Re: [dvd-discuss] Interesting 1st sale-shrinkwrap-EULA-(c) infringementcase

[Bryan Taylor <bryan_w_taylor(at)yahoo.com>]

--- Noah silva <nsilva@atari-source.com> wrote:
> So let me be stupid here and ask...  What happens when someone who wants
> to do something against (GPL, BSD Lisence, MPL, SISSL, LGPL, etc.) claims
> he isn't bound by the lisence because he has "first sale" (or first
> gift?).  

First sale doesn't provide the things that those licences do. Copyright
reserves some rights to the copyright holder and some to the "owner". The owner
still needs a licence to exercise rights that are reserved.

Basically, a licence can expand your rights, but in order to take anything away
it has to be a contract. For example, when you buy software, you do not get the
right to make derivitive works. The GPL is the only thing that gives you that
right, so if you don't accept it, then nothing else grants you that right and
you infringe the copyright if you do it. 

This case says specifically that it did not reach the question of whether
shrinkwrap contracts were enforcable. Here there was no question that the EULA
was never accepted (the software was never used, it was resold), so as soon as
Softman was declared to be an "owner", they have certain rights even if no
licence exists. 

Software companies generally say that if you don't accept the EULA, then you
have no right to use the software. There argument is based on the rejected idea
that the purchaser is not the "owner" so you must have the licence. They flip
this around and say by using the software, you are either infringing their
copyright or that you have accepted the contract terms.

If this case holds, I believe it will cut mandatory EULA enforcability off at
the knees. Since the transaction that brings the software to the end user is a
"sale", 17 USC 117 gives the "owner" the right to make an "adaption" for use in
a machine. Thus the contract that the EULA purports to offer is a bunch of
restrictions in exchange for something you already have. Contract law depends
on two things: assent and consideration. Consideration means each side gives
something to the other. If you already own the software, the licence doesn't
give you anything because you can already use the software by 17 USC 117, so
there is no contract. 

The assent issue has been hotly debated, but may be irrelevent. Many courts
have asked whether a clickwrap actually is "assent" sufficient to enter into a
contract. Most have ruled that it is an attempt to modify the contract of sale,
and under the Uniform Commericial Code requires a documented assent. A few
courts have said that it is part of the original "money now, terms later"
agreement, so that the act of continuing indicates assent. 


__________________________________________________
Do You Yahoo!?
Find a job, post your resume.
http://careers.yahoo.com