Hyman Rosen wrote: > > Rjack wrote: > > http://floridalawfirm.com/procdinc.html > Whether there are legal differences between "contracts" > and "licenses" (which may matter under the copyright > doctrine of first sale) is a subject for another day. > > Good. ...
Hyman, you are full of bullshit. The court's holding was: "Following the district court, we treat the licenses as ordinary contracts..." As for "Whether..." and "another day"... http://floridalawfirm.com/procdinc.html (ProCD, Inc. v. Zeidenberg, 86 F.3D 1447 (7th Cir., June 20, 1996)) June 20, 1996 June 20, 1996 June 20, 1996 http://www.cacd.uscourts.gov/cacd/RecentPubOp.nsf/0/1c0109b1a49387b288256b48007a04cd/$FILE/CV00-04161DDP.pdf (Motion filed on 8/27/01) 8/27/01 8/27/01 8/27/01 "In this case, Adobe alleges that by distributing unbundled Collections, SoftMan has exceeded the scope of the EULA and has infringed Adobe's copyrights, specifically Adobe's § 106 right to distribute and control distribution. SoftMan contends that the first sale doctrine allows for the resale of Adobe's Collection software. (1) First Sale Doctrine The "first sale" doctrine was first analyzed by the United States Supreme Court in Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908). [...] One significant effect of § 109(a) is to limit the exclusive right to distribute copies to their first voluntary disposition, and thus negate copyright owner control over further or "downstream" transfer to a third party. Quality King Distrib. v. L'Anza Research Int'l, Inc., 523 U.S. 135, 142-44 (1998). [...] Adobe argues that the first sale doctrine does not apply because Adobe does not sell or authorize any sale of its software. Adobe characterizes each transaction throughout the entire stream of commerce as a license.8 Adobe asserts that its license defines the relationship between Adobe and any third-party such that a breach of the license constitutes copyright infringement. This assertion is not accurate because copyright law in fact provides certain rights to owners of a particular copy. This grant of rights is independent from any purported grant of rights from Adobe. The Adobe license compels third-parties to relinquish rights that the third-parties enjoy under copyright law. [...] (2) Sale v. License (a) Historical Background Historically, the purpose of "licensing" computer program copy use was to employ contract terms to augment trade secret protection in order to protect against unauthorized copying at a time when, first, the existence of a copyright in computer programs was doubtful, and, later, when the extent to which copyright provided protection was uncertain. (See Rice Decl. ¶ 6.) Computer program copy use "licensing" continued after federal courts interpreted the Copyright Act to provide substantial protection for computer programs as literary works. (Id. at ¶ 7.) In Step-Saver Data Systems, Inc. v. Wise Technology, the Third Circuit examined the historical development of the use of licensing in the software industry and concluded that subsequent changes to the Copyright Act had rendered the need to characterize the transaction as a license "largely anachronistic." 939 F.2d 91, 96 n.7 (3d Cir. 1991).10 (b) Adobe Sells its Software A number of courts have held that the sale of software is the sale of a good within the meaning of Uniform Commercial Code. Advent Sys. Ltd. v. Unisys Corp., 925 F.2d 670, 676 (3d Cir. 1991); Step- Saver, 929 F.2d at 99-100; Downriver Internists v. Harris Corp., 929 F.2d 1147, 1150 (6th Cir. 1991). [...] Other courts have reached the same conclusion: software is sold and not licensed. [...] In the instant case, the Court finds that there is only assent on the part of the consumer, if at all, when the consumer loads the Adobe program and begins the installation process. It is undisputed that SoftMan has never attempted to load the software that it sells. Consequently, the Court finds that SoftMan is not subject to the Adobe EULA." See also 17 USC 117 http://www.law.cornell.edu/uscode/17/117.html and http://caselaw.lp.findlaw.com/data2/circs/2nd/039303p.pdf Decided: March 21, 2005 Decided: March 21, 2005 Decided: March 21, 2005 What it says is that even under contractual restrictions of statutory rights, 17 USC 117 bars cause of action for copyright infringement when "the party exercises sufficient incidents of ownership over a copy of the program to be sensibly considered the owner of the copy for purposes of § 117(a)." Same as with 17 USC 109. Now, that, of course, doesn't preclude cause of action for breach of contract... but see above regarding "the Court finds that SoftMan is not subject to the Adobe EULA." regards, alexander. -- http://gng.z505.com/index.htm (GNG is a derecursive recursive derecursion which pwns GNU since it can be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards too, whereas GNU cannot.) _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
