Court Once Again Confirms Right Of First Sale For Software: You Own It, Not License It

from the good-news dept

Excellent news. In the ongoing case involving Autodesk and a guy, Timothy Vernor, who was trying to sell legally acquired used versions of AutoCAD on eBay, the district court judge has ruled that Autodesk has no right to restrict the sales of its used software. This wasn't a huge surprise, as the court indicated as much last year, when it refused to grant Autodesk's motion to dismiss the case. But this is an important ruling for a variety of reasons. Beyond just reiterating the well-established right of first sale on software, it also helps clarify that when you by a piece of software, you own it, rather than just license it. As the judge noted:

"The transfer of AutoCAD copies via the license is a transfer of ownership."

The judge also mocked Autodesk's claim that allowing such sales to go forward promoted piracy:

"Vernor's sale of AutoCAD packages promote piracy no more so than Autodesk's sales of the same packages."

Autodesk, of course, will likely appeal the ruling, so this isn't done yet. But, so far, this is definitely good news.

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Ownership Or License: The Difference Matters

from the quantum-bullshit dept

Those who rely on copyright like to do a neat little trick at times. When it's convenient, they like to claim that what they're offering is no different than a physical good. In such situations, if you make a copy, they claim that you "stole" it, and that it's "no different" that walking into a store and taking something off the shelf without paying for it. Yet, at other times, if you point out the sorts of restrictions that would lead to -- such as no control over the product post-sale -- suddenly they change their tune. You didn't buy the product, you merely "licensed" it, and thus they could post sale restrictions on things. If you buy a chair, and then build a replica yourself, that's perfectly legal. But copyright holders claim that's not the case when it comes to products covered by copyright -- because they insist that it's "licensed" not "owned."

Luckily, the courts have long pushed back on this attempt by copyright holders to extend copyright's power beyond what happens with physical goods. That's why, for example, we have a right to first sale, allowing you to resell a book. The copyright holder cannot claim that you only "licensed" the book, rather than bought it, so you are, in fact, allowed to resell it. But the law isn't entirely clear on all aspects of this, and software "licensing" is one key area where there are some problems.

A few years back, Blizzard sued the maker of a bot, the Glider bot by MDY, claiming that the software violated its copyright. Now, even many who are against abuses of copyright, emotionally started to side with Blizzard here, due to what the bot allowed: it effectively allowed cheating, by automating many repetitive tasks, to let users "level up" more quickly. But, if you get past that element, the case has important implications for copyright law, and whether or not the software you buy is really purchased... or merely licensed.

The district court ruling was incredibly problematic. Nothing the guy actually did with the bot software appears to violate copyright law. Basically, the court just decided that it didn't like what the guy did, and thus it used copyright law to shut him down, though it used rather tortured reasoning. This sets an incredibly bad precedent and seems entirely at odds with the purpose of copyright law itself.

The case is now being appealed, and Public Knowledge has filed an amicus brief while the EFF explains what's at stake:

Ownership matters, because otherwise Blizzard and other software vendors can wipe away important consumer rights with legalese contained in license agreements. For example, in Section 117 of the Copyright Act, Congress gave owners of computer software the right to use their legitimately purchased software without having to rely on permissions in license agreements. Blizzard and other software vendors are arguing that customers are not owners, but mere licensees, in an effort to eliminate our rights under Section 117.

This "owner-versus-licensee" trick is not just an end-run on Section 117, it's inconsistent with the law in other areas--the courts and Congress have long rejected efforts by copyright and patent owners to impose all kinds of post-sale use restrictions on books, patented machines, and compact discs. Why should software be different? Just as with those other copyrighted works, if you bought the disc that the software comes on outright (as opposed to leasing it, for example), you should get the privileges of an owner (i.e., the right to resell and the right to make copies and adaptations as necessary to use software).

In short, Blizzard's legal arguments here are all about using copyright law to take away consumers' rights in the software they purchased.

Hopefully, the Appeals Court recognizes this. Copyright owners shouldn't be able to play a quantum game of calling something "owned" when it suits them or "licensed" at other times when it suits them.

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French Court Finds Violation Of GPL... Despite No Involvement Of Copyright Holder

from the interesting... dept

Guerby alerts us to the news that a French Appeals Court found that education tech company Edu4 violated the GPL by distributing a version of VNC without offering up the source code (and removing the GPL copyright notice). As the announcement notes, one interesting factor here was that it was filed by Edu4's customer, an education group, not the copyright holder. While it's nice to see a legal win for open source software, this does raise some questions. My guess is that the rationale is that this isn't a copyright case, but a licensing case. Thus the education group, AFPA, can actually be a party to the lawsuit. Still, it does raise questions over who has the right to make sure the GPL is enforced.

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Is Creative Commons Bad For Copyright?

from the taking-people-away-from-the-issue dept

Copycense has a rather thought-provoking editorial pondering whether or not Creative Commons is good or bad for copyright. I have to admit that I've long felt similarly about Creative Commons in general. I don't use any of their licenses, because I don't necessarily see the point. We've declared in the past that the content here is free for anyone to do what they want with it, and thus I feel no need for a Creative Commons license. But, at the same time, there were some underlying issues about CC that have bothered me, concerning its continued reliance on copyright as a basis for making it work. I admire the folks behind it and the very idea of using copyright itself to carve out a more reasonable way of dealing with it, but I've always wondered if the use of Creative Commons, while a nice solution for many users, helps to cloud the problems with copyright law. This is the same point Copycense makes, noting that one of the major problems with it is that it takes copyright out of a policy debate, and makes it a contractual issue.

Copycense was okay with this in the past, back when it seemed unlikely that there would ever be a real national debate on copyright, but given recent events in Canada, it seems that such discussions can actually occur:

We conclude now... that the continued use and prominence of Creative Commons licenses actually obscures the real copyright issues we face in this country, and keeps Americans from settling on the proper parameters of digital information use, access, retrieval and preservation in the 21st century. It is too easy for a creator to slap a CC license on a copyrighted work, promote one's apparent knowledge of (and sensitivity to) copyright issues through a CC badge, and feel good about oneself, almost like the purchase of hybrid vehicle becomes one's outward signal to society that its owner is dedicated to stopping global warming.

Indeed, there seems to be a whole aura attached to using a CC license -- or perhaps more specifically, slapping that CC badge on a copyright-protected work -- because it seems to signal that the person using the license is thinking progressively about intellectual property, information policy, and related issues....

But we believe the real question to be asked is how we can calibrate copyright law to make it equally usable by, and effective for, all Americans. To this end, we believe the use of CC licenses actually avoids the question of what U.S. copyright should be in the 21st century, and how the law should best serve its citizens, who now are as likely to be creators of copyrighted works as your average conglomerate record label. This avoidance is particularly problematic given the prominence and use of CC licenses; the organization's position -- real or perceived -- as the antidote to a broken copyright system; and the very real possibility that few who use the licenses really know what they mean....

As Canada is doing now, the U.S. needs to have deep, complicated, and perhaps even painful conversations about information policy; the history, purpose, uses and scope of copyright law and policy in our digital information ecosystem; and the reform that needs to happen in both areas.

We do not believe the Creative Commons license scheme fosters that conversation. Instead, we believe the scheme muzzles this conversation by promoting a contractual bargain in lieu of balanced and calibrated legislation and policy. We hope that in the future, Creative Commons will put more of its considerable intellectual and economic resources toward resolving the problems with copyright law instead of promoting contractual workarounds. In the best case scenario, with a balanced and effective law that serves citizens and corporate owners equally well, a Creative Commons license is unnecessary. This should be the goal.

There's a lot more at the link, but I did want to pull out those sections, as making some points worth thinking about. While I always cringe at calls for "balanced copyright" -- which I think misses the point of copyright (a truly successful copyright law involves making everyone better off, rather than "balancing" interests) -- it is worth thinking about Creative Commons impact on the debate over copyright.

But... I'm not sure that I would go as far as Copycense in condemning Creative Commons. Many of the people behind it went through (and are still going through) numerous battles to push back on the excesses of copyright. Creative Commons wasn't the solution -- it was a helpful (and hopefully temporary) oasis in a bleak desert, following numerous well-reasoned, but ultimately futile attempts to push back corporate expansion of copyright. And while I agree that there are problems with shifting the issue to a contractual agreement (and the post highlights some of the many legal problems CC licenses may cause), I think that CC, as a whole, did turn a lot more people onto the some of the problems with copyright law as it stands today. In many ways, CC is an easy way for people to first start to understand the problems of copyright law, in understanding why CC is needed.

From there, many who do understand this have started questioning the larger issues around copyright -- and many of those involved with CC have continued to fight that good fight, rather than just assuming that CC is "the answer." So, in the end, I agree that we should be clear to recognize that Creative Commons and efforts to really rethink copyright are two separate things, but that doesn't mean that Creative Commons is necessarily bad for copyright policy issues. It has been, and hopefully will continue to be, a real stepping stone to getting more people to recognize these bigger issues. In fact, I'd argue that many of the folks now leading the debate for more reasoned copyright policy in Canada first came to understand these issues via their exposure to Creative Commons' licenses.

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Why Does Lego Get To Stop Spinal Tap From Using Lego Video?

from the answer:-no-good-reason dept

We recently wrote about the ridiculous job for lawyers making sure no unauthorized brands appear in a movie -- which doesn't have much of a legal basis. But, for some reason, companies back down on that sort of stuff all the time. The latest example involves the classic mockumentary band Spinal Tap, who is putting out a new DVD, where they thought (correctly) that it would be cool to include a fan-made video of one of their "hits," "Tonight I'm Gonna Rock You Tonight." The video was made by a then 14-year-old and was a stop-action video involving a lego version of the band and its fans:

Now, from Spinal Tap's point of view, this is a very cool way of connecting with fans: making use of a cool video in their DVD. In fact, they even played it up, and during a live performance where the video was shown, got real-life fans to mimic the lego fans, by holding their hands in the infamous "C" position of the plastic lego figures. But, of course, the lawyers got in the way. Lego objected to some of the words in the song and denied the use of the video on the DVD (oddly, the DVD still shows the fans with their hands, though it no longer makes any sense). But the real question is why Lego was even consulted. As Kimberley Isbell notes, Lego doesn't seem to have a legal leg to stand on here:

Lego justified its stance by citing the "commercial" nature of the Spinal Tap video.  But can Lego really prohibit the use of their products in commercial videos?  If you ask the federal courts, the answer is likely "no." It's a lesson that Mattel has repeatedly had to learn the hard way.

But that hasn't stopped trademark and copyright owners from trying. The court summarily rejected Wham-O's claims against Paramount Pictures for the unflattering use of its Slip 'N Slide toy in the movie "Dickie Roberts: Former Child Star." Caterpillar likewise had its claims against Walt Disney (relating to the portrayal of the brand in the oh-so-popular movie "George of the Jungle 2") shot down. Similar claims by Emerson Electric Co. (makers of the In-Sink-Erator garbage disposal) and the Canadian folk band the Wyrd Sisters also failed to go anywhere.

But, unfortunately, the people putting together the Spinal Tap DVD did, in fact, cave in, and the video has not been included.

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Why Should You Need A Special License To Run An Arcade?

from the silly-laws dept

Adam Thierer notes that Amherst NY has rejected an attempt by a Chuck-E-Cheese get a "game license," which makes him ask why anyone should need a special license to run a video arcade? He points out that this is basically a money grab by the town, which makes a lot of money off such licensing fees -- while also pointing out that if the city's concerns are legit (they claim worries about little kids playing violent video games) there are numerous ways to deal with that, from content rating systems to (gasp!) parental responsibility.

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Thomson Reuters Sues George Mason University For Making Its Software Output More Useful

from the how-dare-they! dept

A bunch of folks have been submitting the news that financial information giant Thomson Reuters is suing George Mason University for the high crime of releasing some software that can convert the output of Thomson Reuters own EndNote software into a more open format. EndNote is software for creating bibliographies, from a variety of different databases. The George Mason software, Zotero, does the same thing -- but also will take documents saved in EndNote's proprietary format and save it in its own open format. In normal times, under normal laws, this shouldn't be a problem. Reverse engineering is considered a perfectly legitimate practice in most cases -- and, in fact, is considered an important part of the competitive market in driving innovation. But, thanks to the DMCA, when it comes to software, this type of behavior can be blocked within a license agreement. This is one of the worst parts of the DMCA, in that it's clearly not about protecting copyrighted material, but about preventing any sort of competition in the market place.

If Thomson Reuters execs actually thought about this, they would realize that Zotero actually makes EndNote more valuable by making the output more valuable. As long as Thomson Reuters is willing to keep adding more and better features, then it should have nothing to worry about from Zotero, who only enhances the value of EndNote's output. Instead, Thomson Reuters is using the old claim of felony interference with a business model to shut down a university-produced open competitor. Thomson Reuters' claims make this quite clear, in saying that Zotero is "destroying the EndNote customer base." Back here, in the real world, most people call that competition and think it's a good thing, rather than against the law.

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Blizzard Bot Ruling Sets A Dangerous Precedent On Copyright

from the not-a-good-thing dept

Earlier this year, we wrote a couple times about how World of Warcraft maker Blizzard was suing a bot maker. In that case, Blizzard was claiming that the bot maker (which let users automate certain tasks to quickly rise up in experience level) was violating its copyrights first by getting around the copy protection on its own spybot (which tries to prevent such automation) and then by not obeying the terms of the license agreement. As we pointed out in May, if the court ruled in favor of Blizzard on the license agreement question, it would effectively ignore the right of first sale by letting any company simply announce that it wasn't selling its product, but licensing it -- and then create all sorts of rules well beyond what copyright allows.

Unfortunately, the judge has now sided with Blizzard in a summary judgment on this issue. The one bit of good news is that it rejected the DMCA part of the claim, saying that the bot maker did not violate the anti-circumvention clause. However, the rest of the ruling is quite troublesome. Basically, the court ruled that as long as a company selling you a product says it's only licensing you the product (even if every other aspect of the sale appears to be a sale), then it can set pretty much whatever rules it wants -- and if you violate them, charge you with violating copyright. This leads to some really tortured reasoning, because, as William Patry notes, nothing the guy did actually violates copyright. Instead, the court had to spend eight pages trying to piece together two separate parts of the license agreement to make a case that copyright was somehow violated.

This ruling flies in the face of other recent rulings that found that just because a company claims it's only licensing you a product, it doesn't mean that it's true. There was the Autodesk ruling, saying that a software sale is a software sale, and the used promo CD ruling that says record labels don't get to put extra copyright restrictions on promo CDs just because they write something across the cover. Unfortunately, the judge in this case decided otherwise. Not only does this result in bad policy (now anyone just needs to say they're licensing you something rather than selling it, and they can put additional restrictions beyond copyright on it, effectively dismantling copyright) but it's also a misreading of the law itself (despite what the court says). Hopefully, it will be overturned on appeal.

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