7 ms·

Do you own or "license" software? - important case tests industry model

55 points by grellas 16y ago

WiseWeasel 16y ago
You own a copy of the software, and when you install it, you are presented with limitations which, if you agree to them, are binding only in the context of using the software. Outside those boundaries, any limitations do not apply. You can restrict your users by making them agree that your software cannot be used for commercial purposes, for example, but you can't make them agree to terms that apply when they are not using the software, such as a restriction from reselling the installation discs after they have stopped using it. It's when they use the software after having resold the discs that they might be said to be infringing a usage contract.
- hga 16y ago
  A contract of adhesion, though: http://en.wikipedia.org/wiki/Standard_form_contract http://en.wikipedia.org/wiki/Standard_form_contract
DannoHung 16y ago
Non-transferable licenses should be made illegal.
- hga 16y ago
  If they're "established" through contracts of adhesion (http://en.wikipedia.org/wiki/Standard_form_contract http://en.wikipedia.org/wiki/Standard_form_contract) absolutely, and we're expecting/hoping the 9th will uphold the district's summary judgment, at least in principle (if they get into some of the "where do you draw the line" stuff, they might remand it to the district court for a finding of fact, they're only supposed to make findings of law). However, let's say I spend a month with an Oracle salesman and we cut a negotiated $$$ deal that's expressed in a normal contract; that's a very different thing from the sale of a shrink-rapped package like these AutoDesk copies. I don't find those unconscionable (http://en.wikipedia.org/wiki/Unconscionability http://en.wikipedia.org/wiki/Unconscionability).
  - Daniel_Newby 16y ago
    Indeed! The importance of this distinction is too often ignored in press articles. One complication is whether it is a shrink-wrap license bought in a store (therefore with reasonable opportunity to read the terms) or a shrink-wrap license bought by title/SKU# and delivered by mail. The former would appear to be more enforceable.
    - dhume 16y ago
      One complication is whether it is a shrink-wrap license bought in a store (therefore with reasonable opportunity to read the terms) or a shrink-wrap license bought by title/SKU# and delivered by mail. The former would appear to be more enforceable. In my experience, it's usually been the other way around. When I order online, I often get to read the license on the web site, whereas when I buy in a brick-and-mortar store, I cannot see the license terms without opening the package, which I am not allowed to do before buying it (hence the term "shrink-wrap license").
patio11 16y ago
Compelling reason to do SaaS #4972...
- WiseWeasel 16y ago
  Compelling reason to avoid SaaS #1.
  - pbiggar 16y ago
    This doesn't make sense. With SaaS, you don't possess any software, so how can you argue that you should have the ability to transfer it. What would you transfer? SaaS is also different because you rarely pay the large amounts which make it feel like you own software. You are merely renting it. You may as well argue that it bugs you to rent a house, since you can't sell it. Of course you can't sell it, you never bought it.
    - WiseWeasel 16y ago
      The problem is that the terms of use can change at any time. If I'm choosing infrastructure for my business, for example, I can't be sure I've got a handle on costs if I'm dependent on the availability of a bunch of SaaS services that can change their terms or go out of business at any time. If I use locally-controlled software instead, I can be assured that it will keep running as long as my server keeps running. The goal is to avoid points of failure that can bring your whole infrastructure down.
      - pbiggar 16y ago
        Sure, there are lots of reasons to avoid SaaS, that just wasn't one of them.
- zwieback 16y ago
  That was my first thought.
DanBlake 16y ago
The autodesk case is linked with both MDY vs Blizzard and UMG vs Augusto. Cliffnotes: Autodesk case is about this guy, vernor, who went around buying legit copies of autocad at tag sales and the like and reselling them on ebay. The autodesk license says you cant resell it. They sued vernor and lost, now its on appeal. UMG vs augusto is about how they sent out "promo" CD's that said "not for resale". Augusto did it anyways. MDY vs Blizzard is about how MDY made cheats for WoW. Blizzards TOS for WoW says that cheats are not allowed. WoW charges xx$ /month and is a continuing service, despite having a initial software. Anyways. I think its likely we will see the first sale doctrine applied for both autodesk and UMG. We will get a clear ruling that a EULA can not upset the rights of buying a product. If I buy a Ford Taurus, I can do whatever I want to that car and add any modification I want to it. Turbo chargers or extra wide tires. I can even throw a Ferrari logo on it. With that fact in mind, I think that the first 2 rulings will be for vernor and augusto. In regards to MDY- I believe the result will go to Blizzard. WoW users have to continue paying to use WoW and its evident they dont own it, but license it. The basics of this is : If it smells like you dont own the software, you likely dont. (ie- paying monthly or a primarily online service) If it smells like you DO own the software (IE- buying a copy of autodesk which you never have to pay for again and provides free updates (or no updates) then regardless of what the license says, you do own it.
- smallblacksun 16y ago
  "I can even throw a Ferrari logo on it." Ford couldn't stop you from doing that, but Ferrari could.
  - blabla_oblama 16y ago
    No I think neither can, but both can stop you from selling the result.
- mikeknoop 16y ago
  I agree with the concept of your breakdown for own vs. license. However in order for it to be legalized you would need to set the conditions for when a software "smells like you don't own" it. This is inherently large to do and leads to 10s of pages of legalese attempting to describe a simple idea.
ErrantX 16y ago
In my mind cases like this (even this case) represent the most important issue we need to fix (before any attempt is made on copyright/software patents) - or at least get drummed out of boundaries as "something we could sue for" I'm confident it will come out right, but sometimes you never can tell with these things :)
zwieback 16y ago
Seems to me that as long as the number of users per license/copy stays the same AutoDesk shouldn't have a case. The person taking the loss is whoever sold the copy for less than it's worth. Where I work expensive software like EE/CAD tools are either on a license server, node-locked or have a dongle. That makes things clean. The point about the academic discounts is a good one, though. Seems reasonable that those copies should not be resellable.
- _delirium 16y ago
  On the last point, is there a reason it should be different for software than books? Publishers can't put resale restrictions even on specially discounted books (e.g. professor-only copies of textbooks or something).
  - zwieback 16y ago
    Only in so far that academically discounted copies of AutoCAD or PhotoShop are valued much higher by the general public than college textbooks. Probably the best solution would be to not allow any resale restrictions and change the academic software model to one where you can get a temporary license that expires after a year or something similar.
    - brudgers 16y ago
      The Academic Copies of AutoCad print watermarks when the drawings are plotted. If entities created in an academic version are brought into the database of an existing drawing, the watermark also prints. In otherwords, the market value of academic versions is limited (though this was not the case 20 years ago). In addition, Autodesk typically sells subscriptions to its academic software, not licenses. Their arguement, does not reflect the facts as one might say.
  - dedward 16y ago
    No - but they could issue you a copy of a book with a negotiated agreement between the two of you that you would not copy and/or resell the book, and that it was for your use only - say to proofread a copy, or keep something secret. That can't happen simply by printing "not for resale" inside the book - but it can certainly happen during binding contract negotiation.
deleted 16y ago
[deleted]
mkramlich 16y ago
Like many controversial debates, there is no obviously right answer here. Ultimately it will be however we as a society decide how to treat it. (Well, indirectly through Congress and the Courts, and of course distorted through the lens of wealthy special interests and their lackeys.)

55 points by grellas 16y ago

You own a copy of the software, and when you install it, you are presented with limitations which, if you agree to them, are binding only in the context of using the software. Outside those boundaries, any limitations do not apply. You can restrict your users by making them agree that your software cannot be used for commercial purposes, for example, but you can't make them agree to terms that apply when they are not using the software, such as a restriction from reselling the installation discs after they have stopped using it. It's when they use the software after having resold the discs that they might be said to be infringing a usage contract.

hga 16y ago
A contract of adhesion, though: http://en.wikipedia.org/wiki/Standard_form_contract http://en.wikipedia.org/wiki/Standard_form_contract

DannoHung 16y ago

Non-transferable licenses should be made illegal.

hga 16y ago
If they're "established" through contracts of adhesion (http://en.wikipedia.org/wiki/Standard_form_contract http://en.wikipedia.org/wiki/Standard_form_contract) absolutely, and we're expecting/hoping the 9th will uphold the district's summary judgment, at least in principle (if they get into some of the "where do you draw the line" stuff, they might remand it to the district court for a finding of fact, they're only supposed to make findings of law). However, let's say I spend a month with an Oracle salesman and we cut a negotiated $$$ deal that's expressed in a normal contract; that's a very different thing from the sale of a shrink-rapped package like these AutoDesk copies. I don't find those unconscionable (http://en.wikipedia.org/wiki/Unconscionability http://en.wikipedia.org/wiki/Unconscionability).
- Daniel_Newby 16y ago
  Indeed! The importance of this distinction is too often ignored in press articles. One complication is whether it is a shrink-wrap license bought in a store (therefore with reasonable opportunity to read the terms) or a shrink-wrap license bought by title/SKU# and delivered by mail. The former would appear to be more enforceable.
  - dhume 16y ago
    One complication is whether it is a shrink-wrap license bought in a store (therefore with reasonable opportunity to read the terms) or a shrink-wrap license bought by title/SKU# and delivered by mail. The former would appear to be more enforceable. In my experience, it's usually been the other way around. When I order online, I often get to read the license on the web site, whereas when I buy in a brick-and-mortar store, I cannot see the license terms without opening the package, which I am not allowed to do before buying it (hence the term "shrink-wrap license").

patio11 16y ago

Compelling reason to do SaaS #4972...

WiseWeasel 16y ago
Compelling reason to avoid SaaS #1.
- pbiggar 16y ago
  This doesn't make sense. With SaaS, you don't possess any software, so how can you argue that you should have the ability to transfer it. What would you transfer? SaaS is also different because you rarely pay the large amounts which make it feel like you own software. You are merely renting it. You may as well argue that it bugs you to rent a house, since you can't sell it. Of course you can't sell it, you never bought it.
  - WiseWeasel 16y ago
    The problem is that the terms of use can change at any time. If I'm choosing infrastructure for my business, for example, I can't be sure I've got a handle on costs if I'm dependent on the availability of a bunch of SaaS services that can change their terms or go out of business at any time. If I use locally-controlled software instead, I can be assured that it will keep running as long as my server keeps running. The goal is to avoid points of failure that can bring your whole infrastructure down.
    - pbiggar 16y ago
      Sure, there are lots of reasons to avoid SaaS, that just wasn't one of them.
zwieback 16y ago
That was my first thought.

DanBlake 16y ago

The autodesk case is linked with both MDY vs Blizzard and UMG vs Augusto. Cliffnotes: Autodesk case is about this guy, vernor, who went around buying legit copies of autocad at tag sales and the like and reselling them on ebay. The autodesk license says you cant resell it. They sued vernor and lost, now its on appeal. UMG vs augusto is about how they sent out "promo" CD's that said "not for resale". Augusto did it anyways. MDY vs Blizzard is about how MDY made cheats for WoW. Blizzards TOS for WoW says that cheats are not allowed. WoW charges xx$ /month and is a continuing service, despite having a initial software. Anyways. I think its likely we will see the first sale doctrine applied for both autodesk and UMG. We will get a clear ruling that a EULA can not upset the rights of buying a product. If I buy a Ford Taurus, I can do whatever I want to that car and add any modification I want to it. Turbo chargers or extra wide tires. I can even throw a Ferrari logo on it. With that fact in mind, I think that the first 2 rulings will be for vernor and augusto. In regards to MDY- I believe the result will go to Blizzard. WoW users have to continue paying to use WoW and its evident they dont own it, but license it. The basics of this is : If it smells like you dont own the software, you likely dont. (ie- paying monthly or a primarily online service) If it smells like you DO own the software (IE- buying a copy of autodesk which you never have to pay for again and provides free updates (or no updates) then regardless of what the license says, you do own it.

smallblacksun 16y ago
"I can even throw a Ferrari logo on it." Ford couldn't stop you from doing that, but Ferrari could.
- blabla_oblama 16y ago
  No I think neither can, but both can stop you from selling the result.
mikeknoop 16y ago
I agree with the concept of your breakdown for own vs. license. However in order for it to be legalized you would need to set the conditions for when a software "smells like you don't own" it. This is inherently large to do and leads to 10s of pages of legalese attempting to describe a simple idea.

ErrantX 16y ago

In my mind cases like this (even this case) represent the most important issue we need to fix (before any attempt is made on copyright/software patents) - or at least get drummed out of boundaries as "something we could sue for" I'm confident it will come out right, but sometimes you never can tell with these things :)

zwieback 16y ago

Seems to me that as long as the number of users per license/copy stays the same AutoDesk shouldn't have a case. The person taking the loss is whoever sold the copy for less than it's worth. Where I work expensive software like EE/CAD tools are either on a license server, node-locked or have a dongle. That makes things clean. The point about the academic discounts is a good one, though. Seems reasonable that those copies should not be resellable.

_delirium 16y ago
On the last point, is there a reason it should be different for software than books? Publishers can't put resale restrictions even on specially discounted books (e.g. professor-only copies of textbooks or something).
- zwieback 16y ago
  Only in so far that academically discounted copies of AutoCAD or PhotoShop are valued much higher by the general public than college textbooks. Probably the best solution would be to not allow any resale restrictions and change the academic software model to one where you can get a temporary license that expires after a year or something similar.
  - brudgers 16y ago
    The Academic Copies of AutoCad print watermarks when the drawings are plotted. If entities created in an academic version are brought into the database of an existing drawing, the watermark also prints. In otherwords, the market value of academic versions is limited (though this was not the case 20 years ago). In addition, Autodesk typically sells subscriptions to its academic software, not licenses. Their arguement, does not reflect the facts as one might say.
- dedward 16y ago
  No - but they could issue you a copy of a book with a negotiated agreement between the two of you that you would not copy and/or resell the book, and that it was for your use only - say to proofread a copy, or keep something secret. That can't happen simply by printing "not for resale" inside the book - but it can certainly happen during binding contract negotiation.

deleted 16y ago

[deleted]

mkramlich 16y ago

Like many controversial debates, there is no obviously right answer here. Ultimately it will be however we as a society decide how to treat it. (Well, indirectly through Congress and the Courts, and of course distorted through the lens of wealthy special interests and their lackeys.)