Re: Just-out comment on *Eldred*

Seems the pervasive opinion of court is to recognize software for what it is "an article of commerce" and therfore subject to the Uniform Commerical code. This does not defeat the copyright any more than a refrigerator sale defeats the underlying patent.
the courts are right, correct, and in keeping the massive infrastrature that a sale takes advantage of under the UCC. Software a medium of exchange is in fact a "good in exchange" while the content of the good might be protected by some god awful monopoply, the medium is not. The sale as described is a UCC conforming sale.

  It is impossible, it seems to me to argue otherwise?

sterling

On Fri, 4 Oct 2002, Kevin Grierson wrote:

> FWIW, I am working on a publication summarizing cases dealing with the enforceability of shrinkwrap and clickwrap agreements, and it appears that the vast majority of courts still treat mass market software transactions as sales and not licenses. In th
e iLan v. NetScout case out of the D. of Mass., the court found that the UCC wasn't technically applicable but decided that it would apply it anyway, as the rules were in keeping with the party's expectations.
>
> Also FWIW, the courts are much more evenly split on the enforceability of such shrinkwrap agreements, though the trend seems to be toward the acceptance of a "money now, terms later" method of contract formation.
>
> Kevin Grierson
>
> Kevin W. Grierson
> Willcox & Savage, P.C.
> 1800 Bank of America Center
> One Commercial Place
> Norfolk, Virginia 23510
>
> mailto:kgrierson[_at_]wilsav.com
> ph: 757/628-5603 fx: 757/628-5566
> http://www.wilsav.com
>
> >>> ket354[_at_]yahoo.com 10/03/02 10:09AM >>>
> Doesn't this all go back to the fallicy of software
> purchases as licenses?
>
> The thinking of the software creator being "I have
> this code that I have created, though it may or may
> not include originality. If you want this code you can
> not buy it from me, but you may LICENSE a copy for use
> as I prescribe. Otherwise you may not have the code."
> Sort of like renting a car with certain restrictions
> that you would not have in your own car (ie only for
> use in the state you rented in or adjacent states, no
> travel in foreign countries, etc.).
>
> This seems to work for one off and high cost code, but
> when a consumer goes into a store and pays seventy
> bucks for a box with a disk, it sure seems like you
> bought a copy of the software like you would buy a
> book. Not licensed a version of the software as if you
> rented a car.
>
> But that is likely another thread that has been beaten
> to death . . .
>
> Keith
> --- Roy Murphy <murphy[_at_]panix.com> wrote:
> > 'Twas brillig when Robert A. Baron scrobe:
> > > Perhaps it is the translation of the Aristotle's
> > Politics that is being
> > > protected.
> >
> > Perhaps, but Alice in Wonderland isn't a translation
> > and the ebook
> > version of it has restrictions as well.
> >
> > --
> > Roy Murphy \ CSpice -- A mailing list for
> > Clergy Spouses
> > murphy[_at_]panix.com \
> http://www.panix.com/~murphy/CSpice.html
>
>
> __________________________________________________
> Do you Yahoo!?
> New DSL Internet Access from SBC & Yahoo!
> http://sbc.yahoo.com
>
Received on Sat Oct 26 2002 - 16:00:22 GMT