Client Licenses

[jsonnabend]

Originally Posted by Skirge01

For those who actually want to know the answer to this license transfer question, read this. I know how I interpret it and it seems pretty obvious, but I read legal documents quite regularly.

I'm not sure that Vernon is "the answer", but it certainly goes a long way in the Ninth Circuit, at least.

[GKusnick]

Seems to me that the prevailing legal interpretation of executable code as a copyrighted work is fundamentally misguided. The human-readable source code might legitimately be so construed, but users don't buy the source; they buy the executable.

It's like the difference between plans for a house and the actual house. The architect can legitimately copyright the plans and control who gets to build houses from those plans. They don't get to control what happens to the house after it's built.

That said, if I rent a house rather than buying it, the landlord has the right to prohibit me from subletting It and to write that prohibition into the terms of my lease. And it seems to me that's the situation we're in with respect to software EULAs: we're basically renting it rather than buying it outright, and the landlord has written a "no sublets" clause into our lease.

Now I realize that courts have not agreed with this interpretation, but it wouldn't be the first time courts have got things wrong.

[Fuzzy]

It ultimately comes down to a legal arrangement between the seller and the buyer. The terms of that sale, in this case, is the 'rental' example Greg mentioned above. This differs greatly from the Autodesk scenario, where the software is 'keyed' with an actual hardware 'dongle' (much in the way the HD200 and HD300 are physical keys). In this case, the actual dongle is the holder of the license, and as such, can be resold in concert with the first sale doctrine.

Ultimately, though, there are very little to any 'rules' regarding aggrements between two parties, and the Sage EULA is such an agreement. Both parties have aggreed to the words as written, and there are no written laws in the US that will nullify any part of that agreement. There is also no-one who will actively enforce violations of said agreement.

[Naylia]

This seemed like a fair assessment of the current state of EULAs: http://en.wikipedia.org/wiki/End-user_license_agreement

Enforceability of EULAs in the United States

The enforceability of an EULA depends on several factors, one of them being the court in which the case is heard. Some courts that have addressed the validity of the shrinkwrap license agreements have found some EULAs to be invalid, characterizing them as contracts of adhesion, unconscionable, and/or unacceptable pursuant to the U.C.C. —see, for instance, Step-Saver Data Systems, Inc. v. Wyse Technology,[2] Vault Corp. v. Quaid Software Ltd..[3] Other courts have determined that the shrinkwrap license agreement is valid and enforceable: see ProCD, Inc. v. Zeidenberg,[4] Microsoft v. Harmony Computers,[5] Novell v. Network Trade Center,[6] and Ariz. Cartridge Remanufacturers Ass'n v. Lexmark Int'l, Inc.[7] may have some bearing as well. No court has ruled on the validity of EULAs generally; decisions are limited to particular provisions and terms.
The 7th Circuit and 8th Circuit subscribe to the "licensed and not sold" argument, while most other circuits do not[citation needed]. In addition, the contracts' enforceability depends on whether the state has passed the Uniform Computer Information Transactions Act (UCITA) or Anti-UCITA (UCITA Bomb Shelter) laws. In Anti-UCITA states, the Uniform Commercial Code (UCC) has been amended to either specifically define software as a good (thus making it fall under the UCC), or to disallow contracts which specify that the terms of contract are subject to the laws of a state that has passed UCITA.
Recently, publishers have begun to encrypt their software packages to make it impossible for a user to install the software without either agreeing to the license agreement or violating the Digital Millennium Copyright Act (DMCA) and foreign counterparts.
The DMCA specifically provides for reverse engineering of software for interoperability purposes, so there was some controversy as to whether software license agreement clauses which restrict this are enforceable. The 8th Circuit case of Davidson & Associates v. Jung[8] determined that such clauses are enforceable, following the Federal Circuit decision of Baystate v. Bowers.[9]

So seems to depend much on whether your state would follow the concept that the software you purchased was "licensed" to you or "sold" to you, regardless of the provisions in the actual EULA provided by SageTV.