" ... You are bound by the same contract - not registering doesn't change that one bit, it just makes it harder to catch, and hastens the day when all software will have to be "activated" like XP and Office Win. ..."
Click-Thru contracts are so full of holes, legally, that no software vendor even wants to have them tested in court, for fear the whole thing is thrown out forever. The idea contradicts the very basics of contract law, and then goes further.
Adobe did try to test one aspect of the click-thru license in California (often cited as the jurisdiction of record, although again, one party insisting on the jurisdiction without regard to the facts of the transaction is pure science fiction and pure legal fiction).
In any case, what was happening is people were buying Adobe Suites, and selling the individual CDs, each with one full application and documentation, on eBay. It doesn't take a genius to figure out that 5 $800 apps will sell for more than one $1500 suite, and business was quite tidy for a while, till Adobe's lawyers came a'calling.
Adobe claimed the license prevented the purchaser from breaking it up and also they claimed the terms prevented resale of any kind without their express permission. Adobe lost on all counts, including all appeals, and it caused a bit of a stir for a while, before software vendors decided that to keep talking about it just encouraged people to obey the law and not the license, which was unenforceable. The fact is you can do anything you want with anything you buy, and that's an old principle of common law. So, you don't hear anything more about it.
Even more recently Microsoft attempted to prevent a business in the UK from selling used software, including thousands of copies of Office and XP, from a bankrupcty of a huge coorporation. Guess who the courts sided with.
The fact is a license that cannot be read or modified, attached inside a shrinkwrappped product that is non-refundable when opened is silly. Çontracts, even the "invisible" ones inside your next box of software, have to be reasonable and enforceable, whether the vendor likes it or not. And a click is not consent. At a minimum, you need to put an X somewhere, in ink by your own hand; even if that only happens once, when you agree to the click as a legal equivalent to a signature. Remember doing that at the lawyer's one day? I didn't think so.
The law in Canada expressly gives you the right to make a backup copy of any software product, for example. Any provision in any license that says you cannot is automatically null and void, as is every provision that is illegal under the law of the land where the software is sold and used. That doesn't prevent them from putting thousands of unenforceable clauses in there; but it does prevent them from being legally binding.
In other words, just 'cuz they say you can't, doesn't mean you can't, and just 'cuz the software company doesn't like what you do, doesn't mean they can stop you from doing it; even they have to obey the law and the law says you can sell any software you own.
Why do you think Microsoft wants to get businesses to rent software instead of buying it outright? Because a rental contract gets signed by someone, and it has an end date (and usually unlimited free upgrades and support during the relevant period). Not so with software you purchase. The items of value are yours to do with as you please, provided you obey copyright law which expressly allows resale of the original disks and documentation, provided you destroy any other copies you may have made (backup, on the HD when you install, etc).
There is a copyright on software (always has been) and that's the essence of what they use to insure you don't pirate (ie you must transfer the originals and delete any copies, due to copyright laws, not software licenses). Anyone remember people being arrested for violating a license? Didn't think so with that one either. They already have all the protection the law allows with copyright law, and they don't get any more, license or no license.
Aside from that, no one's gone to court because everyone's lawyers know the truth; the licenses are bogus and a judge will say so if you make him answer the question by suing someone.
Software vendors are doing the waiting game; the DMCA prevents defeating of encryption, DVDs can deliver large suites on one disk, online vendors make the user name part of the unlock code (like Graphic Converter), or by insisting the upgrade price is only eligible to a registered user (ie like Adobe), etc. As far as the specific application goes, they can't prevent anyone from reselling, buying or using it.
No-one's going to court over the EULA, because the vendor would lose, exposing the whole charade for what it is; smoke and mirrors.
Last edited by gordguide; Jan 6th, 2006 at 01:20 AM.
Yes, well summed up, what you say about common law rings true, that being the basis of our law, I hereby declare that all click licenses are hereby null and void!
That brings me to ask the question shouldn't copyright laws be brought into the 21st century? How is it that copyright seemingly goes on forever? I know this varies from country to country. People who invent physical gizmo's take out a patent and have about 20 years to make hay, not unreasonable IMHO, but copyright goes on forever"ish". Same sort of intellectual creation I think however they are not treated equally somehow.
iMac 27"- i7 X & XP Pro
I backed up today (LaCies' SilverKeeper)....have you?
...People who invent physical gizmo's take out a patent and have about 20 years to make hay, not unreasonable IMHO, but copyright goes on forever"ish". Same sort of intellectual creation I think however they are not treated equally somehow.
The US recently made a farce of copyright law by extending the term retroactively. It was, literally, Mickey Mouse legislation: Mickey was about to become public domain and Disney lobbied for this change.
If there was a public policy reason to extend the term, there was certainly none to do so retroactively. The public policy behind IP rights is to encourage innovation and creativity by enabling the creator's to profit from his work. The reason for these rights to be limited is to enable others to use the work and build on it.
It just goes to show who decides public policy in the US.
Excellent post GG - question- could Adobe legally refuse support or upgrade???
Speaking as a lawyer, "legally" has nothing to do with it. The simple answer is that if they wanted to to this, they would. It is not practicable for an end user to spend tens of thousands of dollars to take Adobe to court over an issue worth a few hundred.
Now, if we are in the US, and we are talking about an issue affecting many thousands of people, a lawyer might be persuaded to bring a class action. I am aware of a proceeding, in California I think, dealing with returning opened shrink wrapped software (the licence said you can't, even though the licence was not available for examination until you opened the package). That was settled and is the reason many publisher now post their licences online and have also made their return policies more liberal.