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Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scan

From: David Kastrup
Subject: Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scandalous ruling)
Date: Wed, 08 Dec 2010 16:01:41 -0000
User-agent: Gnus/5.13 (Gnus v5.13) Emacs/24.0.50 (gnu/linux)

Alan Mackenzie <> writes:

> In gnu.misc.discuss David Kastrup <> wrote:
>> Red herring, since Autodesk did not complain about the physical copies
>> being reused (like broken into pieces and used in an artwork) but their
>> content being used in multiple installations while just a single
>> license had been granted, this license being used both as a
>> prerequisite for the upgraded installations as well as a recipient
>> license for the resold physical media.
> This horrendous twist in the USA courts' knickers arises from a failure
> correctly to identify the essence of the original transaction.  When somebody
> buys a shrink-wrapped piece of software, he is essentially buying a
> license to use it on a single PC.  He is NOT buying the medium carrying
> the software, he is NOT "buying a copy" of the software (whatever that
> might mean) except incidentally.
> As the owner of this license, the first purchaser should be free to sell
> it.  The terms of the license would, of course, automatically apply to
> the new owner.
> When USA lawmakers start understanding this, then the ludicrous outcomes
> of cases such as this will cease.

I don't see this particular case's outcome as ludicrous.  The defendant
bought an upgrade (at reduced price) that required the previous purchase
of a full license.  That you can't sell the media and full license and
still retain the upgrade with full functionality, seems rather normal to
me.  And I don't see how this even touches first sales right, unless you
buy a new _full_ copy without restraints.

Things are different if the upgrade license/purchase requires you to
show possession of a full copy at the time of purchase, but does not
require you to maintain that possession.

Such an oversight is quite conceivable.  But it did not happen in this
case AFAICT.

David Kastrup

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