On 09/23/2012 12:42 PM, Celejar wrote:
On Thu, 20 Sep 2012 11:57:35 +0300 Andrei POPESCU <andreimpope...@gmail.com>
wrote:
On Jo, 20 sep 12, 06:31:52, lee wrote:
Why not? I haven't signed any agreement with them.
You agreed to the EULA on install or first boot, same thing.
Additionally, IIUC, Microsoft retains copyright, and only grants the OEM and
you various rights to use and distribute the software. You, the end user, are
granted by the OEM (in accordance with a right Microsoft has granted *it*)
the right to use the software,
Why do you need to be granted that right?
What reserves the "right to use" to Microsoft and its grantees? Copyright
doesn't, as far as I can tell; copyright just reserves the right to create
copies (and/or authorize the creation of the same), not any rights relating to
the actual *use* of an already-created copy. (Aside from the very limited areas
of "public performance" and "public display".)
The only potential angle I can see is the fact that, in the case of software,
you actually do have to copy it (at least into RAM) to be able to use it. I
personally think that that's a flaw in the design of copyright law - one rooted
in the fact that software as we now know it hadn't remotely been thought of when
copyright was being invented, one which is being abused to extend the monopoly
granted by copyright into areas which it was never intended to cover, and one
which therefore badly needs to be closed.
As far as I can tell, the entire "right to use" part of the EULA is essentially
a whole-cloth power grab on the part of the people who invent such EULAs, with
no real basis in the underlying monopolies granted by e.g. copyright law.
but not to resell it (except as part of the sale of the entire computer). You
therefore simply have no right to resell it, and any customer of yours has
acquires no right to use it.
Why not? The right to resell is long-established, as part of the doctrine of
first sale; as long as selling it doesn't involve creating an additional copy,
copyright itself does not AFAIK grant any authority to restrict sale.
Unless the grant of monopoly of distribution would cover it, but again, I think
the doctrine of first sale has long established (at least in the US) that that
monopoly doesn't extend to resale.
The only possible argument I can think of is the standard "it's not sold, it's
licensed" line of reasoning, which I think is purely and entirely a power grab -
an attempt to get around restrictions like the doctrine of first sale (as well
as to claim monopolies not granted by copyright or other IP law, e.g. the "use
rights" monopoly cited above). As such, I think that argument is bunk, and if
it's ever been accepted in court - which I think it unfortunately has - it needs
to be overturned.
(Shouldn't this discussion go off-list, if it's going to continue?)
--
The Wanderer
Warning: Simply because I argue an issue does not mean I agree with any
side of it.
Every time you let somebody set a limit they start moving it.
- LiveJournal user antonia_tiger
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