Re: Business Software Alliance

On Tue, Jan 11, 2000, Carol Ruth Shepherd <shepherd[_at_]arborlaw.com> wrote:
>
> On Tue, 11 Jan 2000, Keith Taber <keith[_at_]drylaw.com> wrote:
> >
> > With respect to the clause imagined below, would it be possible to
> > require that you keep the label or pay again? Imagine any other
> > industry requiring this for a few minutes.
>
> "Any other industry" doesn't get to market goods to consumers that go
> dead in the middle of operation... software is different legally in
> many ways. For better or worse, the differences are accepted as a
> commercially reasonable industry standard. One of the ways in which
> software is different is that it is licensed rather than sold. When
> you change the commercial transaction to a license, first sale rules
> don't apply and the licensee potentially loses a lot of control over
> the product. The licensor can start to require just about any and
> all kinds of behavior as a condition of maintaining and continuing
> the private contract (barring things which are otherwise illegal or
> void against public policy). I can require you to stand on your head
> on Saturday mornings at 10am in front of a digital camera in return
> for a license to use my software.
>
> I think that requiring a licensee to keep proof of license for audit
> purposes is very reasonable. It is very common in entertainment and
> software development agreements with royalty payments, to have a "books
> and records" and "auditing" right. There has almost always historically
> been a requirement to prove license status to receive software telephone
> support (before telephone support became pay-as-you-go). And, the same
> result is effectively accomplished automatically by technology on the
> Internet, when a website makes cookies a condition of the site's use.
>
> UCITA promises to take us deeper into the question of how far private
> contract will be allowed to go to alter rights that you would otherwise
> have in connection with an intellectual product. I personally find the
> recent development of "anti-defamation" clauses in license agreements
> (which require the licensee to not say anything negative about the
> product as a condition of continuing license) and "no fair use" clauses
> (trying to eliminate the user's rights under the Copyright Act) to be
> far more unreasonable and ethically troubling.

Just an observation/question. In the patent area there was a time when patents were routinely overturned on antitrust grounds for abuse of the patent. While only a small percentage of patents were actually litigated, in some circuits there was a 100% overturn rate.

I wonder whether the list thinks that something like that might start happening in software licenses if software vendors get overbearing in their license clauses?

Harold Federow
<HaroldF[_at_]bsquare.com> Received on Wed Jan 12 2000 - 18:32:19 GMT