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Re: [!NEWS] The GNUtards Must Be Crazy
From: |
Alexander Terekhov |
Subject: |
Re: [!NEWS] The GNUtards Must Be Crazy |
Date: |
Fri, 13 Mar 2009 22:05:25 +0100 |
Hyman Rosen wrote:
>
> Rjack wrote:
> > http://floridalawfirm.com/procdinc.html
> Whether there are legal differences between "contracts"
> and "licenses" (which may matter under the copyright
> doctrine of first sale) is a subject for another day.
>
> Good. ...
Hyman, you are full of bullshit.
The court's holding was:
"Following the district court, we treat the licenses as ordinary
contracts..."
As for "Whether..." and "another day"...
http://floridalawfirm.com/procdinc.html
(ProCD, Inc. v. Zeidenberg, 86 F.3D 1447 (7th Cir., June 20, 1996))
June 20, 1996
June 20, 1996
June 20, 1996
http://www.cacd.uscourts.gov/cacd/RecentPubOp.nsf/0/1c0109b1a49387b288256b48007a04cd/$FILE/CV00-04161DDP.pdf
(Motion filed on 8/27/01)
8/27/01
8/27/01
8/27/01
"In this case, Adobe alleges that by distributing unbundled
Collections, SoftMan has exceeded the scope of the EULA and has
infringed Adobe's copyrights, specifically Adobe's § 106 right to
distribute and control distribution. SoftMan contends that the
first sale doctrine allows for the resale of Adobe's Collection
software.
(1) First Sale Doctrine
The "first sale" doctrine was first analyzed by the United States
Supreme Court in Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908).
[...]
One significant effect of § 109(a) is to limit the exclusive right
to distribute copies to their first voluntary disposition, and thus
negate copyright owner control over further or "downstream" transfer
to a third party. Quality King Distrib. v. L'Anza Research Int'l,
Inc., 523 U.S. 135, 142-44 (1998).
[...]
Adobe argues that the first sale doctrine does not apply because
Adobe does not sell or authorize any sale of its software. Adobe
characterizes each transaction throughout the entire stream of
commerce as a license.8 Adobe asserts that its license defines the
relationship between Adobe and any third-party such that a breach
of the license constitutes copyright infringement. This assertion
is not accurate because copyright law in fact provides certain
rights to owners of a particular copy. This grant of rights is
independent from any purported grant of rights from Adobe. The
Adobe license compels third-parties to relinquish rights that the
third-parties enjoy under copyright law.
[...]
(2) Sale v. License
(a) Historical Background
Historically, the purpose of "licensing" computer program copy use
was to employ contract terms to augment trade secret protection in
order to protect against unauthorized copying at a time when, first,
the existence of a copyright in computer programs was doubtful, and,
later, when the extent to which copyright provided protection was
uncertain. (See Rice Decl. ¶ 6.) Computer program copy use
"licensing" continued after federal courts interpreted the
Copyright Act to provide substantial protection for computer
programs as literary works. (Id. at ¶ 7.) In Step-Saver Data
Systems, Inc. v. Wise Technology, the Third Circuit examined the
historical development of the use of licensing in the software
industry and concluded that subsequent changes to the Copyright Act
had rendered the need to characterize the transaction as a license
"largely anachronistic." 939 F.2d 91, 96 n.7 (3d Cir. 1991).10
(b) Adobe Sells its Software
A number of courts have held that the sale of software is the sale
of a good within the meaning of Uniform Commercial Code. Advent
Sys. Ltd. v. Unisys Corp., 925 F.2d 670, 676 (3d Cir. 1991); Step-
Saver, 929 F.2d at 99-100; Downriver Internists v. Harris Corp.,
929 F.2d 1147, 1150 (6th Cir. 1991).
[...]
Other courts have reached the same conclusion: software is sold
and not licensed.
[...]
In the instant case, the Court finds that there is only
assent on the part of the consumer, if at all, when the consumer
loads the Adobe program and begins the installation process. It is
undisputed that SoftMan has never attempted to load the software
that it sells. Consequently, the Court finds that SoftMan is not
subject to the Adobe EULA."
See also 17 USC 117 http://www.law.cornell.edu/uscode/17/117.html and
http://caselaw.lp.findlaw.com/data2/circs/2nd/039303p.pdf
Decided: March 21, 2005
Decided: March 21, 2005
Decided: March 21, 2005
What it says is that even under contractual restrictions of statutory
rights, 17 USC 117 bars cause of action for copyright infringement when
"the party exercises sufficient incidents of ownership over a copy of
the program to be sensibly considered the owner of the copy for purposes
of § 117(a)." Same as with 17 USC 109. Now, that, of course, doesn't
preclude cause of action for breach of contract... but see above
regarding "the Court finds that SoftMan is not subject to the Adobe
EULA."
regards,
alexander.
--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)
- Re: [!NEWS] The GNUtards Must Be Crazy, (continued)
- Re: [!NEWS] The GNUtards Must Be Crazy, Alexander Terekhov, 2009/03/13
- Re: [!NEWS] The GNUtards Must Be Crazy, Rjack, 2009/03/13
- Re: [!NEWS] The GNUtards Must Be Crazy, Hyman Rosen, 2009/03/13
- Re: [!NEWS] The GNUtards Must Be Crazy, Rjack, 2009/03/13
- Re: [!NEWS] The GNUtards Must Be Crazy, Doug Mentohl, 2009/03/13
- Re: [!NEWS] The GNUtards Must Be Crazy, Hyman Rosen, 2009/03/13
- Re: [!NEWS] The GNUtards Must Be Crazy, Rjack, 2009/03/13
- Re: [!NEWS] The GNUtards Must Be Crazy, Hyman Rosen, 2009/03/13
- Re: [!NEWS] The GNUtards Must Be Crazy,
Alexander Terekhov <=
- Re: [!NEWS] The GNUtards Must Be Crazy, Hyman Rosen, 2009/03/13
- Re: [!NEWS] The GNUtards Must Be Crazy, Alexander Terekhov, 2009/03/13
- Re: [!NEWS] The GNUtards Must Be Crazy, Hyman Rosen, 2009/03/13
- Re: [!NEWS] The GNUtards Must Be Crazy, Rjack, 2009/03/13
- Re: [!NEWS] The GNUtards Must Be Crazy, Hyman Rosen, 2009/03/13
- Re: [!NEWS] The GNUtards Must Be Crazy, Rjack, 2009/03/13
- Re: [!NEWS] The GNUtards Must Be Crazy, Hyman Rosen, 2009/03/13
- Re: [!NEWS] The GNUtards Must Be Crazy, Rjack, 2009/03/13
- Re: [!NEWS] The GNUtards Must Be Crazy, RonB, 2009/03/13
- Re: [!NEWS] The GNUtards Must Be Crazy, Alexander Terekhov, 2009/03/13