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

From: Alexander Terekhov
Subject: Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scandalous ruling)
Date: Thu, 25 Nov 2010 18:44:24 +0100

"If you live in the 9th Circuit, you don’t own your software anymore.

Posted by Cyberbear on November 12, 2010 in Computer Software 

Posted by: David Brookshire

We’re all guilty of it. Tossing aside that thick packet that accompanied
our new software. Clicking ‘I Agree’ to 50 pages of contract that we
scrolled past or didn’t even bother clicking through to read. How could
anyone be bound by a contract for a product they already paid for? These
End-User License Agreements (or as the trade calls them, EULA’s) have
frequently been ruled or legislated unenforceable for being
unconscionable, in that they force a conditional contract upon the
consumer after they think they’ve purchased a product. After all, few
consumers read the terms and realize that the software they purchased is
in fact being leased to them.

But the Court of Appeals for the Ninth Circuit took a different tack
recently in Vernor v. Autodesk holding that a man who purchased old used
copies of Autodesk from an office company was infringing copyright by
selling them on eBay. The rationale was that the office company had not
actually purchased the software from Autodesk, they had only leased it,
and therefore could not sell the software to Vernor. Why is this an
important (and awful) decision? Because the test the Ninth Circuit set
out to determine if a EULA binds you and restricts your use of the
product is:

“First, we consider whether the copyright owner specifies that a user is
granted a license. Second, we consider whether the copyright owner
significantly restricts the user’s ability to transfer the software.
Finally, we consider whether the copyright owner imposes notable use

...or as I like to read it:

1. The company says so
2. The company says so
3. The company says so

It doesn’t matter that the EULA was 90 pages of indecipherable print
that you clicked past without a glance. It doesn’t matter that the
contract wasn’t seen until after you purchased the product. It doesn’t
matter that you might have actually never seen the contract all (how
many times have you ignored the “Click to see the Terms of Service” link
before clicking “I Agree”). All that matters is what the company says.
In fact the ruling seems to imply that companies need to err on the side
of being overly restrictive in their licenses so they can make sure they
meet the “significantly restrictive” requirements.”

Effectively this ruling allows software companies to get all the
protections of copyright law while preventing their consumers from
enjoying any of their rights under the statute.

In the long run I think this is poor policy on the part of companies.
Previously you had three main markets: those that purchased new copies
of the software through you, those that purchased older versions through
the secondary market, and those that pirated the software. While
software companies often can convert users of the secondary market to
new purchasers by including new features, there is no such effective
enticement for software pirates who can get even the newest software for
free. In eliminating the secondary market you are eliminating any
customer who can’t afford your products new. These customers will either
pirate the software, making them less likely to purchase it at any point
later, or they will find a cheaper competitor’s product. Either way,
Autodesk seems to be hurting themselves in the long run.

So if you are lucky enough to live in the jurisdiction of Ninth Circuit,
congratulations; you no longer own the software you are purchasing. Just
remember that the next time you fork over $600 for a copy of Rosetta
Stone you won’t be getting any of that back by selling it used.

 ... other posts by Cyberbear

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(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.)

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