Second Hand Software Ruling

[Scottish Business Owner]

Came across this really interesting Story today regarding the sale of second hand software. I see people trying to sell this alot on Ebay etc and whilst i've never bought second hand software as such it strikes me that the ruling in this case could actually cause some issues for alot of people. Link below to the article.

Court ruling could cripple second-hand software business - V3.co.uk - formerly vnunet.com

Be interesting to hear other people's thoughts on this.

 

[Mike Lewis]

I see this is a US court decision. I doubt if a Scottish or other European court would make the same ruling. Still, it will be worth following this case as it works its way up the system.

Mike

 

[stugster]

I suppose it depends on where the software was developed as to what regulations follow, does it not? I'm not sure. If you've got a copy of Adobe Photoshop, is it not the USA laws that you accept and bind into?

I'm as yet undecided about software in general. Part of me is pro open-source and the wondrous benefits it has to offer, the other part of me says that to make proper money it has to be sold.

 

[Mike Lewis]

If you've got a copy of Adobe Photoshop, is it not the USA laws that you accept and bind into?

I wouldn't have thought so. The contract for the purchase would be governed by the laws of the country where the purchase was made. The purchase is a contract between the customer and the seller. Adobe don't enter into it, unless you bought it from them direct.

As far as criminal law is concerned, if someone illegally pirates a copy of Photoshop, they would be subject to laws of the country where the crime took place. Again, the nationality of the copyright holder wouldn't come into it.

At least, that's my non-expert opinion.

Mike

 

[stugster]

But isn't software like Photoshop actually a licence to use it, rather than a sale of a product?

I'm not an expert in the field either, but it'd be interesting to find out.

An example from Adobe's website:

"Adobe products are not sold; rather, copies of Adobe products, including Macromedia branded products, are licensed all the way through the distribution channel to the end user. "



Found it:

10. Governing Law.
If you are a consumer who uses the Software for only personal non-business purposes, then this agreement
will be governed by the laws of the jurisdiction in which you purchased the license to use the Software.

[edit]
If
you are not such a consumer, this agreement will be governed by and construed in accordance with the
substantive laws in force in: (a) the State of California, if a license to the Software is obtained when you are
in the United States, Canada, or Mexico; or (b) Japan, if a license to the Software is obtained when you are
in Japan, China, Korea, or other Southeast Asian country where all official languages are written in either
an ideographic script (e.g., Hanzi, Kanji, or Hanja),and/or other script based upon or similar in structure to
an ideographic script, such as hangul or kana; or (c) England, if a license to the Software is obtained when
you are in any jurisdiction not described above.

 

[Mike Lewis]

Stuart,

I admit I might be totally wrong about this, but just because Adobe say you don't own the software doesn't make it so.

As I understand it, a software vendor doesn't write the law (obviously). It can only seek to impose its will by means of contractual terms, which the purchaser must agree to.

There are two problems with that. First, if I buy a copy of Photoshop from PC World, my contract is with PC World. Adobe have no say in the matter.

Secondly, contractual terms can only be enforced if both parties are aware of them, and agree to them (implicitly or explicitly) in advance. To uphold this particular point about not owning the software, PC World would have to demonstrate that it made me aware of that condition, perhaps by displaying it prominently on the outside of the box (not in a small-print leaflet inside which is not visible before opening the box).

Or perhaps they could argue that the concept of buying a licence rather than the product was so common and well-known that it was implicit in the contract.

I'm not commenting on the rights and wrong of this. What I'm saying is that it would have to be interpreted by the courts, and that would mean the courts in the jurisdiction where the purchase took place, which is why I think the decision a US Circuit Court wouldn't be relevant to the situation is Scotland.

No doubt one of the legal experts here will squash my argument.

Mike

 

[Mike Lewis]

I hesitate to pontificate further on this, but I've just been reading some more about the case (the one that gave rise to the judgement under discussion).

It seems that a key factor was that the plaintiff (Timothy Vernor) didn't simply buy a copy of the software and then sell it on. He apparantly already owned a legal copy. He later bought an upgrade, and then sold the original copy and kept the upgrade.

In those very specific circumstances, there might be a claim that he was infringing the terms of the upgrade. I can't say what the rights or wrongs of that would be. But it might be that, because of these special circumstances, this particular judgement won't affect any more general cases of someone buying software and then simply re-selling it.

Mike