With much due respect to both parties, I think David Hale is precisely
wrong. Section 117 of the copyright act, accompanied by a SALE of a copy,
plus the other provisions of the copyright act, contain enough content to
allow for and regulate the use of one copy of a software program one has
purchased. Every other limitation on use is an attempt by the "licensor" to
go beyond the bargain hammered out in the Congress, after extensive analysis
(the CONTU report).
We may or may not like the deal Congress drew up then (and is still drawing up with amendments to Section 117, etc.), but I contend it is legally sufficient as an enforceable deal.
Given the operation of pre-UCTIA UCC, a deal on liabilities is not necessary either, since it (and Magnuson-Moss federal provisions) set default provisions for those as well.
It is the reluctance (perhaps quite justified, especially in their minds) of the software publishers to accept the default deal that leads to the software license, not a "legal vacuum" that needs filling.
Roland J. Cole, Executive Director
SOFTWARE PATENT INSTITUTE
11 South Meridian Street
INDIANAPOLIS IN 46204-3535
317-231-7799 Fax: 317-231-7433
cole@spi.org http://www.spi.org
> With much due respect, I think Prof. Ochoa's view is precisely wrong (see
> below).
>
> My first objection is that it is certainly possible to own software
> outright, at least to the extent that a single person can own and -- in
the
> United States -- sell the entire bundle of rights to a copyrighted work.
It
> is even common to do so, in custom software contracts. (I anticipate that
> some will respond that no one can "own" a copyright because the Copyright
> Act provides for certain fair uses which prevent absolute ownership. I
find
> this unpersuasive. No one questions that I own my house just because
there
> are a limited set of circumstances under which I can not prevent someone
> from coming on to my land, even though my "ownership" of the house is
> fundamentally no more than a right to exclude others).
>
> I put forth the suggestion that contrary to the assertions of several
> members of this group, almost no one who purchases software believes he
> purchases it outright; almost everyone understands that he is purchasing a
> license, at least implicitly, and whether or not he would recognize the
term
> license. Almost no one who pays money to receive a CD with a copy of
> Windows2000 on it believes that this grants him all rights in the program,
> including the right to preclude others from using it. Almost everyone
> agrees that they do not have the right to make infinite numbers of copies.
> The person on the street may not call it a license, but the person on the
> street understands that there is some limitation to the bundle of rights
> being sold to her with the CD.
>
> Fine, one might say, the first sale doctrine applies, and we can view a CD
> like a book as a good. No license is required. But if no explicit
written
> license is provided, all the person on the street has purchased is a shiny
> piece of plastic.
>
> That's because in order to function, at least one additional copy of the
> program must be made into the computer's memory (most programs also
require
> an additional copy to be made to the computer's hard drive). Any use of
the
> program in the computer creates a copy; under the copyright statute that
> violates the copyright law. Sure, the first sale doctrine allows the
person
> on the street to sell his shiny piece of plastic to someone else, but what
> is the next person going to do with it?
>
> My point is that licenses were created out of necessity, not greed.
> Software has to be accompanied by a license.
>
> This does not excuse overreaching by companies who sneak in unfair clauses
> into their software. These terms should not be enforced, and often they
are
> not (the recent ticketmaster v. tickets.com case is such an example).
>
> But think of the alternative. A piece of software *must* have a license
of
> some sort to determine the scope of rights one purchases along with the CD
> (as a side note to UCITA haters -- an explicit license may not be
necessary
> under UCITA, which attempts to codify a default license, if you will, but
a
> license certainly is required in any other jurisdiction). If a form
license
> can not be included with the software to be reviewed at leisure at home
> (with the right of refund if the terms are not accepted), then the
> alternative is the negotiation of individual licenses for each user. The
> transaction costs would be astronomical. Purchasing MS Office wouldn't
cost
> $299. It would cost $2999 to cover MS's attorney's fees and transaction
> costs, plus your attorney's fees of another $1000 or so.
>
> Overreaching by greedy software companies is a problem which I do not
deny.
> But holding shrink-wrap licenses therefore unenforceable is throwing the
> baby out with the bathwater. I think it's rapidly becoming irrelevant
> anyway, because the main objection to shrink-wrap licenses is not present
> with clickwrap licenses, i.e. that payment is made before the license
terms
> are available for review.
>
> -David Hale
>
> ----- Original Message -----
> From: "Tyler Ochoa" <tochoa[_at_]LAW.WHITTIER.EDU>
> To: "Multiple recipients of list" <cni-copyright[_at_]cni.org>
> Sent: Monday, September 18, 2000 8:44 PM
> Subject: Re: Consideration in a Shrinkwrap Contract
>
>
> Mr. Gurwin has stated the orthodox view; but I believe it is the wrong
view
> under the first-sale doctrine. The issue under §109 is not whether the
> consumer "owns" the software [a meaningless statement]; but whether the
> consumer owns A COPY of the software. As long as possession of the
tangible
> object has been transferred for a one-time fee, in my view that is a sale,
> period. Calling it a license doesn't make it a license. The fact that
some
> misguided courts have allowed software copyright owners to replace
copyright
> with contract doesn't settle the question.
>
> Tyler T. Ochoa
> Associate Professor
> Whittier Law School
>
>
>
> >>> "Robert S. Gurwin" <itlawyer[_at_]worldnet.att.net> 09/15 4:00 PM >>>
> Actually, I think many people are easily confused and have a fale
impression
> that they OWN software because of they went to a store, picked it up off
of
> a shelf and received a nice tangible package with a CD inside.
>
> In reality, the consumer NEVER actually OWNS the software. Rather, that
> software is LICENSED giving the consumer certain rights to load the
program
> and run it on ONE computer at a time (unless multiple site licenses are
> purchased), or to make a back-up copy in case of a computer hard drive
> crash, etc.
>
> It is imperative to remember that when dealing with contracts, the vendor
is
> the master of his offer and can be on whatever terms the vendor chooses.
> Unless the terms are found to be clearly unconscionable by a court of law,
> the terms are binding on a consumer so long as there has disclosure of the
> terms and the consumer has accepted them by opening the shrink wrap or
> clicking through the license agreement on the computer screen. If the
> consumer doesn't wish to accept the terms and conditions printed on the
> shrink wrap or in the click license, that consumer may return the software
> for a refund.
>
> To help change the idea of OWNING software, software vendors are turning
> ever more often to the idea of acting as an ASP (application service
> provider) whereby the consumer pays to access and utilize software that is
> run and maintained on the vendors servers. By utilizing this model, it is
> much more apparently clear that the software belongs to the vendor, the
> consumer is paying to use it and there is never the loss of control that
> exists nowadays when software must be physically loaded onto the
consumer's
> computer system.
>
> Robert S. Gurwin
> Chicago, Illinois
>
> ----- Original Message -----
> From: "Bryan Taylor" <bryan_w_taylor[_at_]yahoo.com>
> To: "Multiple recipients of list" <cni-copyright[_at_]cni.org>
> Sent: Friday, September 15, 2000 3:40 PM
> Subject: Consideration in a Shrinkwrap Contract
>
>
> > The ProCD thread reminded me of a basic problem with Shrinkwrap
> > "contracts" that I don't see any way around -- that of consideration.
> >
> > I'm considerting the typical case where you go to CompUSA, buy a mass
> > marketed software product, bring it home and discover that you are
> > offered via shrinkwrap or clickwrap "offer" a licence to install the
> > software in exchange for agreeing not to engage in reverse engineering,
> > say.
> >
> > By Congressional decree in 117(a)(1) of the Copyright Act, you as
> > "owner of a copy of a computer program" have the right to make a copy
> > "as an essential step in the utilization of the computer program in
> > conjunction with a machine".
> >
> > So you when you arrived home with your receipt (contract of sale) you
> > already own the right to install. What does the software company give
> > up as a quid-pro-quo in exchange for your consessions?
> >
> > __________________________________________________
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> > http://mail.yahoo.com/
>
>
>
>
>
Received on Wed Sep 27 2000 - 13:30:09 GMT
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