7 ms·

EU court rules software transfer is a sale (2012)

89 points by diimdeep 5y ago

StreamBright 5y ago
Good news? Is there any downsides?
- corty 5y ago
  Depends on your viewpoint. The current mess with software rentals and cloud-based everything is (among other reasons) a consequence of this. However, maybe people will see the light and go with free software instead (as in freedom, not beer, etc).
  - alias_neo 5y ago
    Free software is a great solution for software, the more people have that attitude and help fund, contribute to and drive the usage of free software, the better it becomes. Unfortunately, it doesn't necessarily work for "entertainment", because entertainment is consumable. You always want new music, new movies, new games, I don't think we've found a way to make those free (libre) yes.
  - bluecalm 5y ago
    To start developing free software you need to be in already pretty good position financially or in privileged one where someone else pays your bills no matter what you do (some academics are in the position). For me if only free software was the choices I would be first forced to go work for some evil corp to make money and then maybe start my project at some point having much less time and energy. Making something a lot of people want and charging them for it is an awesome feature of copyright law. I don't want it to go away.
- Felk 5y ago
  Note that this is from 2012
  - diimdeep 5y ago
    Yes, this is most recent information that I have found https://www.itassetmanagement.net/2016/10/31/secondary-software-2016/ https://www.itassetmanagement.net/2016/10/31/secondary-softw...
- nske 5y ago
  Old news but definitely good. No downsides that I can see for the consumers. Sadly we have since started seeing all big companies move to a SAAS subscription-based model so in practice it seems to become less relevant with time as it's only meaningful on software under perpetual licenses. But at least Windows Server is still a big one that can save a lot of money -and that can also help struggling/downsizing companies by allowing them to sell licenses they no longer need.
octopoc 5y ago
Seems like a very practical approach to the problem. If this legal framework is enforced, then here's what will probably happen: - Big name software vendors will accelerate replacing one-time purchases with subscriptions - Many small name software vendors will allow users to resell their software, and raise prices to compensate - Special pricing e.g. for students will go away - Code that checks for valid license keys will still be used to ensure that people aren't making new copies of the software and selling them - The Appstore model will eventually have to change so that people can resell the apps they purchased
- corty 5y ago
  > - The Appstore model will eventually have to change so that people can resell the apps they purchased Unfortunately, courts have upheld the special protections that DRM measures are afforded. So while you may in theory be able to resell software, DRM may still prevent you from making use of that software. Afaik that is unfortunately still legal.
  - Silhouette 5y ago
    Just to be clear, the courts in these parts don't have any choice about that. If statute law provides for those protections, the courts must decide cases accordingly (unless, for example, they are found to conflict with some sort of human rights law that has priority). What is particularly unfortunate in these cases is that a lot of the worst copyright-related requirements aren't even set by national governments (or other quasi-democratic bodies like the EU) but rather in the back rooms of international conferences where there is then a big vote on some big international agreement that includes them. Then everyone gets to make a DMCA or EUCD or other local equivalent that does nasty things like adding DRM protections that effectively nullify half of the copyright bargain, and they can mutter something about "international law" or "treaty obligations" and point the finger at some nebulous, unaccountable international diplomacy exercise to deflect the blame.
- badsectoracula 5y ago
  I doubt this will actually happen because of such ruling - not that it wont happen, but at most said ruling will be the excuse, not the reason (reason being plain old greed). It is like the false dichotomy between paying for software vs paying with your data: developers can simply do both (and many are doing both). Or, in games, the idea that DLCs, microtransactions, etc are "necessary" due to the high costs of development when in reality this is just an excuse and they only exist because they provide extra money and the companies can get away with it. So similarly to the above, subscriptions, higher prices, etc will happen not because the developers have to use them but because they are simply more profitable and since a response like "we did it because we wanted more money" isn't exactly PR friendly, they'll just put the blame in the vague and far away direction of EU and other similar scapegoats.
contravariant 5y ago
Great, now if we could also agree that people are allowed to sell their ebooks then that'd be amazing.
- tomcam 5y ago
  And music, and movies. I love the idea, but how do you manage this without some form of intrusive DRM or fingerprinting of machines combined with DRM?
  - contravariant 5y ago
    Watermarks seem the least intrusive solution. You can go a bit too far with these kinds of things though. Petty theft remains petty theft, even if it's digital, and isn't really the kind of thing that warrants intrusive surveillance.
  - Shorel 5y ago
    Blockchain!
- gt565k 5y ago
  NFTs to the rescue? Maybe blockchain can make digital goods be transferable.
  - deleted 5y ago
    [deleted]
- BlueTemplar 5y ago
  That's a recipe for more DRM, not less
  - contravariant 5y ago
    Sacrificing rights to avoid DRM would be winning the battle but losing the war IMHO.
toxik 5y ago
So it has been nine years and still I cannot resell basically any software I buy. Seems fairly toothless to me.
- nolok 5y ago
  Have you taken to (small) court any platform that refuses you that resale ? Probably not, can't bother / don't have the time nor money / ... Neither have I, just to be clear. That's why these cases end up being solved once consumer associations go to court in the name of their members. Eg UFC Que Choisir went against steam and won in the first court here in France, it was posted on HN a few months back. Now it needs to go all the way to a final decision. If you're wondering "what can I do", either take them to court, or donate to your local consumer association and make sure your issues are known and heard by them.
  - varispeed 5y ago
    > If you're wondering "what can I do", either take them to court, or donate to your local consumer association and make sure your issues are known and heard by them. Which is precisely what makes it toothless and a waste of tax payer money. If it costs impractical amount of time and money to assert your right, then does that right actually exist?
    - nolok 5y ago
      In France a small claims request is free (a couple forms to fill), do not require a lawyer and you have virtually no need to go to court. Small claims court are also pretty fast, though in that specific case it's pretty much a given that it would be appealed and escalated to higher court on the first such trial. It does NOT costs impractical amount of time and money to assert your right. It's simply that EU citizen are much less used to go to court over what they consider trivial things, eg for a 20€ steam game.
      - varispeed 5y ago
        The thing is that citizens shouldn't have to be doing any of it. > It's simply that EU citizen are much less used to go to court over what they consider trivial things, eg for a 20€ steam game. If it takes few hours to find out where to lodge the case, fill the forms and all that then be anxious about the outcome for considerable amount of time, this is already way more expensive than 20€ even if the request itself is free. Even if you win, you'll lose. Instead of sitting on their bottoms, the civil servants should be actively going after companies to make sure they are acting lawfully. I think much more sensible would be a complaint system that would trigger an investigation into a particular company and then solving it for all users instead of clogging the courts with individual claims that could go on forever (as in thousands customers lodging thousands requests for the same thing).
phkahler 5y ago
I've always wanted to see someone challenge the EULA concept in court by saying "Mr. Gates, can Microsoft name all the people it has 'license agreements' with? Do you know for example weather you have licensed software to Judge so-and-so here?" I personally reject the license and install anyway. The only thing that says I can't do that is the license, so if I don't agree with it, then it doesn't apply. Right? No actually I've stopped doing that and switched to Free Software completely - no restrictions imposed by the ELUA there.
- StavrosK 5y ago
  That's an interesting thought. What would happen in court if you went with that? "The license said to only install if you accept the license, but since I reject the license, I'm not bound by its contents, so I installed even though I didn't accept it".
  - bomdo 5y ago
    I would assume this falls under Severability [1]. In most cases, the button you click on literally says "I accept", which the corporate lawyer would interpret in a similar way to signing a contract in full. In other words, if I click "send" on my resignation email to my employer, but later argue in court that I totally didn't mean to actually resign, but only to check if my email program works, I may have a challenging case. [1] https://en.wikipedia.org/wiki/Severability https://en.wikipedia.org/wiki/Severability
    - TheCoelacanth 5y ago
      How do they know that I didn't patch the binary to replace "I accept" with "I reject"?
  - dragonwriter 5y ago
    > That's an interesting thought. What would happen in court if you went with that? "The license said to only install if you accept the license, but since I reject the license, I'm not bound by its contents, so I installed even though I didn't accept it". The license is what gives you legal permission to make copies in the process of installation; copying is otherwise an exclusive right of the copyright owner. So that’s very much an “if you win the argument on rejecting the license, you still lose” situation.

89 points by diimdeep 5y ago

StreamBright 5y ago

Good news? Is there any downsides?

corty 5y ago
Depends on your viewpoint. The current mess with software rentals and cloud-based everything is (among other reasons) a consequence of this. However, maybe people will see the light and go with free software instead (as in freedom, not beer, etc).
- alias_neo 5y ago
  Free software is a great solution for software, the more people have that attitude and help fund, contribute to and drive the usage of free software, the better it becomes. Unfortunately, it doesn't necessarily work for "entertainment", because entertainment is consumable. You always want new music, new movies, new games, I don't think we've found a way to make those free (libre) yes.
- bluecalm 5y ago
  To start developing free software you need to be in already pretty good position financially or in privileged one where someone else pays your bills no matter what you do (some academics are in the position). For me if only free software was the choices I would be first forced to go work for some evil corp to make money and then maybe start my project at some point having much less time and energy. Making something a lot of people want and charging them for it is an awesome feature of copyright law. I don't want it to go away.
Felk 5y ago
Note that this is from 2012
- diimdeep 5y ago
  Yes, this is most recent information that I have found https://www.itassetmanagement.net/2016/10/31/secondary-software-2016/ https://www.itassetmanagement.net/2016/10/31/secondary-softw...
nske 5y ago
Old news but definitely good. No downsides that I can see for the consumers. Sadly we have since started seeing all big companies move to a SAAS subscription-based model so in practice it seems to become less relevant with time as it's only meaningful on software under perpetual licenses. But at least Windows Server is still a big one that can save a lot of money -and that can also help struggling/downsizing companies by allowing them to sell licenses they no longer need.

octopoc 5y ago

Seems like a very practical approach to the problem. If this legal framework is enforced, then here's what will probably happen: - Big name software vendors will accelerate replacing one-time purchases with subscriptions - Many small name software vendors will allow users to resell their software, and raise prices to compensate - Special pricing e.g. for students will go away - Code that checks for valid license keys will still be used to ensure that people aren't making new copies of the software and selling them - The Appstore model will eventually have to change so that people can resell the apps they purchased

corty 5y ago
> - The Appstore model will eventually have to change so that people can resell the apps they purchased Unfortunately, courts have upheld the special protections that DRM measures are afforded. So while you may in theory be able to resell software, DRM may still prevent you from making use of that software. Afaik that is unfortunately still legal.
- Silhouette 5y ago
  Just to be clear, the courts in these parts don't have any choice about that. If statute law provides for those protections, the courts must decide cases accordingly (unless, for example, they are found to conflict with some sort of human rights law that has priority). What is particularly unfortunate in these cases is that a lot of the worst copyright-related requirements aren't even set by national governments (or other quasi-democratic bodies like the EU) but rather in the back rooms of international conferences where there is then a big vote on some big international agreement that includes them. Then everyone gets to make a DMCA or EUCD or other local equivalent that does nasty things like adding DRM protections that effectively nullify half of the copyright bargain, and they can mutter something about "international law" or "treaty obligations" and point the finger at some nebulous, unaccountable international diplomacy exercise to deflect the blame.
badsectoracula 5y ago
I doubt this will actually happen because of such ruling - not that it wont happen, but at most said ruling will be the excuse, not the reason (reason being plain old greed). It is like the false dichotomy between paying for software vs paying with your data: developers can simply do both (and many are doing both). Or, in games, the idea that DLCs, microtransactions, etc are "necessary" due to the high costs of development when in reality this is just an excuse and they only exist because they provide extra money and the companies can get away with it. So similarly to the above, subscriptions, higher prices, etc will happen not because the developers have to use them but because they are simply more profitable and since a response like "we did it because we wanted more money" isn't exactly PR friendly, they'll just put the blame in the vague and far away direction of EU and other similar scapegoats.

contravariant 5y ago

Great, now if we could also agree that people are allowed to sell their ebooks then that'd be amazing.

tomcam 5y ago
And music, and movies. I love the idea, but how do you manage this without some form of intrusive DRM or fingerprinting of machines combined with DRM?
- contravariant 5y ago
  Watermarks seem the least intrusive solution. You can go a bit too far with these kinds of things though. Petty theft remains petty theft, even if it's digital, and isn't really the kind of thing that warrants intrusive surveillance.
- Shorel 5y ago
  Blockchain!
gt565k 5y ago
NFTs to the rescue? Maybe blockchain can make digital goods be transferable.
- deleted 5y ago
  [deleted]
BlueTemplar 5y ago
That's a recipe for more DRM, not less
- contravariant 5y ago
  Sacrificing rights to avoid DRM would be winning the battle but losing the war IMHO.

toxik 5y ago

So it has been nine years and still I cannot resell basically any software I buy. Seems fairly toothless to me.

nolok 5y ago
Have you taken to (small) court any platform that refuses you that resale ? Probably not, can't bother / don't have the time nor money / ... Neither have I, just to be clear. That's why these cases end up being solved once consumer associations go to court in the name of their members. Eg UFC Que Choisir went against steam and won in the first court here in France, it was posted on HN a few months back. Now it needs to go all the way to a final decision. If you're wondering "what can I do", either take them to court, or donate to your local consumer association and make sure your issues are known and heard by them.
- varispeed 5y ago
  > If you're wondering "what can I do", either take them to court, or donate to your local consumer association and make sure your issues are known and heard by them. Which is precisely what makes it toothless and a waste of tax payer money. If it costs impractical amount of time and money to assert your right, then does that right actually exist?
  - nolok 5y ago
    In France a small claims request is free (a couple forms to fill), do not require a lawyer and you have virtually no need to go to court. Small claims court are also pretty fast, though in that specific case it's pretty much a given that it would be appealed and escalated to higher court on the first such trial. It does NOT costs impractical amount of time and money to assert your right. It's simply that EU citizen are much less used to go to court over what they consider trivial things, eg for a 20€ steam game.
    - varispeed 5y ago
      The thing is that citizens shouldn't have to be doing any of it. > It's simply that EU citizen are much less used to go to court over what they consider trivial things, eg for a 20€ steam game. If it takes few hours to find out where to lodge the case, fill the forms and all that then be anxious about the outcome for considerable amount of time, this is already way more expensive than 20€ even if the request itself is free. Even if you win, you'll lose. Instead of sitting on their bottoms, the civil servants should be actively going after companies to make sure they are acting lawfully. I think much more sensible would be a complaint system that would trigger an investigation into a particular company and then solving it for all users instead of clogging the courts with individual claims that could go on forever (as in thousands customers lodging thousands requests for the same thing).

phkahler 5y ago

I've always wanted to see someone challenge the EULA concept in court by saying "Mr. Gates, can Microsoft name all the people it has 'license agreements' with? Do you know for example weather you have licensed software to Judge so-and-so here?" I personally reject the license and install anyway. The only thing that says I can't do that is the license, so if I don't agree with it, then it doesn't apply. Right? No actually I've stopped doing that and switched to Free Software completely - no restrictions imposed by the ELUA there.

StavrosK 5y ago
That's an interesting thought. What would happen in court if you went with that? "The license said to only install if you accept the license, but since I reject the license, I'm not bound by its contents, so I installed even though I didn't accept it".
- bomdo 5y ago
  I would assume this falls under Severability [1]. In most cases, the button you click on literally says "I accept", which the corporate lawyer would interpret in a similar way to signing a contract in full. In other words, if I click "send" on my resignation email to my employer, but later argue in court that I totally didn't mean to actually resign, but only to check if my email program works, I may have a challenging case. [1] https://en.wikipedia.org/wiki/Severability https://en.wikipedia.org/wiki/Severability
  - TheCoelacanth 5y ago
    How do they know that I didn't patch the binary to replace "I accept" with "I reject"?
- dragonwriter 5y ago
  > That's an interesting thought. What would happen in court if you went with that? "The license said to only install if you accept the license, but since I reject the license, I'm not bound by its contents, so I installed even though I didn't accept it". The license is what gives you legal permission to make copies in the process of installation; copying is otherwise an exclusive right of the copyright owner. So that’s very much an “if you win the argument on rejecting the license, you still lose” situation.