Softman v. Adobe: What it Means for the Rest of Us

US Court says buyers can unbundle EULA-covered software.

If you find yourself paying for bundled proprietary software and don't actually install it, you can legally resell it no matter what the End-User License Agreement (EULA) says. That's what Judge Dean D. Pregerson wrote in his "Order Re: Application For Preliminary Injunction" in the case of Softman v. Adobe.

Here's the full decision.

We all like to see the authoritarian DMCA-mongering swine at Adobe lose a case (free Dmitry!), but this one has implications for everyone forced to buy copies of proprietary software they don't want in order to get hardware they do.

Softman didn't make any copies, they just bought bundles of Adobe software and resold the individual programs separately. Adobe said that's not allowed because their sale of software to Softman isn't really a sale, but a license. But the judge says if the transaction has the form of a sale, it's a sale.

"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.

This isn't quite as good as getting a refund direct from the manufacturer for the unused proprietary software that came with your computer, but with the marvels of on-line auction sites and swap meets, it's getting close. Windows Refund Day didn't get far, but Windows Resale Day is another story.

Will this decision hold up? Seltzer warns that "so much of the software publishing industry thinks these click-wraps are key to its business, that this will no doubt be appealed."

Don Marti is Technical Editor of Linux Journal.

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Ebay Blunder for PTstudios

Chris's picture

I had a fun experience this last week. A bud of mine and I were talking on the phone and checking out ebay. He saw a multi-item auction that we both bid on. Both of us ended up getting a copy of adobe premiere pro 1.5.... or so we thought. He called me when his came in and we compaired notes. We tried to register our products with adobe.com and found that the keycode numbers were invalid. Adobe states on their site that they don't sell software that #1 has a sticker label, #2 is a cdr. Then we found that it was adobe's version 7, which is adobe premiere 1.0, not 1.5!!! Next was the kicker.... we both had the same keycode!!! So now we notice that the ebay seller musicproducer28 is unregistered from ebay when we go to leave feedback. Ebay gives us the contact info and we call Mr. Jeff Wells, who is asked about the keycode and told about our inability to register a so called "Unregistered" keycode with adobe, and that the software was fake cdr copies and that it was adobe 1.0... not 1.5 that was advertised . His reply was "What are you worried about... you got the product for alot less than what it's worth". He said that he bought bunches of bundles of them. We told him we'd give him the chance to rectify the situation by sending valid copies of the software, or refunding the purchase price and shipping. He said there was nothing to rectify, and then we told him that Andrew and I had compaired registration keys for the software and that they were identical.... Jeff Wells repied "I don't have time for this!" , and then hung up. We're in the process of supplying info to my wife's law firm, ebay, paypal, adobe.com, our lawfirm branch in California, plus that states district attorney, supreme court judge affiliated with the firm, and a few FBI friends. Even though the software didn't come as the version that was advertised, one lesson learned is that before you buy on ebay, do your research, and know what you are buying. We didn't know the cost of a retail version of premiere 1.5. If we did, we probably wouldn't have paid $40-50 for them. You can reply to ptstudios@rochester.rr.com if you have any further comments.

Adobe "license" -- is it valid at all?

Anonymous's picture

I recently bought some Adobe software. On the packaging, it noted that inside was a license agreement.

Now, if I cannot read the license agreement before I open the packaging, how can I possibly have agreed to the terms of that agreement? In other words, the agreement surely cannot be enforced.

There was not even a URL or reference to any other location that I could find a copy of the license agreement so that I could read it before opening the packaging.

Re: Adobe

Anonymous's picture

That's just one of the devious ways that corporations can snag you and say to the courts that you willfully accepted the agreement. Some packaged software that I have read stated that "By opening this software, you are agreeing to abide by the EULA" instead of "By installing this software" which is a double-whammy. Certainly I don't feel that the "By opening this software" can be binding, since you have to break the seal to get to the license, I'm sure the "By installing this software" type of agreement is still legally binding. Hmm, idea here, being the manufacturer installed the OS (HP, Compaq, any of them) are they agreeing to the license, and then turning around and selling it to the public?

Re: Adobe

Anonymous's picture

How about just

"By reading this sentence, you agree to..."?

Just wait, folks.

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

One of the key elements of the ruling is the doctrine of first sale. Adobe didn't sell anything directly to Softman, Adobe's distribution partners did (because Adobe offered no refunds for unsold licenses). This caused the judge to rule it a sale. Another key element was the concept of assent in contract law. Softman wasn't bound by the EULA because they didn't ever click okay while installing or using the software. That might not be the case if you advise ordinary end users to go about unbundling their own software.

Re: Softman v. Adobe: What it Means for the Rest of Us

LicenseGuy's picture

This decision does not permit copying of Microsoft software in any way, and no one should assume that.

It does suggest that you could purchase a new PC that had Windows on it, and that came with an OEM copy of Windows, and you could then erase Windows (by formatting the disk before agreeing to the EULA by clicking on it or accepting it in some deliberate way, for example). You could then legally sell the OEM copy that came with the PC and buy a copy of Linux, for example.

You could similarly sell a copy of Office (or games, or other software) that was bundled with the machine, as long as you didn't install or accept the EULA. For example, if you were replacing an older machine, and that machine had a legal copy of Office on it, you could delete the copy from the old machine, install that copy of the program (not the new one that you got) on the new machine, and then sell the unopened Office CD (and manuals, etc.) that came with the new machine.

But the important thing to remember is that any disks that you sell must have originally been purchased from the software vendor in some legal way.

For example, if the disks were bundled with your new machine, the computer manufacturer paid the software vendor for them. If a CD is not a legal, paid-for copy of the software, then it is not covered by this decision.

LicenseGuy

OEM disc

Anonymous's picture

If I understand you all correctly, you are saying that it is legal to resell the OEM disc that comes with the purchase of a new computer. In my case, all of the bundled software, including Windows, was on one disc.

How do you possibly sell it all? Further, don't the OEM discs have drivers, etc for their exact hardware? I had an older Compaq "restore" disc that would not install on my Gateway for example. So I'd have to track down a buyer with my same hardware to sell it to them? They probably would have the same disc, no?

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

Actually, it is not completely illegal to copy software. It is illegal to make copies for resell tho. Fedral law mandates that the legal owner has the right to at least one back up of any media. I do think tho if you are selling the software, the backups of the disks either have to be sold with it or destroyed. This applies last time I checked to ALL Software,

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

Except, of course, Free software, where the license itself permits you to distribute it.

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

Most of the comments have missed the real point of this ruling.

This ruling has 'Fair Market Value' implications.

Currently Microsoft sets the price of Windows

products. Even old version like win98, still sell

for their original price on a store shelf near

you.

If end users could sell unwanted copies of

Microsoft products on the open market, how long

would it be before a fair market value was

established?

Would Staples buy 1000 copies of winXP to sell

for $200+ when their customer's could go online to

a swap meet and buy winXP for $25?

Fair market value is the one true rule that all Monopolist

fear.

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

Of course you are assuming that Windows has any value at all, a point many of us dispute :-)

Re: ... that Windows has any value at all...

Anonymous's picture

i hate to break it to you, but when 99% of your customer base is using inferiour win technology, and you need 10% of your customer base to pay for your own technology - you build for what they use!

ever hear the rule "the customer is always right - even when they are wrong."

windows may not have value in and of it's self, but till you get busy and create a viable relacement solution, market that solution, and take over 95% of the market share... windows has value. or untill linux can produce food, and pay rent all by itself...

ken - ken@justken.net

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

Which of course, is exactly why Microsoft IS afraid of a fair market... or competition...

Why Does it Matter?

Anonymous's picture

Really, now.... OEM software in a box sold with a computer that quite likely has at least one piece of proprietary hardware in it... So, doesn't purchasing the hardware go against everything we "free thinkers" stand for?

We're the hippies of the modern age. Free software, free speech, digital rights. Doesn't sound too different from Free Love, Free Speech, Human Rights, does it? But... The hippies of old were at least strong enough to stand up for what they believed was right from all viewpoints.

There are ways to keep from having to deal with this crap. The same way that all business should work. *If you don't like the product, DON'T BUY IT!* A good example of this is my standpoint on the newest Jeep vehicle. The Liberty. As an avid off-roader, I am well aware of the flaws in the Jeep Liberty as an off-road vehicle. I'm not going to sue them over it, though, I'm just not going to buy it. You can do the same thing with computers. If you don't want a part of the package that comes with a computer, don't buy the computer. Build your own, go to a chop-shop, whatever, but don't whine when you can't get money back on piece of crap software that came with a piece of crap computer. I figure, you're aware of what you're getting when you buy it. Why on (God's/Allah's/Buddah's/Russ Martin's) Good Green Earth would you buy something you don't want????? If you really want that piece of hardware without the bundled software, write a letter to the manufacturer and tell them you don't want the software that comes with the hardware, is there any way to purchase the hardware at a lowered cost without the bundled software? Maybe if enough of us "stand up for what's right" in that respect, some of the hardware manufacturers will catch on and start offering two releases of their hardware. The mickey mouse version with worthless bundleware and the power user version with a slip of paper on the inside of the package that says "You want the drivers? Write 'em yourself, tough guy"

I don't see this as a revolution in the computer world, I don't see it as a step forward. Yes, I believe it is correct. First sale is first sale. If you buy something, you have a right to resell it. You also have a right to a warranty, *UNLESS THE MANUFACTURER SPECIFICALLY STATES THAT THERE IS NO WARRANTY* That little piece of work has held up in court repeatedly. So, where should this go? On top of the heap with the rest of the shattered dreams for the open source world. Please forgive me for my cynical view. I'm an open-source advocate myself, but I'm also a businessman, and I understand what will and won't happen with copyright and warranty law in this country. Sorry to be the bearer of bad news.

-Chris

(e-mail at: yj_jeep95SPAMEATSDONKEY*****@IHATESPAMMERShotmail.com... You should be able to tell which parts to remove)

CBDTPA

Anonymous's picture

I'm not going to sue [DaimlerChrysler] over [the problems with Jeep Liberty vehicles], though, I'm just not going to buy it.

What if only Dodge and Jeep vehicles were available, and all of them had safety flaws?

If you don't want a part of the package that comes with a computer, don't buy the computer. Build your own

Not possible if the CBDTPA (or any of its Broadcast Flag children) passes, and all hardware in a computer must be "trusted" or it won't boot.

The mickey mouse version with worthless bundleware and the power user version with a slip of paper on the inside of the package that says "You want the drivers? Write 'em yourself, tough guy"

And a contract stating that if you write your own drivers, you are in violation of the DMCA, and tampering with the tape that initially covers the device's connector is a symbol of your signature to such contract.

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

This is the best piece of legislative news I've seen in weeks. (Perhaps even months!)

I understand we're still a long way from it becoming the new "law of the land" - but it's a great start.

The "right of first sale" is being stomped on by companies like Microsoft, who insist on getting your eBay auctions banned if they so much as suspect you're trying to resell an unopened OEM edition of any of their products.

I fail to see how anyone can reasonably believe you've agreed to terms of a software license just because the still-unopened product is thrown in the box with a hardware purchase.

The lame argument that the "hardware and software are one product" doesn't hold water. If this were really true, the product would cease to function if the two parts were seperated. Obviously, this is untrue because Linux, or another alternate OS, can be installed on said systems, and they still function just fine.

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

It could be worse. Microsoft stops eBay auctions to make sure that they verify with the seller the authenticity of the item, which is a good thing for buyers like myself.

Symantec, on the other hand....I bought a shrink-wrapped copy of their Corporate Antivirus, and they told me that since I was not the original purchaser, that since I hadn't bought the box from either them or their distributor, and since it hadn't been registered within 60 days of original purchase, that I had no legal right to Upgrade Insurance or even to use the original software. Their response: "Buyer beware. Buy from our online store. *grin*" I'm contesting it, though, because the box was shrink-wrapped and never opened...how could nobody ever agree to a license if the box is never opened? Also, some of the restrictions they told me about are not mentioned anywhere on the box or in the printed license agreement.

Ebay Blunder

Chris's picture

I had a fun experience this last week. A bud of mine and I were talking on the phone and checking out ebay. He saw a multi-item auction that we both bid on. Both of us ended up getting a copy of adobe premiere pro 1.5.... or so we thought. He called me when his came in and we compaired notes. We tried to register our products with adobe.com and found that the keycode numbers were invalid. Adobe states on their site that they don't sell software that #1 has a sticker label, #2 is a cdr. Then we found that it was adobe's version 7, which is adobe premiere 1.0, not 1.5!!! Next was the kicker.... we both had the same keycode!!! So now we notice that the ebay seller musicproducer28 is unregistered from ebay when we go to leave feedback. Ebay gives us the contact info and we call Mr. Jeff Wells, who is asked about the keycode and told about our inability to register a so called "Unregistered" keycode with adobe, and that the software was fake cdr copies and that it was adobe 1.0... not 1.5 that was advertised . His reply was "What are you worried about... you got the product for alot less than what it's worth". He said that he bought bunches of bundles of them. We told him we'd give him the chance to rectify the situation by sending valid copies of the software, or refunding the purchase price and shipping. He said there was nothing to rectify, and then we told him that Andrew and I had compaired registration keys for the software and that they were identical.... Jeff Wells repied "I don't have time for this!" , and then hung up. We're in the process of supplying info to my wife's law firm, ebay, paypal, adobe.com, our lawfirm branch in California, plus that states district attorney, supreme court judge affiliated with the firm, and a few FBI friends. Even though the software didn't come as the version that was advertised, one lesson learned is that before you buy on ebay, do your research, and know what you are buying. We didn't know the cost of a retail version of premiere 1.5. If we did, we probably wouldn't have paid $40-50 for them. You can reply to ptstudios@rochester.rr.com if you have any further comments.

did you get the culprit??

Anonymous's picture

is jeff wells paying big time?

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

That sounds so familiar, like the IE+98 fiasco *g*

BTW, if M$ got in trouble for saying IE was part of the OS, why are they still doing it? :grr:

-uso.

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

What I find fsking hilarious is that I can sell any other part of the computer legally except for the operationg system. They say that the Operating system is a bundeld peice of the computer and therefore cant be sold. Wait a secound! The lcd screen is also a bundeled peice of the computer, but I could legally take out my chainsaw now and rip off the lcd screen and sell it on ebay without breaking any laws. There is something seriously wrong here and that court ruling finally confirms it.

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

The lame argument that the "hardware and software are one product" doesn't hold water. If this were really true, the product would cease to function if the two parts were seperated.

Anyway, this is just another instance of the fallacy that software (or systems) are somehow magically different than other products. It doesn't matter if the unbundled parts function or not. I buy a car, which is one product. I then part it out. The car ceases to function. Does the manufacturer sue me? Well, not yet, at least...

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

This case is heartening because it recognizes the RIGHT of the owner of a lawful copy to sell or resell it. This right is important for the public good, because it encourages wide dissemination of copyrighted works: You can buy and sell used books or even fish them out of a dumpster, and have the right to resell them. "Licensing" devices such as EULA's that require you to limit this federal right should be just as void as an employer extracting agreements from employees to give up their right to a minimum wage in exchange for a job - they should be ruled against public policy. Let's face it, some people cannot afford to buy new books, CDs, or computer software, but could afford used (legal) copies. It is critically important that we prevent copyright owners from controlling such resales, and reasoning such as in this case can help in the fight against "time limited" or "tethered" copies which you own, and have a right to sell, but can't find anyone to sell to because either the copy is timed out or it is bound to your computer. Finally, a refreshing legal analysis that does justice to copyright law as it was meant to be.

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

The link supplied is no longer correct, it gives a lotus notes "this document has been deleted error"

Can anyone offer mirrors (BIG mirrors, as you've now been slashdotted)

Sweet Irony

Anonymous's picture

The decision against Adobe is only available as a PDF. There's some irony in there someplace. :)

Re: Sweet Irony

Anonymous's picture

"The decision against Adobe is only available as a PDF. There's some irony in there someplace. :)"

and the PDF link no longer functions.... I want my money back! (the link didn't function as it was advertised to do. :-)

Re: Sweet Irony -- actually, no

Anonymous's picture

It is because Adobe produces royalty-free technology that we all benefit. E.g., there are numerous open source PDF reading and writing programs out there. Imagine if Microsoft controlled the open document standard?

Conclusion: When Adobe's legal department isn't involved, Adobe is a very good company IMHO.

Re: Sweet Irony -- actually, yes

Anonymous's picture

Just because you like them does not mean that this (a decision against them in a format they devised) is not ironic.

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

I have to mention that this *looks* impressive but isn't actually all that.
As a district court, it's a decision that's not really binding on anyone.
It will probably go to the circuit court (9th circuit) on appeal; if that
court upholds the ruling, it will then become binding upon FEDERAL
(not state) cases tried in the states that comprise the 9th circuit
(shown here). From there,
it may be appealed to the Supreme Court which, *if* they decide to hear
it and *if* they subscribe to the same philosophy as the district court,
it will become binding on all federal _and_ state courts.

It will be federal

Anonymous's picture

it will then become binding upon FEDERAL (not state) cases

All copyright cases are tried in federal court.

Re: It will be federal

Anonymous's picture

But this is a contract law case.

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

Exactly.

However, meanwhile over in the 7th Circuit, the law of the land is that "click-wrap" EULAs are enforceable, as decided in Pro CD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996). But in the 5th circuit, "shrinkwrap" EULAs have been NOT enforcable since 1988 and Vault Corp. v. Quaid Software, Ltd., 847 F2d 255 (5th Cir. 1988). Personally, I see no difference between "shrinkwrap" and "clickwrap", but the 7th Circuit did.

IMHO, the 7th Circuit wanted a certain result and tortured a false analogy to get it. The Pro CD case decision basically rests on the argument that other things are bought all the time with contractual terms that nobody reads, for example tickets and therefore that the sale of software is like the purchase of a ticket. What's wrong with this, IMHO, is that tickets and other such purchases are purchases of a service - "move me from here to there", "show me this movie", "let me watch this ballgame" etc. - all things that happen in real time that are subject to real world SNAFUs such as lost baggage or a rainout of the game. On the other hand, software is currently sold as goods and historically the sale of goods to the general public has NOT been contractual.

I think we're not going to have a clearcut answer until it goes to the Supreme Court...

Re: Softman v. Adobe: What it Means for the Rest of Us

dmarti's picture

This case doesn't cover what happens to someone who actually accepts the EULA. All that this case seems to say is that you can resell EULA-covered software when you don't want to use the software yourself, and don't accept the EULA.

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

Right now, it is a first step to what most people would see as common sense.

So, what would be cheaper if I buy a new computer (but which most people aren't likely to do), go buy a "backup" copy of WindowsXP, or buy a new HD to install it on, and remove the HD with the special "partition" on it that has the XP cabs on, assuming that they probably have to stay on that HD, so burning off that partition to CDROM is not feasible?

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

> From there,it may be appealed to the Supreme Court which, *if* they decide to hear it and *if* they subscribe to the same philosophy as the district court, it will become binding on all federal _and_ state courts.

If the SC decides not to hear the case, you get the same effect - the lower court's decision stands with the same wide scope.

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

That's wrong, i.e., the Bakke case in affirmative action still only applies to the 5th circuit b/c Supreme court decided not to hear the case. (Thus conflicting interps b/c circuits) Further, SC ruling does not necessarily apply to the states, just in the deliniation of where state power to interprete said law begins/ends.

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

The decision may not apply to the states, but that's largely irrelevant. Copyright law is exclusively federal in nature, and "EULA" violations can easily be spun as part of copyright law.

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

You are darn close to being correct. There is a small area in which states can still grant "Copyright" for works. That is for works that have not been fixed.

Federal Copyright law covers only fixed mediums. This can even include the choreographer's marks for a dance. However, if a dance performance is never written down, never videotaped etc., it would fail outside Federal Copyright. Thus, it would fit in that one small area not occupied by the Feds. On a similar note, states can still issue trademarks, but their protection is almost meaningless.

To give an illustrative example using the dance scenario: A secret society performs a complicated ritual in a manner passed down in strict oral form, having never been written down or filmed. A state law could grant such works perpetual copyright, while the federal copyright would be "for limited Times[.]"

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

What a wonderful way to fund your LUG/favorite open source project. Now what we need is someone to act as a central sales agent; sell mass orders of things that people send back to them and give all the money to something good.

Dave

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

I've read a lot of people commenting on the validity of EULA's and software licences in general. The anti software licences take (generally) two forms

  • When I buy software I own it
  • The NO~WARRANTY clause is invalid

The Judge seems to have ruled that when you buy software you own it. It's like buying a car. My car manufacturer cannot refuse to accept warranty for the defects in my car. So if I bought and ran a software product and it crashed and caused me to loose data, how can the software manufacturer refute my warranty?

This has implications for everyone selling software, you now may be liable for any data loss your software causes. The law in my country states that goods or services sold should be of merchantable quality. How can a software product be legal if it crashes (is faulty)?

Of course if you release under a free software licence there is no sale, so you cant be sued for providing bad software. Or maybe I'm wrong?

balor

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

Because the manufacturer is not obligated to provide a warranty of any kind. This is, however, not true in all states as some states have differing consumer protections that provide some reparations in the event you have an issue with the product caused by the product.

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

he Judge seems to have ruled that when you buy software you own it.

Not quite. I think its more akin to buying a book or a CD. You own the physical media upon which its distributed, but you don't own the content. Thus reselling the media is legal (assuming you didn't copy the content somewhere else), but you do not own the content (you can't make copies and sell them).

This, IMO, is still a very good ruling (if it holds up) because its basically saying that there are limits upon what a software publisher thinks they can make you do with the software you've bought (licensed?). But I see how they can get around it. Stop providing media. (Microsoft has already done this on WinXP preinstalls, all the cab files are on a small HD partition). No physical media, nothing to resell.

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

You could still sell or trade the harddrive and be within the limits of the law

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

I brought a Gateway computer in Australia - It came pre-installed with win98 - I could sell the OS if I wanted to - but it seems that Either Gateway or MS has locked the copy of windows to the Mother board - Thus it will not even run on another computer.

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

No physical media? You're allowed by law to back it up - there's your physical media, dude!

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

I believe the difference is based on something called the "warranty of merchantability". This basically says that the product I am selling will work as I said it would. So when Ford or GM sells you a car, the car has to work. If it doesn't, they have to fix it until it does. That's the basis for the so-called "lemon laws".

If the maker explicitly says in its product documentation that the product is not guaranteed to work, the manufacturer is opting out of the "warranty of merchantability". That means if their product is pure crap you have no recourse to get compensated if it trashes your machine.

BTW, every software license I ever read said that the maker did not warrant his product to work.

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

You can still sell software and not have it fall under the "warranty of merchantability". It's called "as is". And, most licenses do say this. Too bad most software is advertised as being able to do something.

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

But remember, in a lot of states the vendor is <i>not</i> legally allowed to disclaim the implied warranty of merchantability. You'll see that in a lot of consumer-goods warranties, where right after the disclaimer they note "Some states do not permit disclaiming the implied warranties of merchantability or fitness for purpose. The above disclaimer is void to the extent that it is not permitted by law.". So the vendor's on the hook regardless of what the EULA says.

Re: Softman v. Adobe: What it Means for the Rest of Us

Anonymous's picture

Before you get too annoyed at the lack of warranties, remember that there are at least as many unreasonable users as vendors. Provide a warranty and you'll not just have people arguing fine details of the ISO standard, you'll have people demanding support because their disk was full and the installation was incomplete and that's why they can't compile the "hello, world!" program.

Or worse, people tying up your support line because your compiler can't handle the example code in "C 4 idiots" - code which includes a typographical error like a ":" instead of a ";".

I agree that too many companies turn a blind eye towards real defects, but it's not a one-sided issue.

Re: Softman v. Adobe: What it Means for the Rest of Us

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LIMITATION OF LIABILITY AND REMEDIES

Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of Microsoft and any of its suppliers under any provision of this EULA and your exclusive remedy for all of the foregoing (except for any remedy of repair or replacement elected by Microsoft with respect to any breach of the Limited Warranty) shall be limited to the greater of the amount actually paid by you for the SOFTWARE PRODUCT or U.S.$5.00.

Webinar
One Click, Universal Protection: Implementing Centralized Security Policies on Linux Systems

As Linux continues to play an ever increasing role in corporate data centers and institutions, ensuring the integrity and protection of these systems must be a priority. With 60% of the world's websites and an increasing share of organization's mission-critical workloads running on Linux, failing to stop malware and other advanced threats on Linux can increasingly impact an organization's reputation and bottom line.

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Sponsored by Bit9

Webinar
Linux Backup and Recovery Webinar

Most companies incorporate backup procedures for critical data, which can be restored quickly if a loss occurs. However, fewer companies are prepared for catastrophic system failures, in which they lose all data, the entire operating system, applications, settings, patches and more, reducing their system(s) to “bare metal.” After all, before data can be restored to a system, there must be a system to restore it to.

In this one hour webinar, learn how to enhance your existing backup strategies for better disaster recovery preparedness using Storix System Backup Administrator (SBAdmin), a highly flexible bare-metal recovery solution for UNIX and Linux systems.

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Sponsored by Storix