Re: Open source - Free software

[Alexander Terekhov]

David Kastrup wrote:
[...]
> Software is not sold.  

http://cryptome.org/softman-v-adobe.htm

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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). It is well-settled that in determining whether a transaction
is a sale, a lease, or a license, courts look to the economic realities
of the exchange. Microsoft Corp. v. DAK Indus., 66 F.3d 1091 (9th Cir.
1995); United States v. Wise, 550 F.2d 1180 (9th Cir. 1977). In DAK,
Microsoft and DAK entered into a license agreement granting DAK certain
nonexclusive license rights to Microsoft's computer software. The
agreement provided that DAK would pay a royalty rate per copy of
computer software that it distributed. Subsequently, DAK filed a
petition for bankruptcy, and failed to pay the final two out of a total
of five installments. Microsoft filed a motion for the payment of an
administrative expense, claiming that it should be compensated for DAK's
post-bankruptcy petition use of the license agreement. On appeal, the
Ninth Circuit held that the economic realities of the agreement
indicated that it was a sale, not a license to use. Thus, Microsoft
simply held an unsecured claim and not an administrative expense. The
court found that the agreement was best characterized as a lump sum sale
of software units to DAK
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http://www.law.berkeley.edu/journals/btlj/articles/vol13/Nimmer/html/text.html#B21

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Similarly, a software vendor may contractually allow use by a single
user of a copy of "Windows NT" and, in a separate transaction, deliver a
copy of "Windows NT" under a license allowing the licensee to use the
software in a 10,000 site network or allowing it to make 20,000
additional copies for commercial distribution. In the latter case, the
provider, in effect, transferred 20,000 copies in the single tangible
copy.21
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http://www.law.berkeley.edu/journals/btlj/articles/vol13/Nimmer/html/note.html#N21

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21. See Microsoft Corp. v. DAK Indus., Inc., 66 F.3d 1091, 1095 (9th
Cir. 1995) (concluding that a distribution agreement involving a lump
sum payment and delivery of a master disk is more like a sale of the
right to make the stated number of copies
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regards,
alexander.