Hello Dear Friends:
Softman v. Adobe: What it Means for the Rest of Us
"The Court understands fully why licensing has many advantages for
software publishers. However, this preference does not alter the
Court's analysis that the substance of the transaction at issue here
is a sale and not a license," Judge Pregerson writes. If you put
your money down and walked away with a CD, you bought that copy,
EULA or no EULA.
So does this mean Linux users can break up a hardware/software
bundle, keep the hardware to run Linux on and sell the software?
Yes, says attorney Wendy Seltzer, Fellow of the Berkman Center for
Internet & Society at Harvard Law School. "It makes a strong case
that the licenses purporting to restrict resale in this manner are
not valid licenses--so the transactions are in fact sales, and
the buyers are not subject to the "license" conditions. It helped
that Softman hadn't even had to click a clickwrap", Seltzer said
in an e-mail interview.
"I think the decision is on the right track. First sale is an
important limitation to copyright's control, and shrinkwraps have
gotten out of hand in their attempts to extend control beyond the
bounds even of copyright", she added.
Food for thought, no?