Re: [!NEWS] The GNUtards Must Be Crazy

[Alexander Terekhov]

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.)