Robert said:
Actually I have 3 computers.
1 for internet etc. Another for pro audio stuff, and a
laptop for work.
I recently purchased Win XP upgrade only to find out that
apparently I can only load it on ONE computer.! Can this
really be true? You mean I have to buy 3 copies of this
upgrade to make it happen for each computer?!
I've not yet installed it on anything hoping someone will
tell me this is not actually the case.
Anybody?
It's what MS thinks they can get away with under their post-sale EULA,
but there is a copyright law that protects your right to install the
copy of software, that you own, on your computers.
Aren't shrinkwrap licenses legally enforceable?
Generally, the answer to this is yes, but they can't be unreasonable nor
violate the law.
Circuit Judge EASTERBROOK for the United States Court of Appeals For the
Seventh Circuit wrote:
"Shrinkwrap licenses are enforceable unless their terms are
objectionable on grounds applicable to contracts in general (for
example, if they violate a rule of positive law, or if they are
unconscionable)." -
http://www.law.emory.edu/7circuit/june96/96-1139.html
How is MS EULA unconscionable? "This software is licensed not sold."
This sentence is the basis for MS's claim of turning a shrinkwrap
license, into a software license. Unfortunately with a copy of retail
software, it is sold, and there is a receipt to prove it.
The receipt doesn't say anything about a software license, just the NAME
of the SOFTWARE. And the previous owner of that copy of software, the
retail store owner, wasn't a licensee of that copy of software either,
but the owner! And guess what? The retail store owner was sold that
copy by the previous owner, the wholesaler. So there were at least 2
owners of that copy of software between MS and the guy who is sold the
software.
Now MS wants people to agree that reality didn't happen at least three
times since MS originally SOLD the copy of software. LOL! Denying
reality happened three times! Sounds unconscionable to me!
People own every single retail product they buy, and there is no legal
precedent that says anything to the contrary! That is the legal status
quo at the present!
Oh, and one more thing, your TV came with a shrinkwrap license too!
Would you believe it if the TV's shrinkwrap license said that the TV was
license not sold?!
MS's post-sale EULA is not a legitimate software usage license, that
only confers limited rights to use a copy of software, but is only a
shrinkwrap license on a retail copy of software, which is sold to the
new owner of that copy by the retailer. Congress put certain
limitations on the rights of copyright owners, in other words, they gave
owners of a copy the right to infringe in certain circumstances. [And
under certain circumstances one does not even need to be an owner of a
copy in order to legally infringe, though none of those circumstances
are applicable to this discussion.]
What is a copy? "'*Copies*' are material objects, other than
phonorecords, in which a work is fixed by any method now known or later
developed, and from which the work can be perceived, reproduced, or
otherwise communicated, either directly or with the aid of a machine or
device. The term 'copies' includes the material object, other than a
phonorecord, in which the work is first fixed." -
http://www4.law.cornell.edu/uscode/17/101.html
Owner of Copy and owner of Copyright are two separate & distinct things
under Title 17. Copies are material objects, or property, and Copyright
is not.
"Section 202. - Ownership of copyright as distinct from ownership of
material object - Ownership of a copyright, or of any of the exclusive
rights under a copyright, is distinct from ownership of any material
object in which the work is embodied. Transfer of ownership of any
material object, including the copy or phonorecord in which the work is
first fixed, does not of itself convey any rights in the copyrighted
work embodied in the object; nor, in the absence of an agreement, does
transfer of ownership of a copyright or of any exclusive rights under a
copyright convey property rights in any material object." -
http://www4.law.cornell.edu/uscode/17/202.html
Which brings us to Title 17 Chapter 1 Section 117, and MS's post-sale
attempt to rewrite it through a shrinkwrap license. The copy of
software is sold to you, thus you are the owner of a copy, and Congress
through Copyright law gave owners of a copy of software the right to
infringe.
http://www4.law.cornell.edu/uscode/17/117.html
What law does MS's EULA violate?
Title 17, Chapter 1, Section 117. - Limitations on exclusive rights:
Computer programs
(a) Making of Additional Copy or Adaptation by Owner of Copy. -
Notwithstanding the provisions of section 106, it is not an infringement
for the owner of a copy of a computer program to make or authorize the
making of another copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as an essential step
in the utilization of the computer program in conjunction with a machine
and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival purposes only and
that all archival copies are destroyed in the event that continued
possession of the computer program should cease to be rightful.
The following is a translation of Section 117 (a) from the legalese
using MS's own definitions:
Title 17 Chapter 1 Section 117. - Limitations on the exclusive rights of
Copyright Owners: Computer programs
(a) Making of Additional Installation by the Owner of a Copy of
Software. - It is not infringement for the owner of a copy of software
to make another installation provided:
(1) that such a new installation is made as a necessary step in making
use of the software together with a previously unknown computer and that
it is used in no other manner, or
"(2) that such new copy or adaptation is for archival purposes only and
that all archival copies are destroyed in the event that continued
possession of the computer program should cease to be rightful"
Installation -
http://encarta.msn.com/encnet/features/dictionary/DictionaryResults.aspx?search=adaptation
made -
http://encarta.msn.com/encnet/features/dictionary/DictionaryResults.aspx?search=created
necessary -
http://encarta.msn.com/encnet/features/dictionary/DictionaryResults.aspx?search=essential
making use -
http://encarta.msn.com/encnet/features/dictionary/DictionaryResults.aspx?search=utilize
together with -
http://encarta.msn.com/encnet/features/dictionary/DictionaryResults.aspx?search=conjunction
a previously unknown -
http://encarta.msn.com/encnet/features/dictionary/DictionaryResults.aspx?refid=1861582871
or -
http://encarta.msn.com/encnet/features/dictionary/DictionaryResults.aspx?search=or
What words mean does matter! Only a total buffoon would even try to
argue otherwise!
MS has yet to prove they have the right to enforce their One Computer
nonsense in the privacy of any individual's home in a real court of law.
Why? Because a majority of the Supreme Court agreed that "Any
individual may reproduce a copyrighted work for a"fair use"; the
copyright owner does not possess the exclusive right to such a use." -
http://laws.findlaw.com/us/464/417.html
Until there is some definitive legal precedent that clears this all up,
one way or another, shouldn't each individual decide for themselves what
they can and can not do with the copy of retail software that was
legally SOLD to them by the previous owner of that software?!
--
Peace!
Kurt
Self-anointed Moderator
microscum.pubic.windowsexp.gonorrhea
http://microscum.kurttrail.com
"Trustworthy Computing" is only another example of an Oxymoron!
"Produkt-Aktivierung macht frei!"
