There is a discussion in another thread related to this question. A key issue relates to the fact that the end user licence agreement in the particular software states that the purchaser is not allowed to resell. There are a number of reasons such a restriction is not and should not (in my view) be enforceable. There have, in fact, been restrictions in some EULAs that have been successfully attacked and others are currenltly being challenged in the courts.
I am not aware that the restriction on against reselling software has been tested in a Canadian or US courts. I thought it would be intersting to canvass a few of these to see where some of our dearest vendors have in their EULAs:
Office mac 2004 allows transfer, but only once:
Quote:
11. SOFTWARE TRANSFER...Transfer to Third Party.
If You are the person who initially licensed the Software Product, You may make a one-time permanent transfer of this EULA, Software Product and Certificate of Authenticity (if applicable) to another end user, provided that You do not
retain any copies of the Software Product. This transfer must include all of the Software Product (including all component parts, the media and printed materials, any upgrades, this EULA, and, if applicable, the Certificate of
Authenticity)...
Dantz Retrospect allows transfer:
Quote:
8. Assignment... You may transfer the Software, the Documentation, the License Code, and all rights under this Agreement to a third party only if such third party agrees to accept the terms and conditions of this Agreement.
Quicken deluxe 2000 allows transfer:
Quote:
You may transfer your rights in the Software to a third party, or sell the computer on which the Software is installed to a third party, provided you do not keep a copy of the Software for yourself.
MacSpeech iListen EULA does not allow transfer:
Quote:
Transfer Prohibited Recipient may not rent, lease, sell or otherwise transfer the SOFTWARE, whether on the media, if any, or otherwise, nor any copies of the SOFTWARE, or any of the accompanying documentation.
OS X can be sold once:
Quote:
3. Transfer... You may, however, make a one-time permanent transfer of all of your license rights to the Apple Software (in its original form as provided by Apple) to another party, provided that: (a) the transfer must include all of the Apple Software, including all its component parts, original media, printed materials and this License; (b) you do not retain any copies of the Apple Software, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving the Apple Software reads and agrees to accept the terms and conditions of this License.
Photoshop allows transfer:
Quote:
... You may, however, transfer all your rights to Use the Software to another person or legal entity provided that: (a) you also transfer (i) this Agreement, (ii) the serial number(s), Software and all other software or hardware bundled, packaged or pre-installed with the Software, including all copies, Updates and prior versions, and (iii) all copies of font software converted into other formats, to such person or entity; (b) you retain no copies, including backups and copies stored on a computer; and (c) the receiving party accepts the terms and conditions of this Agreement and any other terms and conditions upon which you legally purchased a license to the Software.
I tried to find a EULA for Toast online (and also in my manual) without success.
OK, as it turns out, the only one I have found so far that purports to tell you that you can't resell is MacSpeech, which happens to be the company I have a beef with. I have looked for others, and I have excerpted from every EULA I have found so far. I welcome MacSpeech or anyone else to add to my list.
It seems, and is surprising for a bigshot barrister, that you didn't do your research!
BTW you are looking for precedents that fly in the face of contracts (namely the EULA)
Contracts are King- Even Lionel Hutz knows that they are "unbreakable!...unbreakable!
This is why I didn't bother to register my copy with M$ - I can sell it where and when I like, without any hassles.
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.
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.
There's no law requiring me to register the software. I fail to see how buying the software (legally), not bothering to register it, and subsequently selling it to someone else who can suit himself about registering or not, is any skin off Microsoft's nose or hastens the day of any dreaded consequences. "Harder to catch" is offensive - it suggests that the above is improper or illegal, which it is not!
__________________ "I don't know the key to success, but the key to failure is trying to please everybody."
- Bill Cosby
There's no law requiring me to register the software. I fail to see how buying the software (legally), not bothering to register it, and subsequently selling it to someone else who can suit himself about registering or not, is any skin off Microsoft's nose or hastens the day of any dreaded consequences. "Harder to catch" is offensive - it suggests that the above is improper or illegal, which it is not!
You don't buy software: You buy a license to use the software under the particular terms of your license agreement.
There are many instances where reselling software is forbidden by the terms of the user agreement (either the shrinkwrap one or the one you OK'd past onscreen when you installed the software. Examples would be educational-version software (like Office Student and Teacher), site licensed software, Not for Resale demo versions.
In most of those cases, the software is reduced in price precisely because you (the purchaser) have 'bargained' away some priviledges like right of resale, upgrades or free support.
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