On Apr 7, 2011, at 4:45 PM, Dan wrote:
But if the disc was *bundled* with a computer system when originally purchased then the license is NON-transferrable -- so the software and media must be sold WITH the computer system. Sites that permit the sale of such OEM softwares are doing so at their own legal risk with eye patch glued on.
I don't profess to be a lawyer, but the logical basis for this escapes me. If I own a car, and the engine came "bundled" with the car, I still "own" the engine, and if I want to remove the engine and sell it to a guy who needs an engine for his boat, and has the ability to use the engine from a car in a boat, this seems perfectly fine to me.
As I see it, when the computer and the software were "bundled", you paid a "bundled" price, and part of that money was used to buy the software. The computer would be less valuable without the software, so this means the software adds value, and some part of the bundled payment "bought" that software.
If you assume the opposite, that you have no ownership rights to the software on the physical disc, then you establish a precedent that a physical object has no value. I can see clearly why Apple is rushing so fast to the App Store format, and doing away with physical discs because I would agree that ownership of bits makes no sense, after all, bits are just a binary number, and the concept that people can "own" numbers makes zero sense to me. If ownership of numbers is legal, then I'd like to claim ownership of Pi, or E, or some other useful constant.
With physical objects, I believe that payment constitutes "ownership" and once you own the item, you're free to sell it irrespective of what the creator of the physical object says because their rights to that physical object ended when they accepted payment for the object. It was their choice, and in this case Apple chose to accept payment in exchange for providing a physical disc with software (a number) encoded onto it, and in my view, the only logical conclusion is that Apple has NO RIGHTS to any physical discs they have sold, bundled or otherwise. If the law is different, the law is WRONG, and needs to be changed.
I believe this was the exact subject of the lawsuit I cited. The company Autodesk claimed the software was a "license", while the eBay reseller claimed "ownership" of the physical discs. The court decided the reseller did in fact own the physical discs, and was free to resell them as he wished. Once the horse has left the barn, the owner of the barn has no say on where it runs, especially when the barn owner has ACCEPTED PAYMENT for the horse already.
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