Posted on 09/13/2010 1:35:31 PM PDT by Still Thinking
The 9th Circuit of Appeals has reaffirmed the right of software companies to circumvent the first-sale doctrine by “licensing” rather then “selling” its products. The significance of this ruling cannot be overstated—it could singlehandedly destroy the used software market.
In 2005, one Timothy Vernor bought a sealed copy of AutoCAD Release 14 at a garage sale. In 2007, Vernor purchased four used copies of Release 14 from an authorized dealer, Cardwell/Thomas & Associates (CTA). He subsequently placed all but two copies on eBay, and in each instance, Autodesk appealed to the Digital Millennium Copyright Act (DMCA), alleging copyright infringement. In 2009, the courts ruled in Vernor’s favor, reaffirming his rights under the first-sale doctrine. But the 9th Circuit of Appeals recently overturned that decision—according to the ruling, the software license overrides the first-sale doctrine.
(Excerpt) Read more at ecnmag.com ...
The software industry is the only one I know of that knowingly ships faulty product and is exempted from liability lawsuits.
I skimmed the nutty 9th decision, and they are saying just that - whatever 1st Sale protection the seller enjoyed, is superceded by the software license - typically nutty by the 9th.
As I said to another poster, I really don't have an opinion on the merits of the case, but I was just trying to illustrate the difference software license and a implicit music/movie license that comes with a DVD/CD.
Okay, then they'll start licensing the software that runs the car...
Neither of those statements is true. Most industries knowingly ship faulty products, they just tend towards minor errors that they decided weren’t a big enough deal. And software companies aren’t exempt from liability lawsuits, they get sued all the time for the side effects of bugs, and tend to lose.
Sure, if you extrapolated that code from whatever PROM they were encoded on, then repurposed and resold just the software, I'm sure you would be sued, and I'm sure you'd lose.
But, the license for that particular software allows the user to resell it as part of the car it was initially installed on. This case isn't that.
In Texas, the pawn shop owners tried to put the used book/dvd/CD/record stores out of business (or at least in a sad state) by requiring them to “hold” all used merchandise for 30 days before stocking it on the shelves as inventory and checking with all police departments for reports of stolen items (also getting fingerprints and contact information on all persons selling used books, etc.).
> “If I buy software (that is, a license to use said software, if it is sold that way), I could copy the bits onto my hard drive or removable media, then try to sell the original media.
Once sold, I could keep using the software, using the copy I made. And now the person to whom I sold the original can use it (or repeat what I did).”
.
That is not what is in question here.
The software involved in this ruling was traded back to an AutoDesk licensed dealer, for value, in exchange for a new version, and then later resold by the dealer when it became more valuable.
The software I use by numerous name vendors all the way up to microsoft include a “dislaimer” that I am forced to check understaning that they do not take responsibility for their software impairing my computer and possibly causing it to crash.
Technically most of them already do. If you want to completely follow your license agreements any used computer you sell should be scrubbed of probably all your software.
Software in cars isn’t licensed, it’s part of the car.
Bit different than a liability lawsuit because a pentium chip had math errors.
Thanks. That is a BIG difference.
brings up the whole debate (that goes back to the 1980s if not older), “what’s a computer”.
There are people who access the code in those car computer chips. They have a status code when the car is having problems. Some don’t like the notion of HAVING to go to a mechanic to get the reading of that code.
But nevertheless, books are not limited to artistic endeavors. Plenty of books offer inventive ideas and are protected by copyright alone.
The funniest part is that this action was started by Autodesk. AutoCad is, has been, and probably always will be one of the most bug infested programs ever produced. My dealer came by once and noticed we were two versions behind, even though we got free updates as part of the support package. I told him the absolute truth - “we've learned how to deal with the bugs in the version we are using, and I haven't got the time to deal with all the bugs in the next versions. Maybe when we get three versions behind we'll take the plunge - but I'm going to put it off for as long as we can.”
They said the same thing of laserdiscs and compact discs.
If you’re happy with what a certain piece of software does then you don’t have to replace it. If you want more features than you would. A car however will not last forever.
Right. Well, it's not my assessment. It's the assessment of Congress that has enacted the relevant copyright statutes, and the judges that have written relevant case law opinions.
"Plenty of books offer inventive ideas and are protected by copyright alone"
A book has no functionality other than the function of communicating words, language. The code contained inside software actually does something - That "something" is what is inventive.
When you buy a car, you are buying - and titling - the car itself. The physical property (not intellectual property)
That dog don’t hunt. With that thinking, the car company removes the intellectual property used to design the car at the end of the assembly line?
This “license” thing is simply a “simple” way to prevent copying without going to the trouble of including protections. Rosetta Stone is a good example and they have spawned a lot of poor customer relations and a whole industry of figuring out how to use their product for free, simply because buyer’s feel rippied off not being able to re-sell (or even install it on another of THEIR computers without a gigantic hassle) when they are done with it.
Being able to re-sell a car increases its original value, otherwise it would only be worth its useful life to the original owner, which might be 1/2 the original sale price.
Yes, that's the one area in which mine is an apples to oranges comparison, and would be amply addressed by saying that if you want to sell the software, you may not keep a copy. There's no need to make the transaction this one-sided to address that one issue.
Disclaimers aren’t worth the electrons they’re displayed with. If you can prove their bugs harmed your computer or your business (ie cost you money) and you can muster up the lawyers (this can be the hard part if you’re going against MS, they have a lot of really good lawyers) you can sue them and beat them.
Here’s an exact conversation I’ve heard at my software company:
customer - every hour your software is down we’re losing a million dollars, do you understand what that means?
our guy - it means you can afford better lawyers than us, we’re working really hard on this issue and we’ll have a fix out to you as soon as possible
And that wasn’t even at the company I used to work at that had payroll running software. It can be very “exciting” to find out that if you don’t get a fix out to a customer by 8 AM they’ll be in violation of federal law and subject to massive fines, because we all know what direction feces rolls and who will actually be paying those fines.
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