|
PureBytes Links
Trading Reference Links
|
Dear Bill & Group,
I respectively suggest that your reliance on the case discussed in
http://www.theregister.co.uk/content/4/23073.html (Softman Products Company,
LLC v. Adobe Systems Inc., 171 F.Supp. 2d 1075, CD Cal, 2001) for the
proposition that EULA sales restrictions are dead as against a consumer may be
premature. The circumstances of Softman were as follows:
1. Adobe sold bundled (ie, collections of) software to distributors, all
subject to a EULA ("end-user license agreement").
2. The Adobe EULA provided among other things that by installing the software,
the user agreed to its terms.
3. Softman (doing business as "www.buycheapsoftware.com") bought such bundled
software from an Adobe distributor at wholesale; unbundled it; and sold the
individual, unbundled pieces of software as single products to consumers at
retail.
4. Adobe applied to the Court for a preliminary injunction against Softman,
barring Softman from continuing its unbundling and sale of individual pieces of
Adobe software. Adobe claimed that by unbundling and distributing its software
as it was, Softman had violated the EULA and infringed Adobe's copyright,
specifically, Adobe's right to distribute and control distribution of its
software.
5. After hearing oral argument and considering the parties' pleadings, the
Court found, among many other issues, that the EULA was not enforceable against
Softman, because (a) for an agreement, such as a EULA, to be enforceable
against a party, that party must consent to it; (b) assent for the Adobe EULA,
by its own terms, required installation of the software; and (c) here, Softman,
as an intermediary distributor, only unbundled and resold the software --- it
never installed it --- therefore, because Softman never installed the software,
it was not subject to the Adobe EULA.
6. Accordingly, the Court denied Adobe's application and vacated the
preliminary injunction that it had previously granted to Adobe.
7. As regards the Adobe EULA and a consumer, the Court specifically opined
"... there is only assent on the part of the consumer, if at all, when the
consumer loads the Adobe program and begins the installation process."
Consequently, the Softman case is limited to its unique circumstances, namely,
given Adobe's EULA (which provides for assent by installation of the software)
and Softman (an intermediary distributor who buys bundled software from a
distributor at wholesale, unbundles it, and sells the individual products to
consumers at retail), can Adobe obtain a preliminary injunction against
Softman? This Federal District Court said "No." The underlying issues have
not been settled on their merits. Adobe has only been denied an injunction ---
its remedy is now to file suit against Softman on the underlying merits. What
this Court has said is that it does not believe Adobe would prevail in such a
future case --- but that future case is not this case, which dealt solely with
whether Adobe's case was so strong, and Softman's activities were so damaging
to Adobe, that Softman should be prevented from carrying on its activities (ie,
be enjoined) before that future case can be heard and decided. Furthermore,
the issues of the enforceability of Adobe's EULA against a consumer of Adobe
software (ie, someone who actually installs the software) and the
enforceability of EULAs in general (such as the TradeStation EULA) remain to be
determined.
I am fearful that my note has given you 99 times (or more) what you wanted to
know about EULAs in general and the Softman case in particular. I offer as
meek consolation that if we damn lawyers were not so damn verbose, how would we
make any living? Might we have to trade, instead?
Sincerely,
Richard
Bill Wynne wrote:
> >Order is maintained by fear of legal
> >reprisal and the licencing agreements (more like commandments). And,
> >like Microsoft's customers, Omega licencees are compelled to play along
> >....
>
> Or not. Si Dawson posted the link below on the QCharts list in response
> to a question by me:
>
> >are the software license agreements actually legal, much less
> >enforceable?
>
> "The answer is (officially) no:
>
> "US court ruling nixes software EULA sales restrictions""
>
> http://www.theregister.co.uk/content/4/23073.html
>
> the essence is:
>
> "..consumers should have the same rights they'd enjoy under existing
> copyright legislation when buying a CD or a book. They can't make copies,
> but they can resell what they own..."
>
> BW
>
> >From: John Nelson <trader@xxxxxxxxxxxxxxx>
> >To: Phil <rhodes@xxxxxxxxxxxxxx>
> >CC: <omega-list@xxxxxxxxxx>
> >Subject: Re: bootleg ts
> >Date: Mon, 17 Dec 2001 19:37:44 -0500 (EST)
> >
> >
> >The more draconian Omega's licencing restrictions become, the more
> >customers they will lose. Like Microsoft, they do not forment trust or
> >loyalty among their subjects. Order is maintained by fear of legal
> >reprisal and the licencing agreements (more like commandments). And, like
> >Microsoft's customers, Omega licencees are compelled to play along because
> >there are no alternative products.
> >
> >Companies that treat their customers like food animals, and keep them in
> >this state through draconian licencing can only fail. These companies
> >either collapse under their own weight or the people rebel against the
> >oppressors. Alternative products will arise to fill the niche and
> >hopefully put the people on a better footing.
> >
> >- John
> >
> >
> >
|