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Software - licensed or sold?

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October 27, 2004 11:17:09 AM

Archived from groups: misc.consumers,alt.sys.pc-clone.dell (More info?)

(Ed Foster's Gripelog)---Software publishers generally insist that
their products are licensed, not sold - and that they therefore can
deprive you of the fair use rights you'd otherwise have with a book or
a music CD. But our recent discussions about copy protection have
prompted several readers to point out a contradiction in the software
industry's way of thnking.

"The recent gripe about DRM in the little kid's game reminded me of an
old gripe of mine," wrote one reader. The CD for his kids' favorite
game - a copy-protected Broderbund product that prevented making a
backup copy - had gotten too scratched to load. "I contacted
Broderbund and requested to pay to swap media. They said they had no
more media and no way for me to recover the game. They would not even
provide for a download copy or some other arrangements. The game was a
few years old and I had all of the material to prove ownership, but
now all I had was a useless CD."

But if the game was licensed, not sold, shouldn't he still have a
right to a working copy? "It really drove home that the software
companies want the best of both worlds," the reader with the defunct
Broderbund CD says. "They claim that they are not selling you the
program on the CD but rather licensing you to use the software. When
the software becomes unusable, they switch their tune and tell you
that you own a physical CD that you have damaged and you no longer
have your license to the software."

If software is actually licensed, not sold, then the customer's right
to use it remains despite damaged media, crashed drives, or
malfunctioning DRM. If software transactions are actually an ordinary
sale of goods (as many legal experts believe, by the way), then
customers' fair use rights must remain intact.
One way or the other, software publishers at least should be
consistent.

http://weblog.infoworld.com/foster/2004/10/26.html#a172

More about : software licensed sold

Anonymous
October 27, 2004 7:29:28 PM

Archived from groups: misc.consumers,alt.sys.pc-clone.dell (More info?)

Steve;
Did anyone ever say he had no right to a working copy?
The companies inability to replace antiquated media in no way changes
that right.

Try getting a replacement for a current product.
I don't know about Broderbund, but it is relatively easy with
Microsoft, usually for a small fee.
Similarly many software companies have replacement policies for
damaged media.
But it normally has to be something currently available.
I am curious, what is "few years old"?
When was the last date the manufacturer distributed the game?
Not to be confused with how long the game was on the shelf at a
retailer.

--
Jupiter Jones
http://www3.telus.net/dandemar/


"Steve" <opd@mvc.inv> wrote in message
news:gcbvn0pbdt811lgg9g13iqp2pqbvbsqso7@4ax.com...
>
> (Ed Foster's Gripelog)---Software publishers generally insist that
> their products are licensed, not sold - and that they therefore can
> deprive you of the fair use rights you'd otherwise have with a book
> or
> a music CD. But our recent discussions about copy protection have
> prompted several readers to point out a contradiction in the
> software
> industry's way of thnking.
>
> "The recent gripe about DRM in the little kid's game reminded me of
> an
> old gripe of mine," wrote one reader. The CD for his kids' favorite
> game - a copy-protected Broderbund product that prevented making a
> backup copy - had gotten too scratched to load. "I contacted
> Broderbund and requested to pay to swap media. They said they had no
> more media and no way for me to recover the game. They would not
> even
> provide for a download copy or some other arrangements. The game was
> a
> few years old and I had all of the material to prove ownership, but
> now all I had was a useless CD."
>
> But if the game was licensed, not sold, shouldn't he still have a
> right to a working copy? "It really drove home that the software
> companies want the best of both worlds," the reader with the defunct
> Broderbund CD says. "They claim that they are not selling you the
> program on the CD but rather licensing you to use the software. When
> the software becomes unusable, they switch their tune and tell you
> that you own a physical CD that you have damaged and you no longer
> have your license to the software."
>
> If software is actually licensed, not sold, then the customer's
> right
> to use it remains despite damaged media, crashed drives, or
> malfunctioning DRM. If software transactions are actually an
> ordinary
> sale of goods (as many legal experts believe, by the way), then
> customers' fair use rights must remain intact.
> One way or the other, software publishers at least should be
> consistent.
>
> http://weblog.infoworld.com/foster/2004/10/26.html#a172
>
>
>
>
Anonymous
October 27, 2004 8:17:01 PM

Archived from groups: misc.consumers,alt.sys.pc-clone.dell (More info?)

"Jupiter Jones" <jones_jupiter@hotnomail.com> wrote:

>Steve;
>Did anyone ever say he had no right to a working copy?
>The companies inability to replace antiquated media in no way changes
>that right.
>
>Try getting a replacement for a current product.
>I don't know about Broderbund, but it is relatively easy with
>Microsoft, usually for a small fee.
>Similarly many software companies have replacement policies for
>damaged media.

I agree! I had Symantec's and a Microsoft products' media replaced
without any fees. All I had to do was provide them with my CD
key/Serial number and they send the CDs out without any quarrel or
charge.
Related resources
Anonymous
October 29, 2004 1:35:41 PM

Archived from groups: misc.consumers,alt.sys.pc-clone.dell (More info?)

In article <gcbvn0pbdt811lgg9g13iqp2pqbvbsqso7@4ax.com>,
Steve <opd@mvc.inv> wrote:

> [snip]
>
> If software is actually licensed, not sold, then the customer's right
> to use it remains despite damaged media, crashed drives, or
> malfunctioning DRM. If software transactions are actually an ordinary
> sale of goods (as many legal experts believe, by the way), then
> customers' fair use rights must remain intact.
> One way or the other, software publishers at least should be
> consistent.
>
> http://weblog.infoworld.com/foster/2004/10/26.html#a172

I couldn't agree more. If ever there was an area that is in dire need
of consumer reform, the software industry is it. Sadly, in the United
States, we have a corporate theocracy now, so the chances of solid
consumer rights legislation being passed are slim and nil. This is why
more people should consider using public domain and open source sw.
Anonymous
October 29, 2004 1:38:15 PM

Archived from groups: misc.consumers,alt.sys.pc-clone.dell (More info?)

In article <s9Pfd.10038$df2.9403@edtnps89>,
"Jupiter Jones" <jones_jupiter@hotnomail.com> wrote:

> Steve;
> Did anyone ever say he had no right to a working copy?
> The companies inability to replace antiquated media in no way changes
> that right.
>
> Try getting a replacement for a current product.
> I don't know about Broderbund, but it is relatively easy with
> Microsoft, usually for a small fee.
> Similarly many software companies have replacement policies for
> damaged media.
> But it normally has to be something currently available.
> I am curious, what is "few years old"?
> When was the last date the manufacturer distributed the game?
> Not to be confused with how long the game was on the shelf at a
> retailer.

Why does this matter. The software is licensed. Unless the license
includes an expiration date (some do), then the license is permanent.
How hard would it be for Broderbund to keep old software archived and
make it available via its web site or send it out via CD if need be?
That kind of thing costs Broderbund next to nothing to handle and they
can even charge for the service.
Anonymous
October 29, 2004 2:22:40 PM

Archived from groups: misc.consumers,alt.sys.pc-clone.dell (More info?)

> Steve <opd@mvc.inv> wrote:
>
>> [snip]
>>
>> If software is actually licensed, not sold, then the customer's right
>> to use it remains despite damaged media, crashed drives, or
>> malfunctioning DRM. If software transactions are actually an ordinary
>> sale of goods (as many legal experts believe, by the way), then
>> customers' fair use rights must remain intact.
>> One way or the other, software publishers at least should be
>> consistent.
>>
>> http://weblog.infoworld.com/foster/2004/10/26.html#a172

Shawn Hearn <srhi@comcast.net> wrote:
>I couldn't agree more. If ever there was an area that is in dire need
>of consumer reform, the software industry is it. Sadly, in the United
>States, we have a corporate theocracy now, so the chances of solid
>consumer rights legislation being passed are slim and nil. This is why
>more people should consider using public domain and open source sw.


The question of software "license" vs. "sale" of software is unsettled
at the moment.

The classical rulings on the subject do not favor "licenses". The
usual governing case is Bobbs-Merrill Co. v. Straus, 210 U.S. 339, in
which the courts ruled that if it looks like a duck and walks like a
duck, it's a duck. IOW, calling a sale a "license" doesn't make it
one.

This case involved a book publisher and Macy's dept. store. The
publisher had tried to dictate a minimum retail price, but the court
ruled that once they sold a copy to someone else, that copy was the
property of the buyer and they could sell, transfer, etc. it in any
way they wanted.

That would seem logically to apply to software, where you get to keep
the media (CD, floppy, DVD...) forever, and the "license" does not
have an expiration date.

But at least one appeals court has found "shrink-wrap" licenses valid.
And some states have been validating them by adopting a new proposed
Uniform Commercial Code section.

There is no definitive ruling from SCOTUS on the subject, however.

You can find a lot more on this subject by searching Google groups,
for the word "licence", the phrase "first sale", and group
misc.legal.moderated. Google Groups is at
http://www.google.com/grphp?hl=en&tab=wg&ie=UTF-8
and the following search string should find what you want:
license OR licence "first sale" group:misc.legal.moderated
misc.legal.moderated for the word: licence "first sale"
group:misc.legal.moderated

--
I pledge allegiance to the Constitution of the United States of America, and
to the republic which it established, one nation from many peoples, promising
liberty and justice for all.
Feel free to use the above variant pledge in your own postings.
Anonymous
October 29, 2004 7:13:09 PM

Archived from groups: misc.consumers,alt.sys.pc-clone.dell (More info?)

It would not be hard at all, but it would most like be relatively
expensive.
It is also not a licensing issue.
Those interested in such services should ask for them, perhaps the
companies will listen.
There would be extra expense in maintaining a download site and/or the
CDs.
Most have apparently decided there is not enough to make it worth
their while.
How many users of older software would benefit from such a service?
Even if they charged, how much would they have to charge to even break
to cover all the associated overhead?
Answer these and other questions and I am sure the reasons would be
more clear as to why they are not available.

What major companies do you know of that provide copies or have them
available for download of older software in perpetuity?
None that I know of.
All or at least most have some reasonable policy when the software is
newer.

--
Jupiter Jones
http://www3.telus.net/dandemar/


"Shawn Hearn" <srhi@comcast.net> wrote in message
news:srhi-B0F8A0.09381529102004@news-
> Why does this matter. The software is licensed. Unless the license
> includes an expiration date (some do), then the license is
> permanent.
> How hard would it be for Broderbund to keep old software archived
> and
> make it available via its web site or send it out via CD if need be?
> That kind of thing costs Broderbund next to nothing to handle and
> they
> can even charge for the service.
October 30, 2004 2:26:41 PM

Archived from groups: misc.consumers,alt.sys.pc-clone.dell (More info?)

On Fri, 29 Oct 2004 15:13:09 GMT, "Jupiter Jones"
<jones_jupiter@hotnomail.com> wrote:

>It would not be hard at all, but it would most like be relatively
>expensive.
>It is also not a licensing issue.
>Those interested in such services should ask for them, perhaps the
>companies will listen.
>There would be extra expense in maintaining a download site and/or the
>CDs.
>Most have apparently decided there is not enough to make it worth
>their while.
>How many users of older software would benefit from such a service?
>Even if they charged, how much would they have to charge to even break
>to cover all the associated overhead?
>Answer these and other questions and I am sure the reasons would be
>more clear as to why they are not available.
>
>What major companies do you know of that provide copies or have them
>available for download of older software in perpetuity?
>None that I know of.
>All or at least most have some reasonable policy when the software is
>newer.

Why would it be expensive? It's not like they would need to build
another warehouse to store the software, like storing parts for old
cars.... The most they would have to spend is the cost of a larger
harddrive or another computer to store the software. Then, when a
customer needs a replacement they could have it on the web to
download, and they would assign a password to that person to access
the material. If the person preferred a CD, they could charge the
customer to burn a copy, plus shipping fees.

Whats so hard or costly about that?

I suggest the OP file a complaint with the Better Business Bureau and
Consumer Protection Agency. If that dont get you a new copy, you can
probably find a used copy on Ebay. After you get a new copy, be sure
to make a backup. YES, I know you said it's copy protected. But
there ARE programs that will bypass it. If the company treated you
like that, I would not feel too guilty using some "pirating" software
to make a copy.

Just curious. To the OP, whats the name of the game? There are some
companies on the net that sell old software real cheap. Some is REAL
old, which is the stuff I like to get, since I love playing with Dos
stuff.


PS Broderbund was notorious for copy protected stuff back in the dos
days. I knew a guy who could bypass their copy prot, He was a
programmer, and he could bypass or copy anything....
Anonymous
October 31, 2004 5:03:42 AM

Archived from groups: misc.consumers,alt.sys.pc-clone.dell (More info?)

Expense is relative.
Adding such a new service would require at least a new server.
Then add maintenance, redundancy etc.
With profit margins already low, the costs of maintaining this server
with the software availability for download for the very few that
would use it would probably be prohibitively expensive.
Making CDs available also would cause similar expense.
Most of what you suggest would take time for someone to take care of
and manage, further adding to the cost by way of payroll.

What is the point of making complaints to the Better Business Bureau
and Consumer Protection Agency?
What requirement already exists for companies to provide replacements
for damaged media?
If their is no violation, a complaint is a waste of time for the
complainer and agencies listed above.

The correct course of action is to contact the manufacturer directly.
Of course no one else that I know of does it with older software so
nothing is likely to change.

--
Jupiter Jones
http://www3.telus.net/dandemar/


"ß©©ß" <ß©©ß@§1000.com> wrote in message
news:9q77o0dtfg2oogknuabglu9khrbh1783pm@4ax.com...
> Why would it be expensive? It's not like they would need to build
> another warehouse to store the software, like storing parts for old
> cars.... The most they would have to spend is the cost of a larger
> harddrive or another computer to store the software. Then, when a
> customer needs a replacement they could have it on the web to
> download, and they would assign a password to that person to access
> the material. If the person preferred a CD, they could charge the
> customer to burn a copy, plus shipping fees.
>
> Whats so hard or costly about that?
>
> I suggest the OP file a complaint with the Better Business Bureau
> and
> Consumer Protection Agency. If that dont get you a new copy, you
> can
> probably find a used copy on Ebay. After you get a new copy, be
> sure
> to make a backup. YES, I know you said it's copy protected. But
> there ARE programs that will bypass it. If the company treated you
> like that, I would not feel too guilty using some "pirating"
> software
> to make a copy.
>
> Just curious. To the OP, whats the name of the game? There are
> some
> companies on the net that sell old software real cheap. Some is
> REAL
> old, which is the stuff I like to get, since I love playing with Dos
> stuff.
>
>
> PS Broderbund was notorious for copy protected stuff back in the dos
> days. I knew a guy who could bypass their copy prot, He was a
> programmer, and he could bypass or copy anything....
!