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Dear Bob & Group,
I have no problem with anything in particular with your comment, but I would
like to share a thought that came up for me upon reading your last paragraph,
where you said "I don't think anybody is complaining about licensing
TradeStation. They are complaining that permission to transfer the license is
being unreasonably withheld..."
It's been several years, but if my memory serves me correctly, I believe I
recall that the issue of TS transferability came up many years ago and was
discussed in this newsgroup. Then, the issue was not so much whether Omega
would recognize such a transfer, for example, by providing tech support and
updates to the third party transferee, but whether the transfer could be made
at all. If my recollection is correct, Omega foreclosed this discussion by
announcing, perhaps even on this newsgroup, that any such transfer violated
the Omega EULA, and that furthermore, Omega, through its legal counsel, would
enforce such EULA provision by legal action! End of story! After receiving
appropriate outcry, several weeks later Omega announced, again I believe on
this newsgroup, that it had reconsidered and was now modifying its position:
Omega would not take legal action to prevent any such transfer, it would
merely not recognize it for purposes of providing tech support and updates to
the transferee. Perhaps others have a better recollection of these posts
than I.
What I'm saying is that the issues, and the various parties' responses to the
issues, have changed, and I imagine will continue to change, over time. They
began on the side that Sigstroker now maintains: Here's the EULA, here's what
is says, you're bound by it, black and white, no issue remains. As we see,
for example, from the maturation of Omega's position a while ago to the
recent Federal District Court decision, these are issues that are in flux ---
and are maturing just as their underlying technology is maturing. Among
other reasons, this is why I find the law so fascinating, as to me, it
represents and attempts to resolve society's changing beliefs, goals, and
desires. I doubt that we've heard the final word on EULAs.
As an aside, I was in law school in the late 70s. There, I basically became
a property lawyer, with an emphasis in taxation and income and estate tax
planning. I went to UCLA, in Los Angeles. The faculty included probably the
foremost intellectual property lawyer in the county, Melvin Nimmer, the
author of the longtime and current bible of intellectual property law,
"Nimmer on Copyright." In the late 70s, the only interest in intellectual
property was largely within the entertainment industry --- it was no
coincidence that Nimmer was at UCLA, and that UCLA was known as a center for
intellectual property law. Then, the entertainment industry was "Hollywood,"
just down the street from UCLA, and of course, who was the outside
intellectual property counsel to the various studios, well, Mel Nimmer, of
course. The only law students interested in taking Nimmer's course, however,
were those interested in practicing in the entertainment industry --- it just
wasn't of much use or interest elsewhere. I had no such interest, so even as
a budding property lawyer, I forsook taking his course.
That would not happen now. Society and the law has changed significantly in
the last 25 years, since I graduated. Then, about the only property that had
value as intellectual property was held by the entertainment industry (OK,
there was some value in patents, too, but their issues were largely
resolved). Look what's happened in the last twenty years. What has become
valuable in society is no longer hard assets --- it's now intellectual
property, and its holders are no longer limited to the entertainment
industry. As that value has exploded and its owners multiplied, the legal
issues have greatly expanded (for example, computers, software, the Internet,
etc.), and the owners of the property have sought more and more protection to
conserve its value, and that has given rise for the need for more and more
law to resolve that value and elucidate the relative rights and obligations
among the parties. Society is changing, what is valuable is changing, and
the law is changing --- all interdependently. As much as we would like the
certainty of having rules cast in stone, so we would all know where we stand,
that's just not possible, or real, or fair, especially in such an evolving
industry --- how could today's intellectual property disputes be fairly and
satisfactorily resolved using laws made, for example, before computers were
even invented? So, yes, things are changing: including society, industry,
notions of what is valuable, and the law. We're in exciting times, indeed.
OK, OK, I'll get off my soapbox now.
Sincerely,
Richard
Bob Fulks wrote:
> At 11:07 AM -0800 2/10/02, Bill Wynne wrote:
>
> >The bigger question, and I've never heard an explanation, why is
> >software any different from books or music or any other
> >intellectual property? Just "because" a contract or license agreement
> >exists, that does not make it legal. Particularly when it's at odds with
> >advertising for the product. Here's a few links and excerpts:
>
> I was involved in this issue a long time ago and recall that if you
> sell somebody something, they own it and are free to do anything they
> want with it (including reverse engineer it). This is not a major
> problem with a physical product but is with a software product.
>
> The license approach is a license to use. If I license you to use my
> search engine on your web site for X months or years, it is still my
> property and your rights are circumscribed by the license document.
>
> Early software was often bundled with computer systems that were
> leased with hardware such as the early IBM computers. The supplier
> certainly wanted to prevent the user from being able to continue to
> use the software if they no longer leased the hardware, hence a
> license to use.
>
> But an irrevocable, fully paid up license for a software product has
> always been transferrable, perhaps with some permission from the
> owner to assure proper training, etc., with a "said permission shall
> not be unreasonably withheld" provision.
>
> Back to the original topic, I don't think anybody is complaining
> about licensing TradeStation. They are complaining that permission to
> transfer the license is being unreasonably withheld...
>
> Bob Fulks
>
>
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