Sorry for taking a very long time answering. I have been bussy lately and had other things on my mind.
I am a bit lost on what you talk about since the quote of me is not something I have written. I don't believe I have ever said anything contrary to the above. What you descirbe actually exists in many (if not most/all) countries copyright law.
Yes, this applies to about anything you buy. Has nothing to do with copyright. You can dispose (resell or whatever) a chair as well. That is the concept of sale. A change of ownership. It is not tied to copyright. I believe in US copyright law this is specifically said (that it is not tied) in chapter 2, mostly in § 202.
Yes, the excpetion is about "rental, lease, or lending". Nothing else. This is again, normal in more countries that others. That is, the consumed right to controld distribution after the first sale, is still in place for rental. I don't think I have ever, here or in other places discussing the topic said anything to the contrary. I usually try to specifically mention the exception to rental.
You are confused thinking there is some sort of "license". There is none. Software is sold in stores and other palces like most everything else. It is a sale no matter how you look at it, especially from the point of law (I even see US people often dig up some case were a court specifically said so, that is, if it looks and acts like a sell, it is one, no matter what one want to call it). YOu can't sell something to someone and then claim that you don't call it a sale but something else. Even worse, it is someone else than the shop claiming so. Are you saying the shop commits fraud (or whatever it is called) selling something they don't "own"? This must be the logical conclusion. In addition, how can you come ito possession of the software if it is not yours? I mean if you don't own it, you must have rent it or something, or you would be in possession of someone else property.
Sure, the software makers like to call it "a license", that does not turn it into a non sale. That does not make it so. As I also have said before, there is nothing to license. It would be like selling licenese to breath claiming that if you don't agree to it, you may no longer breath.
As an interesting note, try to explain why many comercials claim that you can "own it now" or buy it and so on when making comercials for music, movies, software or whatever.
You do know that the case is still in courths and not yet decided, right? I will try to hunt down the reference most people tend to bring up regarding sales being sales. I typically don't go arround collecting links to US court cases since I don't live in the US by the way. Especially since I am more concerned about for example my own country's laws.
As an interesting logical task, what is, according to you and your courts the situation between the purchase and you agreeing to your EULA? Or if you disagree. What applies then? And can your agreement with some third party (software maker) invalidate your sale with a shop?
I purchase from stores, never from Microsoft, in case you wonder. Selling such a license you propose is pointless as I have explained several times since it is a license for something that does not exist since there is nothing forbidding the use.
What do you mean "provide"? The shop gives me a copy of the software. I made no agreement with the purchase with microsoft. So I don't understand you logic. A sale is a sale if it is is conducted as a sale and it is covered by sales laws. NO way arround it by trying to claim or call it something else. Especially not doing so at a much later stage.
None of the paragraphs you mention gives the copyright owner the right to control USE. Have you read my previous posts? It only gives a right to distribute (the act of distribution). HOW you distribute and WHAT you can agree upon WHEN you distribute is covered by (consumer) sales laws and contract laws and have absolutely nothing to do with copyright and as such, anything in that case can also be applied to, for example a chair you sell.
Darian,Jun 1 2005, 01:50 PM Wrote:You see, under US Copyright Law, when you purchase a copy of a work, there's this thing called the Doctrine of First Sale, addressed in section 109. What it means is that when you buy a book, or a painting, or whatever... you can turn around and sell that copy of the book to anyone you want. The Doctrine asserts that the copyright holder gives up his right to distribute THAT COPY of the item once he sells it.
I am a bit lost on what you talk about since the quote of me is not something I have written. I don't believe I have ever said anything contrary to the above. What you descirbe actually exists in many (if not most/all) countries copyright law.
Darian,Jun 1 2005, 01:50 PM Wrote:If you were correct, this would be the end of it; it would mean that the terms of sale are irrelevant, because once you own it, you can dispose of it as you like, provided you're not violating copyright laws by making copies.
Yes, this applies to about anything you buy. Has nothing to do with copyright. You can dispose (resell or whatever) a chair as well. That is the concept of sale. A change of ownership. It is not tied to copyright. I believe in US copyright law this is specifically said (that it is not tied) in chapter 2, mostly in § 202.
Darian,Jun 1 2005, 01:50 PM Wrote:There are two problems, however, and I will admit I was not particularly clear on this previously. (1) Section 109 specifically contains exceptions related to audio recordings and software (the Record Rental Amendment of 1984 and the Computer Software Rental Amendments Act of 1990). (2) What if the software company is not, in fact, selling you a copy of the software, but... wait for it... a license to use it?
Yes, the excpetion is about "rental, lease, or lending". Nothing else. This is again, normal in more countries that others. That is, the consumed right to controld distribution after the first sale, is still in place for rental. I don't think I have ever, here or in other places discussing the topic said anything to the contrary. I usually try to specifically mention the exception to rental.
Darian,Jun 1 2005, 01:50 PM Wrote:The amendments referred to in (1) boil down to "while you can do whatever the hell you want with books and paintings and sculptures, you can't lease, rent, or lend recordings or software." Selling you a license to the software, rather than selling you a copy of the software, dodges the Doctrine of First Sale. You accuse me of being "confused" regarding who "owns" Windows XP; since you're being sold a license, Microsoft certainly does still own Windows XP -- including the copy of it you're using. All you own is the right to use the software.
You are confused thinking there is some sort of "license". There is none. Software is sold in stores and other palces like most everything else. It is a sale no matter how you look at it, especially from the point of law (I even see US people often dig up some case were a court specifically said so, that is, if it looks and acts like a sell, it is one, no matter what one want to call it). YOu can't sell something to someone and then claim that you don't call it a sale but something else. Even worse, it is someone else than the shop claiming so. Are you saying the shop commits fraud (or whatever it is called) selling something they don't "own"? This must be the logical conclusion. In addition, how can you come ito possession of the software if it is not yours? I mean if you don't own it, you must have rent it or something, or you would be in possession of someone else property.
Sure, the software makers like to call it "a license", that does not turn it into a non sale. That does not make it so. As I also have said before, there is nothing to license. It would be like selling licenese to breath claiming that if you don't agree to it, you may no longer breath.
As an interesting note, try to explain why many comercials claim that you can "own it now" or buy it and so on when making comercials for music, movies, software or whatever.
Darian,Jun 1 2005, 01:50 PM Wrote:US District Court for the Eastern District of Missouri, Davidson & Associates v. Internet Gateway Inc (2004)":
Code:"The first sale doctrine is only triggered by an actual sale. Accordingly, a copyright owner does not forfeit his right of distribution by entering into a licensing agreement."
"The defendants .. expressly consented to the terms of the EULA and TOU by clicking 'I Agree' and 'Agree.'"
You do know that the case is still in courths and not yet decided, right? I will try to hunt down the reference most people tend to bring up regarding sales being sales. I typically don't go arround collecting links to US court cases since I don't live in the US by the way. Especially since I am more concerned about for example my own country's laws.
As an interesting logical task, what is, according to you and your courts the situation between the purchase and you agreeing to your EULA? Or if you disagree. What applies then? And can your agreement with some third party (software maker) invalidate your sale with a shop?
Darian,Jun 1 2005, 01:50 PM Wrote:And that's where your argument runs aground, Jarulf. When you "buy" Windows XP, you are not purchasing a copy of the software. You are purchasing a license, and in conjunction with your purchase of that license, Microsoft is providing you with a copy of the software.
I purchase from stores, never from Microsoft, in case you wonder. Selling such a license you propose is pointless as I have explained several times since it is a license for something that does not exist since there is nothing forbidding the use.
What do you mean "provide"? The shop gives me a copy of the software. I made no agreement with the purchase with microsoft. So I don't understand you logic. A sale is a sale if it is is conducted as a sale and it is covered by sales laws. NO way arround it by trying to claim or call it something else. Especially not doing so at a much later stage.
Darian,Jun 1 2005, 01:50 PM Wrote: As part of the terms of that license, Microsoft most certainly may dictate to you terms of use, and until legislation is passed amending sections 106 and/or 109, barring copyright holders from choosing to license their work rather than selling a copy of it as a means of distribution, it'll stay that way.
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None of the paragraphs you mention gives the copyright owner the right to control USE. Have you read my previous posts? It only gives a right to distribute (the act of distribution). HOW you distribute and WHAT you can agree upon WHEN you distribute is covered by (consumer) sales laws and contract laws and have absolutely nothing to do with copyright and as such, anything in that case can also be applied to, for example a chair you sell.
There are three types of people in the world. Those who can count and those who can't.