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Federal Court Slaps Down Autodesk Arguments, Favors eBay Seller
AECNews ^ | May 21, 2008 | staff

Posted on 05/22/2008 1:21:52 PM PDT by antiRepublicrat

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To: Positive
I buy this software for a very low price after the original owner has had time to install it and of course make a reliable "backup" of the whole package. Now that I own the "original" can I sell it on eBay?

Your action is legal under first sale, but the prior owner has an illegal copy. Most large software apps today "activate", or make the current owner beam information about his machine and configuration to he company's server, to be used as validation for his license. If you sell the software, you ave to "deactivate" it before the next owner can activate it.

61 posted on 05/22/2008 9:40:55 PM PDT by BlazingArizona
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To: Comstock1

I agree shrink wrap licensing should not be allowed (see other posts, this thread).


62 posted on 05/23/2008 7:17:34 AM PDT by taxcontrol
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To: vpintheak

Sorry, but you are incorrect. Your starting assumption that the consumer is purchasing (ownership) of the software is incorrect. The consumer is renting the software. So lets ask your question under the correct interpretation of the agreement. Is it constitutional for a retailer and a consumer to agree to rent a product and further control of what the renter can do with the rental property? Absolutely, happens all the time.

The guy is trying to sell software he does not own and does not have any right to sell.

I agree shrink wrap licensing (i.e. you don’t get to see the agreement until you open the box and then it is too late.) should not be allowed.


63 posted on 05/23/2008 7:22:01 AM PDT by taxcontrol
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To: lesser_satan

2008 with Civil 3D

Started in 1988 Ver. 2.??, Damn I’m old.


64 posted on 05/23/2008 7:30:54 AM PDT by enraged
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To: messierhunter
I shouldn’t have to go hunting for a contract before I step in it like a bear trap.

The court's decision has an impact on all copyright and intellectual property law. While I do agree, that the particular term in question is distasteful, I do think consumers should be held responsible for knowing the terms of what the are buying. It's not like the terms are being kept secret - they are available.

I don't see this as any different from people complaining because they got stuck with mortgages they couldn't afford. They didn't read the contract, so it is their own fault.

65 posted on 05/28/2008 9:25:17 AM PDT by MEGoody (Ye shall know the truth, and the truth shall cause you to vote against the Democrats.)
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To: antiRepublicrat
No contract can violate the law.

That's different from saying it is unconstitutional. So again, can you help me understand what could be unconstitutional about a license agreement into which one has entered voluntarily?

66 posted on 05/28/2008 9:28:32 AM PDT by MEGoody (Ye shall know the truth, and the truth shall cause you to vote against the Democrats.)
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To: Mr. Quarterpanel
Well, for one thing, the license agreement is not on the outside of the box, and I challenge anyone to return a software title where the package has been opened.

So what part of the constitution does that violate (particularly since those license terms are available on most software publisher's websites or can be requested in advance of purchase)?

67 posted on 05/28/2008 9:29:59 AM PDT by MEGoody (Ye shall know the truth, and the truth shall cause you to vote against the Democrats.)
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To: MEGoody
That's different from saying it is unconstitutional.

The Constitution is the highest law.

Aside from that there is the legal concept of abuse of copyright. Copyright is a grant of certain limited rights, not complete power. Trying to enforce more rights than granted can end up with a copyright being judged unenforceable, effectively revoked. It's happened.

68 posted on 05/28/2008 10:38:16 AM PDT by antiRepublicrat
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To: MEGoody
That's different from saying it is unconstitutional. So again, can you help me understand what could be unconstitutional about a license agreement into which one has entered voluntarily?

Because, by entering into a copyright agreement with the US Government, the copyright holder gives up his rights to his product in exchange for a limited monopoly to his product guaranteed by the government.

When the copyright expires or if the copyright holder violates the terms of the limited agreement, the product goes into the public domain.

Like the other Imaginary Property trolls have said, "If you don't like the terms don't enter into the contract."

Only this applies to the copyright holder.

69 posted on 05/28/2008 11:10:39 AM PDT by Knitebane (Happily Microsoft free since 1999.)
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To: Knitebane
Because, by entering into a copyright agreement with the US Government, the copyright holder gives up his rights to his product in exchange for a limited monopoly to his product guaranteed by the government.

Firstly, can you show me where in the constitution it speaks of copyright law? Secondly, can you show me in the constitution or in copyright law where it states that the holder of the copyright gives us his/her rights to the product for any period of time?

70 posted on 05/28/2008 11:48:14 AM PDT by MEGoody (Ye shall know the truth, and the truth shall cause you to vote against the Democrats.)
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To: MEGoody
Firstly, can you show me where in the constitution it speaks of copyright law? Secondly, can you show me in the constitution or in copyright law where it states that the holder of the copyright gives us his/her rights to the product for any period of time?

Article I, Section 8, Clause 8:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

71 posted on 05/28/2008 11:56:23 AM PDT by Knitebane (Happily Microsoft free since 1999.)
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To: antiRepublicrat
The Constitution is the highest law.

Of course, but once more, how is the license in this case unconstitutional?

Aside from that there is the legal concept of abuse of copyright.

Agreed. But for decades, this particular term (however distasteful you or I might find it) was considered perfectly acceptable and not an abuse of copyright law. It seems this particular judge has a different take on the matter.

I'm quite sure AutoDesk will continue to fight this. It affects not only them, but every software company there is. (In the end, it might even impact some non-software copyrights.)

72 posted on 05/28/2008 12:00:13 PM PDT by MEGoody (Ye shall know the truth, and the truth shall cause you to vote against the Democrats.)
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To: MEGoody
"I don't see this as any different from people complaining because they got stuck with mortgages they couldn't afford. They didn't read the contract, so it is their own fault."

I strongly disagree. You don't agree to your mortgage contract sight-unseen by opening the door to your new house for the final inspection at closing. They present you the contract and you actually sign it. You are at least presented with the option of reading it before you agree to it. The fact that it's possible to ignore it and just sign it does not automatically make it an equivalent situation. Nowhere in a shrink wrap contract are you presented by the binding party with the terms before you end up agreeing to it unless you go out of your way to find the contract first.
73 posted on 05/28/2008 12:21:23 PM PDT by messierhunter
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To: MEGoody
Of course, but once more, how is the license in this case unconstitutional?

I don't see a strict constitutional case in this matter, just the constitutional intent of copyright.

Agreed. But for decades, this particular term (however distasteful you or I might find it) was considered perfectly acceptable and not an abuse of copyright law. It seems this particular judge has a different take on the matter.

I don't remember this particular term ever being in court, but lots of reaches of copyright have been thrown out over the years by establishing limits. Actual abuse of copyright claims are rare, although patent abuse cases are common. But they come from the same constitutional authority so there is cross-application of concepts.

affects not only them, but every software company there is. (In the end, it might even impact some non-software copyrights.)

I sure hope so. Abusive and over-reaching license terms have to stop.

74 posted on 05/28/2008 1:05:59 PM PDT by antiRepublicrat
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To: MEGoody
I do think consumers should be held responsible for knowing the terms of what the are buying.

Or doing. Did you know that you are under a license to tresspass every time you go into a Wal-Mart, subject to specific terms? Have you read that license?

75 posted on 05/28/2008 1:08:20 PM PDT by antiRepublicrat
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To: messierhunter
You don't agree to your mortgage contract sight-unseen by opening the door to your new house for the final inspection at closing.

:::sigh::: Once more. . .no one has to agree to shrink-wrap terms sight unseen before opening their box of software. They can see the terms on the publisher's website or request a copy.

76 posted on 05/28/2008 1:12:03 PM PDT by MEGoody (Ye shall know the truth, and the truth shall cause you to vote against the Democrats.)
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To: MEGoody

Once again, hosting the terms on your website is not a way of actively presenting it to the customer before they agree to your terms. There is no comparison between a shrink wrap contract and a mortgage. You can’t get a mortgage without seeing the contract, whether you choose to read it or not.


77 posted on 05/28/2008 1:25:42 PM PDT by messierhunter
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To: Knitebane
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

This neither indicates that the shrink-wrap terms are unconstitutional, nor indicates that the copyright holder gives us his/her rights to the product for a period of time upon granting of the copyright.

78 posted on 05/28/2008 1:30:24 PM PDT by MEGoody (Ye shall know the truth, and the truth shall cause you to vote against the Democrats.)
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To: messierhunter
Once again, hosting the terms on your website is not a way of actively presenting it to the customer before they agree to your terms.

I see. So you are saying that if someone is too lazy to read the terms, they should be excused from abiding by them.

The same can be said of those who didn't read their mortgage contracts.

That might be okay with you. As a contract manager, I'm not okay with that position.

79 posted on 05/28/2008 1:32:39 PM PDT by MEGoody (Ye shall know the truth, and the truth shall cause you to vote against the Democrats.)
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To: messierhunter
Once again, hosting the terms on your website is not a way of actively presenting it to the customer before they agree to your terms.

I see. So you are saying that if someone is too lazy to read the terms, they should be excused from abiding by them.

The same can be said of those who didn't read their mortgage contracts.

That might be okay with you. As a contract manager, I'm not okay with that position.

80 posted on 05/28/2008 1:32:40 PM PDT by MEGoody (Ye shall know the truth, and the truth shall cause you to vote against the Democrats.)
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