Posted on 05/22/2008 1:21:52 PM PDT by antiRepublicrat
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.
I agree shrink wrap licensing should not be allowed (see other posts, this thread).
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.
2008 with Civil 3D
Started in 1988 Ver. 2.??, Damn I’m old.
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.
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?
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)?
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.
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.
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.
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.)
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.
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?
:::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.
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.
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.
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.
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.
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