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Monday, September 13, 2010

Look out, Powell's

This dangerous court ruling could be the beginning of the end for used book and CD sales. It would take a while, but under the decision, eventually you may not be able to legally re-sell used data of any kind. You won't buy a book -- you'll just purchase a "license" to read it. Just you.

Comments (16)

This is scary!

This seems restricted to software. I think Microsoft has similar restrictions in place on its software, like Word and Excel. I am probably not reading far enough into the Decision, and even so, am not a lawyer.

What a shock .... the Ninth Circuit!

This seems restricted to software

Not so. Most book publishers, and Cd and DVD producers already license their products. They print restrictive, limited use, not for sale or resale, and must be returned on demand verbiage of licensure on advance and promotional copies circulated to reviewers, critics, DJ's, talk show producers and the like.

Since there is no payment made and the advance/review copies are clearly intended for use in a tight timeframe in anticipation of a release date, a good license (as opposed to a sale) case can be made under the traditional standard. A similar case can't be made under the traditional standard for sales and resales of books, Cd's and DVD's produced and sold in the ordinary course of business. Those are clean property sales.

What this new court ruling seems to do is permit producers of copyrighted materials to write their own copyright law by merely asserting they are selling a license for use rather than a tangible product. They need only add a paragraph in the book, or a stub onto the Cd or DVD.

EBay will definitely be financing the litigation and lobbying for change going forward.

The law runs amok... and does not keep up with reality.... there is a pendulum out there somewhere but it takes too damned long.

Adobe is likewise with respect to AutoDesk. They (Adobe) just aren't as anal about destroying earlier copies.

The notion to sell earlier copies has appeared in the Adobe forums around their Creative Suite apps. As with AutoDesk, you cannot sell the originating copy, for which you paid full price, if you use that purchase to obtain the upgrade version, even though the upgrade isn't just a bunch of add-on code to your original copy. You install the entire version, as if you have purchased the entire version for the first time.

In lieu of paying $900, but only $300, I think this is a fair deal. If I were to abandon Photoshop entirely, I could sell the copies but first it has to go through some sort of transfer agreement between you, Adobe and the new buyer.

So, it can be done.

The difference here is, concerning licensing reading only, is that Jack could come over to my house and use my copy of Photoshop with no consequences. If the law were to get so stringent that no one could read your copy of Moby Dick, then probably I could not let anyone even use my computer.

With the basic licensing of Photoshop, I am licensed to install on 2 computers, but can only run one copy at a time. So I could take my copy to Jack's house, install it, run his stuff, maybe all weekend if I'm out of town, then uninstall it and take my copy home. So that's similar to loaning out a book in a certain sense.

At least, that's the way it seems to me.

But Jack is the heavy here, law wise.

This ruling is pretty scary and it has been this way for software for a while. The problem is that they tell you to return the product if you dont agree with the license agreement. However, you have to open the package to do that. Sometimes even install it first. No retail outlet allows returning opened software. (Except maybe Costco.)
On top of that, they change the agreements all the time, and your only recourse is to uninstall the software and not use it any more. You dont get your money back.

Adobe does give money back, even with opened packages, even though they offer a 30 day free trial. It's not easy, but it has been done.

Shrinkwrap software agreements stand the rest of contract law and the U.C.C. on its head and the powers that be allow it. Normally, if you purchase something defective, you can be recompensed. But defective software is a way of life and contractual language that would be found outrageous and unenforceable in other contractual aspects are allowed to stand. And if you want authority on this, try reading Cem Kaner's various works on this b.s.

I think a bigger threat to Powell's is likely to be a rise in theuse of products like the Kindle. You can't resell the copy of "Sense and Sensibility and Zombies" you bought electronically and it would seem unlikely that Amazon and other e-book vendors would set up a market for doing so, particularly with this ruling in place.

There's no rationale for resale of ebooks, although it does cut into the ability of prolific readers to partially finance their reading habits with last year's purchases.

LucsAdvo, defective with respect to what? The computer's mobo? Processor? Video card? The OS? Any combination of the above is more like it. The software that runs games so well may not run the graphics programs for Commercial art, even though they are both graphics objects! The opposite is even more certain.

If we wait until all problems are solved before release, nothing would get released for the simple reason that there is no cash flow to pay for all the work necessary and the software will be desperately obsolete.

It's a bootstrap process, and if you want to play, you have to pay.

Simple as that.

We are at the infant stage of all this digital processing and parts of the technology are so advanced that some of it were doable 10 or more years ago, but still today, not universally operational.

Starbuck - I am not about to engage you in the legal history of contracts law because you would be oblivious to any of it. But essentially there is no recourse with shrinkwrap vaporware. However, if I buy a new car that is a lemon, I have rights.

And your thoughts about software quality are ridiculous. Are you some kind of cowboy coder? My current job involves software quality and your views are pretty Neanderthal compared to say current CMM thinking.

Pay is given for something of value not materially flawed products.

No, I don't do code but I do know some "cowboy coders". A couple are pretty good! I do software validation, and not for a small outfit either.

Materially flawed yes, we are in agreement. That is one place I am adamant about test output. But, otoh, and if you do this you also know that a given piece of software will not perform 100% on 100% of the platforms for which it is intended. That is where I am coming from. Do I like it? NO! Is it a reality? YES! CMM and CMMI not withstanding.

There is lots of garbage masquerading as software. It is not uncommon for a management of a software group to redefine standards just so the software passes. It still is let the buyer beware.

And no, I am not about to argue legal merits of contracts. I hire an attorney to do that! However, because of another activity I pursue, I make it my business to keep as current as possible on copyright law, consistent with my needs.

It's not about the legal merits of contracts, it's really about the essence of a contract. And it's my belief that shrinkware software contracts are such a joke that under classic contract interpretations they would be considered unenforceable but the hot shots have gotten the powers that be to stand the law on its head and make a mockery both of the English Common law view of contracts which prevails in most US jurisdictions (e.g. the state of LA is Napoleonic) when the U.C.C. is not in play. And the U.C.C. would never countenance the shrinkwrap language.

I don't work for a software vendor. I am in house IT and for most of my 30 plus years in the business. But I've been watching vendors act less than responsibly since the 70s (e.g. DEC selling a system that allegedly was compliant with a certain communications protocol and when I proved it wasn't and it was harming my employer's business, they refused to acknowledge for fix it). I have worked for 2 companies that sold software and I am familiar with the bending of standards. In one case, during a heated debate I told management to either fix the code or change the documentation since the code was not operating the way the documentation described).

At least when it's a large corporation, they can bring pressure to bear on recalcitrant vendors. J. Q. Public buying shrinkwrap is not so lucky.

One of the most odious practices with which I have had to deal is the bending of the documentation in order to speed up the delivery, or maintain the schedule. The "fix it in updates" when the needs are not being met gives great pause. But then, the software I was validating could not stand much deviance before causing crashes or fits to the people writing lower level code with which it interacted. Worst case: meltdown! So it was nice to have the finger on the Stop button for the process!

I am in basic agreement with what is being said here. My big concern is honest tradeoffs that multiply up to bad code perceptions by the user. Observing the Adobe forums, especially Photoshop, I see really bad, nasty comments when a certain feature like Open Gl doesn't work on a particular computer. The troubleshooting skills are lacking by non-computer pros, and maybe rightly so. Why should a professional photographer or designer have to possess advanced troubleshooting skills down to the driver level?

So far as DEC, I well remember the PDP-8 and PDP 11!

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