Absolutely wrong. This was a ruling by a panel of the 9th circuit. It can be overturned in an en banc hearing or by the Supreme Court - and an en banc hearing is plausible if it contradicts previous rulings of the 9th circuit.

Reply Score: 5

RE: Legal matters
by Thom_Holwerda on Sat 11th Sep 2010 00:22 UTC in reply to "Legal matters"
Thom_Holwerda Member since:
2005-06-29

Absolutely wrong. This was a ruling by a panel of the 9th circuit. It can be overturned in an en banc hearing or by the Supreme Court - and an en banc hearing is plausible if it contradicts previous rulings of the 9th circuit.


Well, I based that on the wording of the ruling itself and the article over at Ars about this, which said the same. I also figured "what about the Supreme Court?", so guess my wonder was a good one.

Fixing.

Reply Score: 2

RE: Legal matters
by rhavyn on Sat 11th Sep 2010 02:10 UTC in reply to "Legal matters"
rhavyn Member since:
2005-07-06

Realistically, however, there is no chance this will be reversed by the 9th Circuit or the Supreme Court. Although many here will dislike the ruling, it's actually a very will written opinion.

The 9th Circuit won't reverse this decision en banc because it clears up two previously contradictory rulings and now provides a fairly simple three prong test as to whether software is sold or licensed. So, from the 9th Circuit's point of view, this will have been wrapped up quite nicely.

The Supreme Court won't over rule for two major reasons. The simpler is that it's been stacked with pro-business justices for most of the past 20 years. Second, the 9th Circuit opinion is very well written. It specifically references the legislative history of Section 117 and how Congress changed the wording from “rightful possessor” to "owner." Since Congress's intent seems clear based on this opinion, and copyright is squarely within Congress's domain, the Supreme Court will rightfully defer to the legislature. Go look at how far Lawrence Lessig got in front of the Supreme Court, and that was arguably a less business friendly Court then we have today.

Reply Score: 3

The judge is an idiot
by JLF65 on Sat 11th Sep 2010 00:21 UTC
JLF65
Member since:
2005-07-06

Because Vernor did not purchase the Release 14 copies from an owner, he may not invoke the first sale doctrine, and he also may not assert an essential step defense on behalf of his customers.


Right here, the judge pretty much confirmed his lack of intelligence. You can see what he's saying: the architectural firm bought the software, so THEY had first sale protection, but Vernor didn't. However, what IS the First Sale Doctrine in the first place?

This means that the copyright holder's rights to control the change of ownership of a particular copy ends once that copy is sold, as long as no additional copies are made. This doctrine is also referred to as the "right of first sale," "first sale rule," or "exhaustion rule."


Okay, so if the rights END at the FIRST SALE, how can they then skip around to the SECOND SALE and start back up again? The judge CLEARLY just lost his mind... or was paid off.

Reply Score: 7

RE: The judge is an idiot
by EricCFlem72 on Sat 11th Sep 2010 00:51 UTC in reply to "The judge is an idiot"
EricCFlem72 Member since:
2008-04-14

I would guess the argument would be that the copy was never actually sold; it was licensed. In fact, the judge seemed to jump through quite a few weird hoops to "prove" that. And since it was licensed, not sold, there is no right of first sale (because something that's licensed isn't sold), and if there's no right of first sale, then what's in the EULA doesn't contradict it. I don't agree, but I'd guess that's the argument.

Also, as someone else pointed out, this is the 9th Circuit... they get overturned a lot. Although so does every other Circuit Court (the Supreme Court doesn't tend to take on too many cases it feels were judged correctly, so more than 3/4 of all cases the Supreme Court takes on end up overturning Circuit Court decisions), but the 9th Circuit decisions just seem to be a bit crazy at times.

Reply Score: 2

RE: The judge is an idiot
by butters on Sun 12th Sep 2010 10:40 UTC in reply to "The judge is an idiot"
butters Member since:
2005-07-08

Well, AutoDesk clearly sold something. In the court's view, apparently, they sold a license rather than a copyrighted work.

In other words, it seems that the court is inventing a new kind of intellectual property right that expands and largely obsoletes copyright.

In this new interpretation, the use of software is governed by a license of more or less unlimited authority, where "use" is defined to include redistribution as previously governed by copyright.

EULA is the new copyright, this license is what you are buying when you procure software, and purchasing the license implies consent.

The license can be any otherwise legal contract, and the U.S. Congress is extremely disinclined to intervene in the terms of private contracts.

This is a creative end-run around the legal framework and judicial precedents of copyright. Copyright is irrelevant, because now we're exchanging licenses rather than works.

Reply Score: 4

RE[2]: The judge is an idiot
by Neolander on Sun 12th Sep 2010 14:18 UTC in reply to "RE: The judge is an idiot"
Neolander Member since:
2010-03-08

Well, AutoDesk clearly sold something. In the court's view, apparently, they sold a license rather than a copyrighted work.

In other words, it seems that the court is inventing a new kind of intellectual property right that expands and largely obsoletes copyright.

In this new interpretation, the use of software is governed by a license of more or less unlimited authority, where "use" is defined to include redistribution as previously governed by copyright.

EULA is the new copyright, this license is what you are buying when you procure software, and purchasing the license implies consent.

The license can be any otherwise legal contract, and the U.S. Congress is extremely disinclined to intervene in the terms of private contracts.

This is a creative end-run around the legal framework and judicial precedents of copyright. Copyright is irrelevant, because now we're exchanging licenses rather than works.

Then we should sign the license agreement when we buy the software, and not anywhere after, like any other service agreement, as Thom pointed out.

Edited 2010-09-12 14:18 UTC

Reply Score: 2

RE[3]: The judge is an idiot
by TheGZeus on Sun 12th Sep 2010 14:37 UTC in reply to "RE[2]: The judge is an idiot"
TheGZeus Member since:
2010-05-19

I can get behind that.

Reply Score: 1

RE[2]: The judge is an idiot
by TheGZeus on Sun 12th Sep 2010 14:37 UTC in reply to "RE: The judge is an idiot"
TheGZeus Member since:
2010-05-19
There's a reason
by gus3 on Sat 11th Sep 2010 00:44 UTC
gus3
Member since:
2010-09-02

they call it "the Ninth Circus".

Reply Score: 7

Grrr, I just don't get it.
by runjorel on Sat 11th Sep 2010 00:50 UTC
runjorel
Member since:
2009-02-09

I love my country but my gosh I freakin' hate this. I just don't see how anyone can justify and define licensing to this degree. I have a hard time understanding how goods of which I do not pay a monthly fee and/or do not sign\agree with any kind of time-conscience contract is still owned by the manufacturer of the good. How is me paying a one time fee for a good the same as me essentially renting the product from the manufacturer. If I pay a one time fee for something, then it should be mine just like any other sale. And if I purchase a product from someone else who paid a one time fee for something, then that sale should be legit and have no connection with the manufacturer, developer, etc.

I feel if AutoDesk wants to play this game then their software needs to be moved to a subscription based model.

All this plus the fact that if you buy software, open it, attempt to install it only to come to the conclusion that you don't agree with the EULA is hard as heck to return, if possible at all, really sucks.

"EULAs, and whatever nonsense they may contain, are legally binding in the US. Have a great weekend!"

Thanks, Thom, for that. I haven't laughed like that on osnews for a while!!!

Reply Score: 5

RE: Grrr, I just don't get it.
by Almafeta on Sat 11th Sep 2010 02:53 UTC in reply to "Grrr, I just don't get it."
Almafeta Member since:
2007-02-22

Replying to your article, Thom: EULAs are as binding as every other legal agreement one enters into. If publishers were forbidden from creating EULAs, nobody could create a legal agreement; if you were not allowed to agree to a EULA, you would not be allowed to agree to any sort of legal agreement.

Also, something in your article: Here in The Netherlands we have a traffic rule which states that in case of an accident between a motorised vehicle and a non-motorised participant... [the driver is always at fault]. In the US, although it varies from state to state, a driver is not at fault if someone steps into a road and is struck. Motorists are not responsible for people who willingly and knowingly step into oncoming traffic; there is no presumption that the most 'powerful' party is automatically guilty.

Responding to Runjorel:

All this plus the fact that if you buy software, open it, attempt to install it only to come to the conclusion that you don't agree with the EULA is hard as heck to return, if possible at all, really sucks.

That's why you contact the manufacturer. They can't legally accept money for the licensure of software if no such licensure took place.

Edited 2010-09-11 02:54 UTC

Reply Score: 2

RE[2]: Grrr, I just don't get it.
by WereCatf on Sat 11th Sep 2010 03:39 UTC in reply to "RE: Grrr, I just don't get it."
WereCatf Member since:
2006-02-15

Replying to your article, Thom: EULAs are as binding as every other legal agreement one enters into.

EULAs and contracts are two completely different kinds of beasts.

A contract is a legal agreement agreed by all related parties and a contract is placed _before_ any sale or transferral of goods. A contract also defines what service(s) the other party/parties provide, at what cost and with what kinds of limitations.

An EULA is an agreement that takes place _after_ sale or tranfessar of goods and there is no one to agree or disagree with, nor anyone overseeing the process. EULAs almost always try to limit the rights given to the buyer by other laws and tries to impose limits on you, not the service.

The after-sale limitations on rights given by existing laws is already enough for EULAs to be invalid in most European countries, but if it's a not service but instead bought goods, like f.ex. a software package sold at any computing-related store, there is even less for EULAs to stand on; it simply isn't allowed for manufacturer to place limitations on a copy of software they don't anymore own. If manufacturer wants something to be defined as a service then it needs to advertise it as such and create a proper contract when signing someone up, buying something from a store with no kind of agreement whatsoever doesn't constitute a contract.

I am quite sad and very much irritated by the US legal system, it seems you can do more-or-less anything whatsoever if you just have deep enough pockets, and the rights of regular consumers are constantly being trampled. I hope they will some day in the future wisen up and revise the whole system, from top to bottom. Until then I will not land my foot on American soil, even if I was paid for it ;)

Reply Score: 9

Almafeta Member since:
2007-02-22

An EULA is an agreement that takes place _after_ sale or tranfessar of goods and there is no one to agree or disagree with, nor anyone overseeing the process.

EULAs appear before installation (the actual transfer). That's why you have to offer refunds to those to disagree with EULAs.

it simply isn't allowed for manufacturer to place limitations on a copy of software they don't anymore own.

Ownership of a piece of software is no more transferred than ownership of a song or a story is transferred when you buy a CD or a book. (It's the only reason copyleft licenses have any power to restrict free usage, f'rex.)

the rights of regular consumers are constantly being trampled.

What rights have been lost? As far as I know, selling things you don't legally own is a crime, not a right.

Also, you speak in terms of 'the rich' versus 'the consumers', as if the only people who have copyrighted content are those who work for large corporations. That's a false distinctions, because virtually everyone can produce something of value. Taking away the ability of Joe Q. Programmer to use an EULA to protect himself would be an injustice, and really would make it so only rich corporations could afford to protect themselves.

I hope they will some day in the future wisen up and revise the whole system, from top to bottom.

Don't worry; people who create things over there will get their rights back soon enough. ;)

Edited 2010-09-11 05:38 UTC

Reply Score: 2

WereCatf Member since:
2006-02-15

EULAs appear before installation (the actual transfer). That's why you have to offer refunds to those to disagree with EULAs.

Transferal of goods or valuables, ie. money, happens already at the store.

Ownership of a piece of software is no more transferred than ownership of a song or a story is transferred when you buy a CD or a book.

You are mixing up concepts of ownership and copyright. They are not the same thing and should not be mixed; you own the copy of the book if you buy it and may do with it as you please, but the original author still holds copyrights to it and thus you are not allowed to break copyright law. Do NOT confuse these things.

What rights have been lost? As far as I know, selling things you don't legally own is a crime, not a right.

See previous answer.

Reply Score: 6

Soulbender Member since:
2005-08-18

That's why you have to offer refunds to those to disagree with EULAs.


I'm really interesting to know if this actually works.

Taking away the ability of Joe Q. Programmer to use an EULA to protect himself would be an injusticep


What injustice would that be that isn't already covered by existing regulations?

Ownership of a piece of software is no more transferred than ownership of a song or a story is transferred when you buy a CD or a boo


If I buy a CD I can later sell it if I don't want it anymore. I can sell my old car when I want to buy a new one. What the ninth circle has essentially said here is that I can not sell software that I am no longer using.
What "injustice" is this supposed to protect against?

Reply Score: 4

dylansmrjones Member since:
2005-10-02

What "injustice" is this supposed to protect against?


Obviously the injustice is that the copyright holder isn't paid when the sold physical software container is resold by the new owner of said physical software container... and again and again and again. It is obvious that american megacorporations are treated unjustly when they can't force you to surrender your property and your rights to them.

Or something...

Reply Score: 5

TheGZeus Member since:
2010-05-19

Indeed.
If someone re-mixed music I made, sold it, and tried to restrict further re-use of that derivative work, I'd be furious!
I would then call my lawyer, and invoke the justice system to bring them in line, and probably re-allocate their filthy lucre to X or some other software project.

I wouldn't have a problem with selling it, that's a right granted by the license I chose. It's the re-use that's also granted to 3rd parties.

Same with software I'm involved with. See the recent BusyBox case(s).

Ideas are licensed.
Copyleft only works because of how (arguably over-)strong copyright became after 1976.

Similar ideas apply to patents, but the patent system is borked atm.

Reply Score: 1

So...
by historyb on Sat 11th Sep 2010 00:50 UTC
historyb
Member since:
2005-07-06

Argh, a pirate I be. yo ho ho and a bottle of software rum !

Edited 2010-09-11 00:52 UTC

Reply Score: 7

AWESOME!!
by looncraz on Sat 11th Sep 2010 01:35 UTC
looncraz
Member since:
2005-07-24

This is FANTASTIC!!

You know why??

Well, back in my day of mass software distributions I made a looncraz Software License which was meant to be rather funny to read. Well, now it holds water!

This means I am owed oral sex by more than 100,000 people!! WAHOO!!!

Too bad I never really publicly released the actual license... just kept it stored on my computer, and made notes in my software that it was beholden to the license... meh, I bet it still applies...

--The loon

Reply Score: 7

RE: AWESOME!!
by WorknMan on Sat 11th Sep 2010 06:09 UTC in reply to "AWESOME!!"
WorknMan Member since:
2005-11-13

Well, back in my day of mass software distributions I made a looncraz Software License which was meant to be rather funny to read. Well, now it holds water!

This means I am owed oral sex by more than 100,000 people!! WAHOO!!!


Ha, this makes me think... if I sold/released a piece of software with an EULA that says you can only use it every other Thursday, and only in a squatting position while farting the tune from The Brady Bunch, is that legally binding?

Reply Score: 2

RE[2]: AWESOME!!
by mtzmtulivu on Sat 11th Sep 2010 06:43 UTC in reply to "RE: AWESOME!!"
mtzmtulivu Member since:
2006-11-14


Ha, this makes me think... if I sold/released a piece of software with an EULA that says you can only use it every other Thursday, and only in a squatting position while farting the tune from The Brady Bunch, is that legally binding?


It looks like that will be legally binding but how are you going to discover infringers of your license without invading their privacy by monitoring them using your software?

Having such language in EULAS and then attempt to enforce it will lead to actions like sony's secretly installing rootkits on people's computers to enforce a license by preventing customers of their cds from copying the cd to the hard drive. We all know the amount of flack sony got because of it.

Reply Score: 3

RE[2]: AWESOME!!
by Soulbender on Sat 11th Sep 2010 09:31 UTC in reply to "RE: AWESOME!!"
Soulbender Member since:
2005-08-18

No.

Reply Score: 2

RE[2]: AWESOME!!
by alcibiades on Mon 13th Sep 2010 08:40 UTC in reply to "RE: AWESOME!!"
alcibiades Member since:
2005-10-12

Not all contractual terms are lawful. In the UK, no matter what sales contract you sign, you cannot relinquish your rights under consumer protection laws. You cannot sell yourself into slavery in the US. And so on.

Reply Score: 3

RE[3]: AWESOME!!
by TheGZeus on Mon 13th Sep 2010 13:20 UTC in reply to "RE[2]: AWESOME!!"
TheGZeus Member since:
2010-05-19

Exactly.
Telling me to destroy the item or preventing resale after un-installation is unreasonable.

Unfortunate, stupid US court system.

Reply Score: 1

RE: AWESOME!!
by dylansmrjones on Sat 11th Sep 2010 18:58 UTC in reply to "AWESOME!!"
dylansmrjones Member since:
2005-10-02

Let us know if it works ;)

Reply Score: 2

the problem is ignorance
by mtzmtulivu on Sat 11th Sep 2010 01:43 UTC
mtzmtulivu
Member since:
2006-11-14

osnews and other tech media outlets should start to educate the masses the difference btw "buying" and "licensing".

We have been buying and renting things for centuries and we know the difference btw the two very well. "licensing" in consumer space is a fairly new concept and most people dont know what it means and most people use "buying" instead of licensing and they make simple assumptions that dont hold up and end up complaining when they get burned.

what is required is education. Educate the buying public and they will start making informed buying/renting/licensing decisions and the problem will go away.

Reply Score: 2

RE: the problem is ignorance
by unoengborg on Sat 11th Sep 2010 10:42 UTC in reply to "the problem is ignorance"
unoengborg Member since:
2005-07-06


what is required is education. Educate the buying public and they will start making informed buying/renting/licensing decisions and the problem will go away.



The problem is, that I doubt that most software companies actually want their customers to make informed decisions. If people actually understood the licensing concept they would not pay more than e.g. $2 for widely sold software packages like Microsoft Office.

Reply Score: 5

It isn't that difficult
by westlake on Sat 11th Sep 2010 01:59 UTC
westlake
Member since:
2010-01-07

Autodesk has a contract - a licensing agreement with an engineering firm.

Not John Doe breaking open the shrink wrap.

R15 to be made available a steeply discounted price - on the condition that all copies of R14 are destroyed.

Sounds fair enough.

Until the copies begin appearing on E-Bay with handwritten activation codes.

Autodesk sues vendor on the grounds that he has no legal right to sell what he is selling.

That there has been no lawful transfer of title or license from A to B to C.

The three judges on the court of appeals agreed.

The victory in the district court was on a motion for summary judgment.

A motion for summary judgment means that you are asking the district judge to declare that, as a matter of law, your opponent's arguments are absolutely worthless.

But matters of law are ultimately for an appellate court to decide.

Reply Score: 2

There is one solution to this
by WereCatf on Sat 11th Sep 2010 03:13 UTC
WereCatf
Member since:
2006-02-15

...move to Finland ;)

PS. While at it, bring me some chocolate.

Reply Score: 5

RE: There is one solution to this
by righard on Sat 11th Sep 2010 06:56 UTC in reply to "There is one solution to this"
righard Member since:
2007-12-26

Yes because the chocolate there tastes like crap ;)

(Love the rest of the country)

Edited 2010-09-11 06:57 UTC

Reply Score: 2

Fiddlesticks...
by Morgan on Sat 11th Sep 2010 03:37 UTC
Morgan
Member since:
2005-06-29

That means the very computer I'm typing this on makes me a criminal. *knock knock* Hey, it's the Apple SLA Police come to take me away!

Oh well, I guess I need to get around to buying a "real" Mac after all.

Reply Score: 2

RE: Fiddlesticks...
by ricegf on Sat 11th Sep 2010 10:04 UTC in reply to "Fiddlesticks..."
ricegf Member since:
2007-04-25

Not me.

Y'know, just a few days ago I casually mentioned that I'm a fan of free-as-in-freedom software, and was verbally pummeled for being some kind of nutjob.

But I didn't just wake up one day and decide that I thought rms had a point. I actually received 2 letters (via snail mail) at my house from the Business Software Alliance, stating that if I had purchased - oh, I mean licensed - any software from their member companies (e.g., Microsoft or Autodesk), I had agreed to their "right" to enter my home and search my computers for any copyright violations.

I started reading their EULAs and found that they gave themselves all kinds of ludicrous "rights", including in many cases the "right" to add more "rights" to their arsenal later on by merely editing a page on a website.

I suppose I'm a nutjob for thinking that was a bad plan, and seeking a respectful license instead.

A final thought: How different in attitude are the above EULAs from "either version 3 of the License, or (at your option) any later version" recommended for use with the GPL?

Reply Score: 7

RE[2]: Fiddlesticks...
by lemur2 on Sat 11th Sep 2010 11:23 UTC in reply to "RE: Fiddlesticks..."
lemur2 Member since:
2007-02-17

But I didn't just wake up one day and decide that I thought rms had a point. I actually received 2 letters (via snail mail) at my house from the Business Software Alliance, stating that if I had purchased - oh, I mean licensed - any software from their member companies (e.g., Microsoft or Autodesk), I had agreed to their "right" to enter my home and search my computers for any copyright violations.

I started reading their EULAs and found that they gave themselves all kinds of ludicrous "rights", including in many cases the "right" to add more "rights" to their arsenal later on by merely editing a page on a website.


This text is worth repeating.

I am absolutely convinced that the vast majority of people have no idea how thoroughly onerous and anti-user commercial-licensed software EULAs actually are.

It makes perfect sense for software users to completely avoid software of this nature. Shunning any commercial-licensed software from the BSA members is a very good place to start:

http://www.bsa.org/country/BSA%20and%20Members/Our%20Me...

Reply Score: 5

RE[2]: Fiddlesticks...
by Soulbender on Sat 11th Sep 2010 11:37 UTC in reply to "RE: Fiddlesticks..."
Soulbender Member since:
2005-08-18

I had agreed to their "right" to enter my home and search my computers for any copyright violations.


I'm pretty sure this is an illegal contract clause. You should bring it up with whatever consumer rights organization you have there.

Reply Score: 4

RE[3]: Fiddlesticks...
by ricegf on Sat 11th Sep 2010 12:02 UTC in reply to "RE[2]: Fiddlesticks..."
ricegf Member since:
2007-04-25

It's more satisfying to thumb my nose at the jerks.

Why, right on their home page they have the audacity to state, "Whether you are copying, downloading, sharing, selling, or installing multiple copies of software onto personal or work computers, you are committing software piracy."

Really, BSA? I do all those things with GPL software. Am I a "pirate"? Or are you a dinosaur?

Reply Score: 6

RE[2]: Fiddlesticks...
by qbast on Sat 11th Sep 2010 19:14 UTC in reply to "RE: Fiddlesticks..."
qbast Member since:
2010-02-08


A final thought: How different in attitude are the above EULAs from "either version 3 of the License, or (at your option) any later version" recommended for use with the GPL?


GPLs gives user the ability to choose whatever version of GPL he wants to follow. Quite the opposite from EULA.

Reply Score: 1

RE[3]: Fiddlesticks...
by ricegf on Sat 11th Sep 2010 21:06 UTC in reply to "RE[2]: Fiddlesticks..."
ricegf Member since:
2007-04-25

You nailed it exactly. That's why my first preference is always for GPL software, and my second preference is for "permissively licensed" software. The rest I simply prefer (and almost always am able) to avoid.

Reply Score: 3

Right but
by Soulbender on Sat 11th Sep 2010 04:27 UTC
Soulbender
Member since:
2005-08-18

the fact that EULA's in principle are deemed legal does not mean that all EULA's are legal or that all clauses in an EULA are legal.

Reply Score: 7

RE: Right but
by bibe on Sat 11th Sep 2010 13:51 UTC in reply to "Right but"
bibe Member since:
2005-07-09

True that. The legal principal is called "quid pro quo".

Wiki: Quid pro quo (From the Latin meaning "something for something") indicates a more-or-less equal exchange or substitution of goods or services. English speakers often use the term to mean "a favor for a favor"...

...If the exchange appears excessively one sided, courts in some jurisdictions may question whether a quid pro quo did actually exist and the contract may be void by law.

Reply Score: 1

A few points
by google_ninja on Sat 11th Sep 2010 06:16 UTC
google_ninja
Member since:
2006-02-05

nobody is putting a gun to your head to license software. This is a choice you make. If a company does something or demands something that is unacceptable for you, don't freakin use it.

The GPL is free code that requires you to change how you license your code if you use it. I don't think anyone here thinks thats wrong, even though that power goes WAY beyond the power a person would have if they sold you something. When Linksys (for example) broke the terms of the license, nobody said that the GPL should be overturned, they wanted the freakin code, because if Linksys didn't want to abide by the terms of the GPL, they shouldn't have used it.

What is the difference between stallman demanding you change the license of something he has nothing to do with, and autodesk demanding you destroy something you legally bought? one is a loveable hippy, the other is a heartless multinational.

I'm not saying that autodesk is good or right or anything like that. I am saying that people need to stop deluding themselves about these things. Buying software, movies, books, etc are not the same thing as buying a loaf of bread, your rights are very very different. If the company is demanding too much, write them an email explaining why you didn't buy their product. If enough people do that, things will change.

Reply Score: 2

RE: A few points
by WereCatf on Sat 11th Sep 2010 06:24 UTC in reply to "A few points"
WereCatf Member since:
2006-02-15

one is a loveable hippy

There is nothing loveable about him, though.

Reply Score: 2

RE[2]: A few points
by google_ninja on Sat 11th Sep 2010 07:58 UTC in reply to "RE: A few points"
google_ninja Member since:
2006-02-05

Yeah, I was trying to make a point. I think the guy is a dick too :-). as an aside, I ran across this just yesterday http://www.youtube.com/watch?v=I25UeVXrEHQ

Reply Score: 2

RE[3]: A few points
by WereCatf on Sat 11th Sep 2010 08:05 UTC in reply to "RE[2]: A few points"
WereCatf Member since:
2006-02-15

Eugh! That's gross! ;)

Reply Score: 2

RE: A few points
by Thom_Holwerda on Sat 11th Sep 2010 06:39 UTC in reply to "A few points"
Thom_Holwerda Member since:
2005-06-29

I'm not against the concept of licensing software.

I'm against the shady business practice of masquerading the licensing of software as a sale. Luckily, I live in a sane world, and this shit won't fly in Europe, because it's a post-sale restriction.

If software "vendors" (LOL) want to do this right, then they ought to present the license as part of the "sale" (LOL), both on their website, as well as through their re"sellers" (LOL).

But they don't. As such, EULAs can suck my big fat popcicle. I just can't understand people supporting these shady business practices. You're basically shooting yourself in your own foot!

Also, I'm 100% certain even these judges broke an EULA at least once.

Reply Score: 3

RE[2]: A few points
by google_ninja on Sat 11th Sep 2010 07:46 UTC in reply to "RE: A few points"
google_ninja Member since:
2006-02-05

So basically, youre saying that putting up a bajillion pages of legalese with an ok button isn't enough to indicate that this is different then buying a sandwich.

How about more "intangible" software? Like paying for rememberthemilk.com or something like that. There is no physical anything changing hands, but you are still going to get that gigantic license agreement you have to agree with.

I don't necessarily disagree with you, just sort of curious where you draw the line.

Reply Score: 2

RE[3]: A few points
by Thom_Holwerda on Sat 11th Sep 2010 08:16 UTC in reply to "RE[2]: A few points"
Thom_Holwerda Member since:
2005-06-29

So basically, youre saying that putting up a bajillion pages of legalese with an ok button isn't enough to indicate that this is different then buying a sandwich.


Except... Said legalese and okay button are only presented AFTER the sale has already concluded, and as such, FAIL.

They claim they're selling a service - then be a man and act like you're selling a service. When I want a mobile phone contract - a service - I'm offered a contract to properly sign, including all the terms and conditions to look over.

When I take up an insurance - a service - I'm offered a contract to properly sign, including all the terms and conditions to look over.

When I rent a car - a service - I'm offered a contract to properly sign, including all the terms and conditions to look over.

And so on. And so forth. There is no reason why software licensers (I'm banning the term vendors) can't do the same. Sure, it would be problematic for online sales, but that's not my problem. Entering into a mobile phone contract online in The Netherlands requires you to print out the contract and send it in, signed and well. Software licensers should do the same.

Why do people want to create special exemptions for software licensors? Why are they held to different standards?

Edited 2010-09-11 08:17 UTC

Reply Score: 3

RE[3]: A few points
by Soulbender on Sat 11th Sep 2010 09:15 UTC in reply to "RE[2]: A few points"
Soulbender Member since:
2005-08-18

So basically, youre saying that putting up a bajillion pages of legalese with an ok button isn't enough to indicate that this is different then buying a sandwich.


Because it's not. There's no reason software need to be different. We already have copyright protection and existing laws that protect software as much as any other consumer product. The fact that the industry is doing their best to convince you and everyone else otherwise doesn't mean they're right.
And I dont for a moment buy the bullshit that "it's easier to copy". It's not like it's hard to copy CD's or videos or books etc these days but you don't see EULA's on those.

No, this is the industry trying to exploiting the lawmakers ignorance to further it's own agenda.

Like paying for rememberthemilk.com or something like that.


it's a membership. There are existing laws governing that too and it's entirely different from purchasing software.

Reply Score: 3

RE[2]: A few points
by Soulbender on Sat 11th Sep 2010 09:00 UTC in reply to "RE: A few points"
Soulbender Member since:
2005-08-18

Hmmm...I'm pretty sure you have previously stated that you had been told by a law professor in NL that EULA's are legal there too. It would seems that at least one part of Europe is as fucked as the U.S.
Of course, EULA's can't over-ride your local consumer laws anyway so it's not a disaster.

Reply Score: 2

RE[3]: A few points
by dmantione on Sat 11th Sep 2010 14:50 UTC in reply to "RE[2]: A few points"
dmantione Member since:
2005-07-06

Let me comfort you: We have a good law system that does not allow post sale restrictions.

An EULA can be legal in .nl, like it can be legal in most of the world, since it is a contract. Christiaan Alberdingk Thijm is am intellectual property lawyer that always a bit pro-industry, but in principle what he explained to Thom was correct: If a software comes with an EULA, you should not assume it is void.

Now the other part of the story.

In The Netherlands, like in the rest of the world that has a law system based on Roman law, the sales agreement is considered very important. If there exists a sales agreement (which can be proven by an invoice), the software is sold.

Therefore a Shrink-Wrap/Click-Wrap EULA stating "licensed, not sold" writes nonsense under Dutch law, and therefore looses its power to enforce restrictions.

There are a few other ways to attack EULA's, namely:
* Consumer protection laws
* Laws on Terms & Conditions

If EULA is agreed on as part of the sales agreement, is not contrary to consumer laws, and not contrary to laws on terms & conditions, then it is legally binding.

However, I haven't seen many EULA's that pass this.

Edited 2010-09-11 14:52 UTC

Reply Score: 3

RE[4]: A few points
by Thom_Holwerda on Sat 11th Sep 2010 14:52 UTC in reply to "RE[3]: A few points"
Thom_Holwerda Member since:
2005-06-29

If EULA is agreed on as part of the sales agreement, is not contrary to consumer laws, and not contrary to laws on terms & conditions, then it is legally binding.

However, I haven't seen many EULA's that pass this.


Look no further than enterprise-class software. Oracle, Sun, IBM, that sort of thing. In those cases, proper contracts are drawn up, since software licensers know goddamn well that while they can fcuk over individuals like you and me, they can't fcuk over other big companies.

Reply Score: 1

RE: A few points
by roverrobot on Sat 11th Sep 2010 06:54 UTC in reply to "A few points"
roverrobot Member since:
2006-07-23


The GPL is free code that requires you to change how you license your code if you use it. I don't think anyone here thinks thats wrong, even though that power goes WAY beyond the power a person would have if they sold you something. When Linksys (for example) broke the terms of the license, nobody said that the GPL should be overturned, they wanted the freakin code, because if Linksys didn't want to abide by the terms of the GPL, they shouldn't have used it.


GPL is about copyright. As someone pointed out, copyright is not the same as ownership. For example, if you have bought a book, can you claim that whatever said in the book is now yours? No! But, can you resell the book? Yes!

Reply Score: 3

RE[2]: A few points
by google_ninja on Sat 11th Sep 2010 07:56 UTC in reply to "RE: A few points"
google_ninja Member since:
2006-02-05

GPL is about licencing, that is what the L stands for.

I was using books and cds as an example of a purchase with additional restrictions. If I buy bread, I can photocopy it. If I buy a book, I can't photocopy it. You have different rights depending on what you buy.

Reply Score: 1

RE[3]: A few points
by WereCatf on Sat 11th Sep 2010 08:11 UTC in reply to "RE[2]: A few points"
WereCatf Member since:
2006-02-15

GPL is about licencing, that is what the L stands for.

GPL is a copyright license, not a sales license. I already warned another person here about mixing the two and you are making the same mistake. Sales laws != copyright laws.

I was using books and cds as an example of a purchase with additional restrictions. If I buy bread, I can photocopy it. If I buy a book, I can't photocopy it. You have different rights depending on what you buy.

Actually yes, you can photocopy it. There is nothing illegal with that. It is perfectly fine and legal to do for your own use. You can't however spread those photocopies to others without permission, that's where copyright law steps in.

I really, really wish you people would educate yourselves on copyright, sales and contract laws before claiming things. I am sickeningly tired of seeing the same mistaken claims being made all the time.

Reply Score: 3

RE[3]: A few points
by lemur2 on Sat 11th Sep 2010 08:17 UTC in reply to "RE[2]: A few points"
lemur2 Member since:
2007-02-17

GPL is about licencing, that is what the L stands for.

I was using books and cds as an example of a purchase with additional restrictions. If I buy bread, I can photocopy it. If I buy a book, I can't photocopy it. You have different rights depending on what you buy.


AFAIK: If you buy a book, you can indeed photocopy it. You just aren't allowed to re-distribute (i.e. sell) the photocopy. You are allowed to re-sell the original, as long as you do not keep a photocopy (which is to say that if you sell the book then you can no longer have it).

Reply Score: 3

RE[4]: A few points
by Bounty on Mon 13th Sep 2010 18:49 UTC in reply to "RE[3]: A few points"
Bounty Member since:
2006-09-18

"GPL is about licencing, that is what the L stands for. I was using books and cds as an example of a purchase with additional restrictions. If I buy bread, I can photocopy it. If I buy a book, I can't photocopy it. You have different rights depending on what you buy.
AFAIK: If you buy a book, you can indeed photocopy it. You just aren't allowed to re-distribute (i.e. sell) the photocopy. You are allowed to re-sell the original, as long as you do not keep a photocopy (which is to say that if you sell the book then you can no longer have it). "

I think you're intentionally misrepresenting his point. You can sell photocopies of bread. Bread does not equal a book.

Reply Score: 2

RE: A few points
by lemur2 on Sat 11th Sep 2010 08:04 UTC in reply to "A few points"
lemur2 Member since:
2007-02-17

The GPL is free code that requires you to change how you license your code if you use it. I don't think anyone here thinks thats wrong, even though that power goes WAY beyond the power a person would have if they sold you something. When Linksys (for example) broke the terms of the license, nobody said that the GPL should be overturned, they wanted the freakin code, because if Linksys didn't want to abide by the terms of the GPL, they shouldn't have used it.


Nitpick: the GPL says absolutely nothing about your code. The GPL addresses only what permissions you are granted for GPL code (written by someone else). That is to say, what you are permitted to do with THEIR code. Not your code.

Your code (that is to say, code that you wrote) you may do whatever you like with.

Anyone else's code ... you require permission from the authors to do anything at all with it. This is copyright law.

In the Linksys case ... it wasn't Linksys's code, it was GPL code written by someone else. It would have been exactly the same outcome if Linksys had used stolen Windows source code from Microsoft and used that.

Having clarified that point ... carry on.

Reply Score: 3

v RE[2]: A few points
by bogomipz on Sat 11th Sep 2010 14:51 UTC in reply to "RE: A few points"
RE[3]: A few points
by lemur2 on Sat 11th Sep 2010 17:45 UTC in reply to "RE[2]: A few points"
lemur2 Member since:
2007-02-17

Well, let's say you write a 10000 line program, but in that program you use 100 lines of GPL code somebody else wrote. Then you relase the binary. According to the GPL, you now have to release your entire code base under GPL, even if your plan was to keep it closed source.


Not so. Look up the definition of "derivative work" under copyright law.

A derivative work is a later work which contains in part major elements of another earlier copyrighted work.

So, your 10000 line program contains just 100 lines of an earlier work. 1%. Probably insufficient to be consider a "major element" of the earlier work.

But, even if it is considered to fall within the definition of a derived work, then ownership of the derived work is split between the authors in accordance with the level of their relative contributions. This means that the authors of the GPL code have 1% ownership in the program.

The derived work can only be distributed when all the owners reach mutual agreement on the rights to distribution. In this example, you could probably either pay the GPL authors a small amount for a commercial license to use their 100 lines, or alternatively offer to give them 1% of the profits.

Edited 2010-09-11 17:45 UTC

Reply Score: 3

RE: A few points
by andydread on Sat 11th Sep 2010 21:42 UTC in reply to "A few points"
andydread Member since:
2009-02-02



I'm not saying that autodesk is good or right or anything like that. I am saying that people need to stop deluding themselves about these things. Buying software, movies, books, etc are not the same thing as buying a loaf of bread, your rights are very very different. If the company is demanding too much, write them an email explaining why you didn't buy their product. If enough people do that, things will change.


So basically what that means then is nothing will change.
not enough people will write as u say. And the masses are generally ignorant that when they purchase something that comes with software or purchase the software itself they are not purchasing but are licensing which means they do not own what they think they have just purchased. They have no clue. So we might as well just pack it in. They win we lose.

Reply Score: 2

RE: A few points
by alcibiades on Mon 13th Sep 2010 08:43 UTC in reply to "A few points"
alcibiades Member since:
2005-10-12

If a company does something or demands something that is unacceptable for you, don't freakin use it.

No, there is another alternative. Find out if this clause is lawful, under the law of contract in the jurisdiction in question. Not all are.

Reply Score: 3

All of us?
by Soulbender on Sat 11th Sep 2010 06:26 UTC
Soulbender
Member since:
2005-08-18

Last time I checked the majority of earth's population does NOT live in the U.S.
The legitimacy of EULA's and the clauses in EULA's are subject to local consumer laws so this decision matters nothing to most people in the world.

Reply Score: 3

Criminal? Not me.
by lemur2 on Sat 11th Sep 2010 08:12 UTC
lemur2
Member since:
2007-02-17

FTA:

With this ruling, I think pretty much every OSNews reader has been turned into a criminal - I can assure you each and every one of us has, at one point, violated one of the licenses of our software.


I have valid licenses for all of the software I use. Most of it is GPL or BSD licensed, I have never re-distributed any software, and I have unconditional permissions to run the software on as many of my machines as I please.

AFAIK there is only one EULA for any piece of software that I use, and that is the EULA for Adobe's Flash plugin. Since I use that only for viewing Flash content within my web browser, which is its very purpose, AFAIK I haven't once violated any condition at all in any of my software licenses.

Reply Score: 1

invention of EULA
by boardshepherd on Sat 11th Sep 2010 12:12 UTC
boardshepherd
Member since:
2010-09-11

Whoever invented the licensing of software back in 80's (maybe 70's) was clearly a "genius", this model is on one hand an excellent tool for milking consumers, on the other hand it is completely out of sync with common sense. Today's law whether in the US or the rest of the world is many times so far away from what everybody senses is right that it is scary.

Reply Score: 2

RE: invention of EULA
by wakeupneo on Sat 11th Sep 2010 15:15 UTC in reply to "invention of EULA"
wakeupneo Member since:
2005-07-06

If memory serves me correctly, that would be...Bill Gates:

http://upload.wikimedia.org/wikipedia/commons/1/14/Bill_Gates_Lette...

Reply Score: 2

Ridiculous, no common sense
by cmost on Sat 11th Sep 2010 12:45 UTC
cmost
Member since:
2006-07-16

Here in the U.S. we citizens seem to become stupider by the day. We're standing for this nonsense? For a country that bills itself as "the land of the free" or "by the people for the people..." I have never encountered a society more restrictive or one that places less value on personal rights. And they say patriotism is dead in America. Gee, I wonder why?

Reply Score: 2

Uhm...
by Thom_Holwerda on Sat 11th Sep 2010 12:46 UTC
Thom_Holwerda
Member since:
2005-06-29

Wait just one popcicle-sucking minute...

If I'm not buying software...

...then why in the name of fcuk do I pay sales tax over it?

Reply Score: 2

RE: Uhm...
by UltraZelda64 on Sat 11th Sep 2010 14:02 UTC in reply to "Uhm..."
UltraZelda64 Member since:
2006-12-05

Very good point...

Reply Score: 2

RE: Uhm...
by Soulbender on Sat 11th Sep 2010 14:31 UTC in reply to "Uhm..."
Soulbender Member since:
2005-08-18

i dunno, ask the dutch government. Usually you only pay sales tax on the products you purchase but maybe you have a different system.
I know I'd be pretty pissed if I paid sales tax on the all the smokes and alcohol I'm not buying.

Reply Score: 2

RE: Uhm...
by namakemono on Mon 13th Sep 2010 14:48 UTC in reply to "Uhm..."
namakemono Member since:
2009-07-01

Just verified here.

In our country, we pay taxes of the media. Software is considered a service, and may be taxed, depending on the place it is acquired - i.e., service taxes are city incomings and vary from one city to other.

The worst part is that our city has one of highest taxes in services.

Reply Score: 1

Comment by westlake
by westlake on Sat 11th Sep 2010 13:15 UTC
westlake
Member since:
2010-01-07

The architectural engineering was caught running unlicensed copies of Autodesk R14.

Autodesk offered them a chance to go legit with a steeply discounted upgrade to R15 - on the condition that all their copies of R14 would be destroyed.

The firm agreed -

but their copies of R14 are spotted on eBay, complete with hand written activation codes.

There was never a legal transfer of title or license to the vendor.

His recourse is against the architectural engineers responsible for this flim-flam -

assuming he wasn't part of it from the beginning.

Reply Score: 2

No problem in England :-)
by thingi on Sat 11th Sep 2010 15:36 UTC
thingi
Member since:
2006-02-28

In England this ruling would never have happened :-)

We have the 'Unfair Terms in Consumer Contracts Regulations 1999'.

A good example of an unfair contract term is a 'Ladybird' (Penguin) book purchase - they still specifically state 'not for resale' in their sale terms but the right to resell any book in the UK has been cited as a example use of the above Act during a house of commons select committee meeting.

Surely in the US you have a similar law that takes precedent over this crazy ruling?

Edited 2010-09-11 15:38 UTC

Reply Score: 1

FCUK 'EM!
by bornagainenguin on Sat 11th Sep 2010 16:05 UTC
bornagainenguin
Member since:
2005-08-07

I have only one response to this ruling---AVAST YE MATEYS AND HOIST THA JOLLY ROGER!

If these foolish companies want to continue making it difficult for people to be legal customers by their twisting of common sense and buying politicians then there is no reason for anyone to take anything they do seriously. What point is there in playing a game you already know is rigged? Congratulations you have now taken away any reason for people to even try to be legal. "An unjust law is no law at all."

Thankfully I mostly use Linux these days except on a few machines I have WinXP on but thanks to this ruling even that will change soon and I will be going Linux all the way around. At least with Linux I can switch to a different distro if I need to! What choice do Windows users have when the EULA can be modified by a security update!?!

Moreover I expect to be explaining to my customers what this means to them and why suddenly they are not allowed to sell their used computer without buying a copy of Windows for refurbished computers and why buying a refurb will now cost more.

In time as the reverberations of this ruling spread to DVDs, games and other media expect to see me at the store asking questions about the EULA and holding up the line. I can't stop the juggernaut but I can certainly spread the pain around as far as it will go and do my damned best to educate people.

--bornagainpenguin

Reply Score: 2

Any copyrighted work has an EULA
by TheGZeus on Sat 11th Sep 2010 16:46 UTC
TheGZeus
Member since:
2010-05-19

In a book, it's the copyright page, usually on the front in European language texts, the back in Japanese (I can't speak for any other Asian languages).
The GNU GPL, BSD, Apache and all other free software licenses are also EULA-en.
All the music/'sound art' (yes, a pretentious name for basically noise) I've been involved in is under an EULA, CC-BY-SA, to be exact. Well, some stuff I've done with others is CC-BY-NC-SA(I got that order correct? whatever).
Without the EULA we have no hard-copyleft. No copyleft _at all_.

Are there evil EULA, that are not actually legal, but enforced? Yes. The iFoo group of devices have a notice on their box that by opening the box you agree to the EULA inside the box.
One cannot be expected to agree to a contract without having opportunity to read it! That license falls on its face under basic contract law, but Apple's got deep pockets and no soul, so it gets enforced.

The problem isn't the existence of EULA, it's the fact that people ignore them.
"What? I'm not allowed to [whatever]??? That's outrageous!" Well, you agreed to those terms when you clicked that little box and completed the installation.
Software is not sold. It's a copyrighted work. It's an idea, so you license it. If you sell it, you're actually selling the right to make copies and the ability to license them to others.
Oracle bought Sun's software, customers licensed the software from Sun. Now those same people license it from Oracle.
BASH is licensed from the GNU Foundation, but I get it from Debian because GNU explicitly gives the right to redistribute it.
The standard EULA is "All Rights Reserved" which means "any rights granted or restricted by copyright law are reserved by the owner of the copyright indicated." It's also generally followed by an explicit denial of the end-user's ability to copy it.

Without an EULA, it defaults to All Rights Reserved, but would allow resale of the physical media, but then you'd be making a copy by installing it, so you would have to run from the supplied media.
An EULA actually grants the right to install a copy of the software in most cases. That's copying.

See how complicated this shit gets?
I use RAR and Flash, other than that it's all FLOSS for me.
Tasty, tasty freedom. Mmmm-mmm good.

Reply Score: 1

Thom_Holwerda Member since:
2005-06-29

The GNU GPL, BSD, Apache and all other free software licenses are also EULA-en.


Jesus H. Christ, are you people intentionally spreading lies or what? How many times has this been cleared up, like a billion times?

An EULA governs USE. It's in the name for god's sake: END USER license agreement.

The GPL/etc. do NOT govern use. They govern DISTRIBUTION.

This isn't rocket science, people.

Reply Score: 5

TheGZeus Member since:
2010-05-19

Wow, you... don't understand these licenses.

An EULA covers both use _and_ distribution.
The majority of FLOSS licenses explicitly waive all restrictions on use, and explicitly state that it's not guaranteed to be good for any purpose, but can be used for any purpose.
They grant the right to use it however you wish.
They grant the right to distribute however you wish, sometimes requiring you to also distribute source code.

I'm not lying, and I'm not wrong. Have you ever read these licenses? If not, you're no better than the people who don't read Proprietary EULA, then get angry when they are required to comply.

End User License Agreement.
Redistribution as part of an operating system is a use.
The end user is whoever is using it.
The GNU General Public LICENSE.
Which you must AGREE TO to USE(and/or copy) it.

Reply Score: 0

Thom_Holwerda Member since:
2005-06-29

Have you ever read these licenses?


Uh, kiddo, I've read and studied them more often than you can imagine.

The GNU General Public LICENSE.
Which you must AGREE TO to USE(and/or copy) it.


Uh, wrong. As wrong as wrong can ever be. The GPL covers ONLY distribution, and as such, a user NEVER has to agree with the GPL. Where do you get this nonsense?

Just read this little 101, okay kiddo? I'm SO sick of people like you spreading these kinds of lies. These are such basic things that have been explained SO MANY TIMES it is just BAFFLING to see people repeat them STILL.

http://www.osnews.com/story/22233/The_Difference_Between_EULAs_and_...

Reply Score: 1

TheGZeus Member since:
2010-05-19

Was anything in the way you decided to address me neccessary?

Why did you feel the need to be rude?

How is the creation and distribution of a derivative work not a 'use' of the software?

There's this stigma attached do the term EULA, but it's a general term that absolutely encompasses free software licenses.

If you make proprietary licenses invalid, you have to do the same for Free licenses.
Copyright is the only law that covers both sides of the software fence.
The copyright owners can grant/deny anything in regards to their work.
Them's the facts.

Installation is copying, data is not moved, it is copied.
Once the copy is made, if they require destruction of the original, that's fucked up, but it's within their rights, that's the fucked up part of this case.

Their EULA is too far-reaching. It extends past what is reasonable. Same with many proprietary licenses.

That doesn't change the fact that 'user' is a very broad term, and I see no difference between a 'user' of software and a 'programmer' of software.

You were very rude to me because you felt the need to demonise an accurate term.
"AARGH! EULA HAS A NEGATIVE CONNOTATION TO ME! I MUST SCREAM AT PEOPLE TO PROVE THAT I AM NOT AN END USER WHEN I USE CODE AND ALLOW OTHERS TO USE THE RESULT!!"
Is not a very good way to get your point across.

Neither is saying that copyright licenses are different from EULA. EULA only cover copyrighted work, are only enforceable if the conveyor of the license owns the copyright, or has been explicitly been given the right to distribute licenses to third parties and enforce said licenses by the owner of said copyrighted work.

This is basic logic, and there's no need for the vitriol you're spewing at me.
Distribution can be a use.

Just because EULA is normally associated with proprietary licenses does not make creating a derivative work or redistribution something other than a possible use of a copyrighted work.

The warranty clause is the only thing that mentions use in the GPL and most other free software licenses, but that's explicitly giving you the right to use it, but leaving you with no right to sue if you do and dislike the results.

That still covers use, the user, and the copyright holder.


Learn to control your emotions a bit more, and be a bit more chill, like the happy fun-time rainbow unicorn in your avatar.

Reply Score: 1

lemur2 Member since:
2007-02-17

How is the creation and distribution of a derivative work not a 'use' of the software?


The meanings of the words as used within the GPL license text is actually defined in the GPL text.

http://www.gnu.org/licenses/gpl-3.0.html

Section 0 "Definitions".
To “propagate” a work means to do anything with it that, without permission, would make you directly or secondarily liable for infringement under applicable copyright law, except executing it on a computer or modifying a private copy. Propagation includes copying, distribution (with or without modification), making available to the public, and in some countries other activities as well.

To “convey” a work means any kind of propagation that enables other parties to make or receive copies. Mere interaction with a user through a computer network, with no transfer of a copy, is not conveying.


My bold.

The acts you describe, to whit "the creation and distribution of a derivative work", would come within the meaning of the term "propagate" (rather than merely "use") as defined for the purposes of the GPL.

Edited 2010-09-12 06:54 UTC

Reply Score: 2

WereCatf Member since:
2006-02-15

How is the creation and distribution of a derivative work not a 'use' of the software?

Lemur already answered this but in his own typical way of throwing a bunch of links and not being too coherent. So, I am answering in a way that hopefully even a layman would understand.

'Use' of GPLed software literally means using it in a personal environment, ie. you do something with it. Using GPLed code in f.ex. a software project you are coding is literally using it, after all you do something with it. It is a derivate work then but as you are not distributing it you are free to do as you may with it.

It's when you wish to distribute the application you wrote that the copyright law steps in: you have code in your application that is copyrighted to another party and you have to agree to their terms before you can distribute their copyrighted work. This is not 'use' of the code, however, this is literally distribution, and copyright law is all about distribution of copyrighted works.

If you make proprietary licenses invalid, you have to do the same for Free licenses.
Copyright is the only law that covers both sides of the software fence.
The copyright owners can grant/deny anything in regards to their work.
Them's the facts.


Incorrect. Copyright law governs the distribution of copyrighted works, not use. In most EULAs in proprietary software there are lots of clauses how you can use the software and how you can't, but such clauses do not belong under the copyright law and are invalid in most countries. Of course, the parts where EULA says you are not allowed to copy the software to others etc do fall under copyright law and those parts are valid.

Then again, selling a copyrighted work as a whole, not parts of it or copies of it, belong under sales law; it's not distribution, it's the copyrighted work changing owner from one to another with the aforementioned party losing their ownership. EULAs cannot dictate how sales laws applies to them and thus all such clauses are again invalid. And before you jump to conclusions: no, it's sales about the particular work, not the copyright of it.

(I'm starting to think that it'd be easier to just write a complete article explaining these things than just repeating the same things in comments section every time someone who doesn't understand what he's talking about makes erroneous claims..)

Reply Score: 3

TheGZeus Member since:
2010-05-19

Yes, EULA go beyond copyright law, but the only reason they have the ability to restrict your use and/or redistribution _at all_ is due to copyright law.

If there were no copyright law it would be perfectly legal/valid to crack the software so the EULA would not appear and use the software however you wished.
That's not the case, though because you've now created a derivative work, which is something covered by copyright law.

Again, there is one clause in the GPL/other licenses that covers use: The Warranty Clause.
It's explicitly giving rights in regard to use, and warning of all responsibility for the results of said use being placed on the user.
That would be a good thing to know for most people, actually. How many bug reports are angry because people feel they have a 'right' to software that works how they want it to?
But that's a philosophical discussion.

The distinction between free licenses and EULA is a philosophical one.
EULA carries a stigma, but there's nothing in the term that makes it distinct from free licenses.
Proprietary EULA generally cover alot more ground than Free ones, yes, but they both cover distribution.

By saying they're different because one covers 'use' implies that there's a difference between 'use' and 'programming'.
Perhaps I'm just unduly enlightened here, as I can't program well at all, but I always thought "The difference between users and programmers is programmers know there's no difference". (source forgotten)
The percieved distinction between them is created by proprietary software vendors trying to make programming seem like majick. (*coughapplecough*).

BASH is turing-complete. The CLI is a repl. There are arguments that GUI use is a form of programming.
Do all of these create derivative works? No.
But "use" and "distribution". are different. "use" and "programming" are not.

Use _is_ covered by free licenses: "use it however you want".
It's just not _restricted_.

It's the fact that you must be granted (installation of a copy) additional right(s), _and_ they choose to restrict standard rights (numerous bullshittery, single machine, cannot be moved, etc) that make them something you must agree to. You have to _waive_ rights, so you must agree to a contract.
If I wanted someone who was releasing something under the GPL to allow me to use it under the terms of the Apache license, I would have to ask them permission, and they would have to agree before I could use it, as they would have to waive additional rights that they held previously (the right to see all code from a derivative work).

Waiving rights requires explicit agreement, gaining them does not.

The 'difference' between free licenses and proprietary is one grants more rights, the other restricts you further than existing ones. (even if it's shareware, they generally explicitly disallow decompilation, or if it's interpreted they might explicitly prevent the use of the code in a derivative work, even if used only internally)

Stigma attached to a term does not prevent logic from putting free licenses under the umbrella term EULA.
where in the term End User License Agreement does it say "text that appears and must be agreed to prior to use"?

They both cover both Use and Copying/Distribution to varying degrees.
One is very concerned with both, one is very concerned with one or neither. (MIT doesn't give a f--k about either, really. Check the Crowley Public License some time)
One generally restricts, the other grants.
They both cover the same things, and can do so because of the same reason: The 1976 copyright act.
proprietary licenses use it how the lobbyists intended, the GPL et al hack it.
If two scripts use a subsystem, but one uses it in a new, unexpected way, that doesn't make the new script not use the subsystem.
Files get transfered over HyperTEXT transfer protocol every day.

I'm out of good ways to make my point atm. Need more coffee.

EDIT:
Just to be clear, I think this AutoDesk license is far to restrictive, and should have been considered invalid.
If the 'copy' (installed software) is 'destroyed' (deleted) then the original software is no longer in use.
The license should be transferrable to another party at that point. The same should be true with any EULA.
Sadly, EULA have been held up in the past.
Destruction of the original copy is the main difference between this and the license of say MS Windows, which is already draconian enough to make you pay for it again if you change out your mother board/hard drive.
Certain restrictions above copyright are reasonable (don't share it with your friends or install it on two machines. That would be fair use, I think, but I also understand why they would want to restrict that, and it's not unreasonable. I just don't use software like that because it's complicated remembering all this crap/telling my friends to go to this one site and get this and agree to that... "Install Debian" is much easier).
That's too much. That should not be upheld in court. It is. fok.

Edited 2010-09-12 14:50 UTC

Reply Score: 1

WereCatf Member since:
2006-02-15

If there were no copyright law it would be perfectly legal/valid to crack the software so the EULA would not appear and use the software however you wished.

It actually is legal and valid, though perhaps not in the US. Even if the EULA is not shown copyright law still applies. Not seeing copyright clause is not an excuse. And yes, it is fine and legal to crack, hack and modify software you have bought as long as you don't distribute it. If you don't distribute it copyright law doesn't apply to it either. It has already been court-tested several times and proved legal, claiming cracking/hacking software you have legally bought or obtainedd is illegal is misleading and not true.

And no, I am not talking about US laws.

Edited 2010-09-12 14:53 UTC

Reply Score: 2

Soulbender Member since:
2005-08-18

EULA would not appear and use the software however you wished.


What makes you think the copyrtight holder even have ANY rights at all dictating how their work is used? Does Ford have a right to tell you what roads you can drive their cars on or what race the passengers has to be?

That's not the case, though because you've now created a derivative work, which is something covered by copyright law.


Use does not create a derivative work.

Reply Score: 2

lemur2 Member since:
2007-02-17

Copyright law governs the distribution of copyrighted works, not use. In most EULAs in proprietary software there are lots of clauses how you can use the software and how you can't, but such clauses do not belong under the copyright law and are invalid in most countries.


A EULA is an "End User License and Agreement".

The license part is the part that grants permissions for the activities covered by copyright law, which as you say, essentially deals only with distribution.

The agreement part is purported to be an additional contract between the software vendor and the user, which is supposed to cover all kinds of restrictions for acts which are not covered by copyrighjt law at all. A contract is supposed to be agreed to by all parties. EULAs are claimed to be contractually binding, having purportedly gained mutual agreement when a user clicks "I Agree".

Contract agreements are held to be valid in all countries, AFAIK.

IMO, it is a wise idea to never click on "I Agree" for a EULA if you can possibly avoid it. You are agreeing to be bound by all sorts of conditions and restraints that no law requires you to be bound to.

In contrast, the GPL is a license only. It gives conditional permissions for the activities covered by copyright law. In addition, it gives unconditional permissions for other activities related to the software (such as "using" it, i.e. running it) which are not covered under copyright law.

I am not clear why the unconditional permissions, for those acts not covered by copyright law, are required. After all, it is not illegal to read a book which you have not purchased (e.g. you can borrow an book from a friend) ... if it were illegal to read we would have no libraries. So why should it be illegal to run software?

Anyway, the GPL gives you the permissions, required or not, just in case there is any doubt.

The GPL is not an agreement, it is merely a document granting permissions. It is a license only.

Edited 2010-09-13 02:16 UTC

Reply Score: 2

Lamego Member since:
2006-01-12

Some GPL software distributors do require the user to accept the GPL license during install.
How do you USE software without obtaining it from DISTRIBUTION ?

Anyway, the described court case is about distribution, not use. From an enforcement perspective it is aligned with the distribution conditions for GPL, which you must comply with.

And please stop being disrespectful, OSNews deserves better.

Reply Score: 1

WereCatf Member since:
2006-02-15

Some GPL software distributors do require the user to accept the GPL license during install.
How do you USE software without obtaining it from DISTRIBUTION ?


I can only assume those distributors themselves have just copied that practice from proprietary solutions without thinking. GPL is a copyright license, not an EULA per se, and is invalid when only using the software or code. GPL (and copyright law itself) applies only when distributing such yourself.

I give you that that it's a bad practice to ask users to agree or disagree with GPL before they can install the software in question; you are not required to agree with GPL to use GPLed software and thus the dialog is unneeded.

Reply Score: 3

bitwelder Member since:
2010-04-27

Heh, actually if there someone who has to agree/disagree with the GPL that one is not the final user but the developer/seller, when they choose it as their licensing scheme for 100% original code, or when they decide to include GPL-software in their product.

Reply Score: 3

Bounty Member since:
2006-09-18

"The GNU GPL, BSD, Apache and all other free software licenses are also EULA-en.
Jesus H. Christ, are you people intentionally spreading lies or what? How many times has this been cleared up, like a billion times? An EULA governs USE. It's in the name for god's sake: END USER license agreement. The GPL/etc. do NOT govern use. They govern DISTRIBUTION. This isn't rocket science, people. "

I thought the case that this article is based on is about distribution?

Reply Score: 2

Bad news... for "US" ;-)
by TBPrince on Sat 11th Sep 2010 18:01 UTC
TBPrince
Member since:
2005-07-06

This is bad news for people who live in US. Thank God, not all of us live there ;-)

There's a long list of differences among US laws and laws of other countries, expecially the EU but not only.

US legal system has a long history of pro-corporate standings but it's been long since US was able to force other countries to adopt such policies. And Anti-ACTA statements by EU parliament are just last proof of that.

Reply Score: 2

Hello DCMA lawsuits... again
by lordepox on Sat 11th Sep 2010 18:47 UTC
lordepox
Member since:
2010-04-14

It's impossible to not violate something in a EULA in the course of normal use. Software companies count on this. Many EULAs prohibit the use of software by a non-licensee (read: friends, family), so that "guest" account in Windows is a violation of the EULA. If you ever bother to read some of these very lengthy documents you would find them almost impossible to understand without a law degree. Lawyers, thanks again for ruining my day. Signed. US Citizen.

Reply Score: 2

Civil disobedience
by Zifre on Sat 11th Sep 2010 20:43 UTC
Zifre
Member since:
2009-10-04

I think the only solution to this mess is to simply ignore the ruling. Just buy your software. (Better yet, use free software, but that isn't always possible or appropriate.)

I simply don't obey idiotic laws. I never will. I really don't care, and I probably won't ever get caught. Too many people think that they have to obey the laws. You don't. You just have to be prepared to accept the possible natural consequences that are out of your control.

And piracy will not help. You may think you are "sticking it to the man". You are really just giving fuel to the idiots that run the world, and depriving the software companies of money which I believe they have the right to have, regardless of how idiotic they are.

Reply Score: 4

RE: Civil disobedience
by Gullible Jones on Sat 11th Sep 2010 21:52 UTC in reply to "Civil disobedience"
Gullible Jones Member since:
2006-05-23

This sounds good in theory. In practice, the magnitude of the punishments doled out can make it quite impractical.

Reply Score: 2

RE[2]: Civil disobedience
by Zifre on Sat 11th Sep 2010 23:02 UTC in reply to "RE: Civil disobedience"
Zifre Member since:
2009-10-04

This sounds good in theory. In practice, the magnitude of the punishments doled out can make it quite impractical.

I'm guessing that breaking a EULA is a lesser crime than piracy. Because otherwise, there would be no point in accepting a EULA that you wouldn't obey. You would be better off pirating the software with EULA removed.

Of course, using free software when possible is the ideal solution.

Reply Score: 2

RE[3]: Civil disobedience
by Soulbender on Sun 12th Sep 2010 05:27 UTC in reply to "RE[2]: Civil disobedience"
Soulbender Member since:
2005-08-18

I'm guessing that breaking a EULA is a lesser crime than piracy


Since EULA's are not law it's not a crime at all, it's just a contract violation.

Reply Score: 3

RE[4]: Civil disobedience
by lemur2 on Mon 13th Sep 2010 04:48 UTC in reply to "RE[3]: Civil disobedience"
lemur2 Member since:
2007-02-17

"I'm guessing that breaking a EULA is a lesser crime than piracy
Since EULA's are not law it's not a crime at all, it's just a contract violation. "

The "L" part of EULA is a license. This license part grants permissions that are required by copyright law for you to make a copy of the software on your hard disk (i.e. install the software).

Other than that, the rest of the EULA is a contract, not required by copyright law, and hence violating any of the other restrictions within the EULA is merely a contract violation, and not a criminal act.

Reply Score: 2

RE: Civil disobedience
by Neolander on Sun 12th Sep 2010 05:10 UTC in reply to "Civil disobedience"
Neolander Member since:
2010-03-08

I think the only solution to this mess is to simply ignore the ruling. Just buy your software. (Better yet, use free software, but that isn't always possible or appropriate.)

I simply don't obey idiotic laws. I never will. I really don't care, and I probably won't ever get caught. Too many people think that they have to obey the laws. You don't. You just have to be prepared to accept the possible natural consequences that are out of your control.

And piracy will not help. You may think you are "sticking it to the man". You are really just giving fuel to the idiots that run the world, and depriving the software companies of money which I believe they have the right to have, regardless of how idiotic they are.

I think that's one of the most sensible posts on this thread.

Reply Score: 3

Courts of Equity
by pompous stranger on Sat 11th Sep 2010 23:13 UTC
pompous stranger
Member since:
2006-05-28

For the commenters above wondering, the opposite of justice is called equity, and the opposite of a common law court is called an equity court (or a "chancery court"). Several US states actually still have courts of equity; Delaware's is probably most famous due to the phenomenon of Delaware incorporation.

N.B. Charles Dickens was a law clerk and litigant in a court of equity in England and Bleak House was inspired by his frustrations with the system.

Reply Score: 1

KenJackson
Member since:
2005-07-18

The court further stated that whatever is in the license is binding, no matter how ridiculous.


This reminds me of the time some eager reporter searched through Chief Justice Rhenquist's life and found a contract he had signed to buy a house years ago. It contained a clause requiring him to only sell the house to white people. The reporter was trying to make him out to be a racist, of course.

But Rhenquist said it was a standard form and many contracts had a race clause at the time, but that it didn't matter anyway because all those clauses were all made null and void by law.

Ok, a contract to buy a house isn't a EULA, but they're both legal agreements. And if they're upholding ridiculous crap for EULAs I wonder what other ridiculous crap they'll decide to uphold.

Reply Score: 3

Sadly
by fretinator on Mon 13th Sep 2010 18:54 UTC
fretinator
Member since:
2005-07-06

U.S.A., Inc.

Reply Score: 3

Comment by Bounty
by Bounty on Mon 13th Sep 2010 21:52 UTC
Bounty
Member since:
2006-09-18

I have a copyright question. In the US system.

If I buy a magazine and tear out page 17, then give it away to someone, letting them know I kept, burnt, ate, whatever page 17.... is that legal?

Reply Score: 2

RE: Comment by Bounty
by TheGZeus on Tue 14th Sep 2010 03:09 UTC in reply to "Comment by Bounty"
TheGZeus Member since:
2010-05-19

If you call it an artistic move and/or claimed to have made it better or something, I think it might be, but no one would ever prosecute for it...
Hopefully.

Fair use should be much broader than it us currently interpreted in the courts.

I release all the stupid stuff I do under free licenses because copyright lasts _too long_.
I'd be fine with normal copyright if it only lasted 25 years like it originally did.

Reply Score: 1

Use Blender.
by denysonique on Tue 14th Sep 2010 17:04 UTC
denysonique
Member since:
2010-09-14

Why need to obey some EULA's when you have Blender 3D which is Free/Libre software licenced under GPL.

Reply Score: 1