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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by alcibiades on Fri 2nd Oct 2009 08:13 UTC
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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.

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