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