End User Licensing Agreement ("EULA").

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Last Updated June 14, 2008

End User Licensing Agreement ("EULA")

So, what do all of these comapnies have in common?

They ALL use EULA's with the software they market. Like hundreds of other software companies. These names happened to come up first in a search using AltaVista on Decenber 5, 2007. Like most of the others, these companies have clauses in their EULA that specifically states that their software is licensed not sold. BullShit Alert! They are ALL lying to you. Why do they do it? Because a lot of people believe what they say.

Unlike the lying corporate lawyers who represent the many lying software companies, we will support our statements with court decisions and legal opionions that back what we are claiming. The lying corporate lawyers who represent the many lying software companies cannot do the same.
Historical Context
When these form licenses were first developed for software, it was, in large part, to avoid the federal copyright law first sale doctrine" thus the intent of EULAs after 1990 were to preempt federal statutes using contract law and that they serve no purpose besides attempts to preempt consumer rights in other statutes. (Source: 3rd Circuit Court of Appeals, Step-Saver Data Systems, Inc. v. Wise Technology)
Court Cases

Bobbs-Merrill Co v. Straus (1908) US Supreme Court- No license required to use copyrighted material. License "claimed" by copyright holder cannot extend holder's rights beyond statute defined by Congress.
Advent Sys. Ltd. v. Unisys Corp (1991) held that the sale of software is the sale of a good within the meaning of Uniform Commercial Code.
Downriver Internists v. Harris Corp (1991) held that the sale of software is the sale of a good within the meaning of Uniform Commercial Code.
Step-Saver Data Systems, Inc. v. Wise Technology (1991) the court concluded that subsequent changes to the Copyright Act had rendered the need to characterize the transaction as a license to use software "largely anachronistic.".
Applied Info. Mgmt., Inc, v. Icart (1997) held that the sale of software is the sale of a good.
Novell, Inc. v. CPU Distrib., Inc. (2000) The first-sale doctrine applies to software.
Softman v. Adobe (2001) The first-sale doctrine applies to software and can not be waived or taken away through an EULA.
Krause v. Titleserve (2002 2nd Cir Appl) Titleserve owned the software; Krause was confusing ownership of a copyright with ownership of a copy of the copyrighted material.
Timothy Vernor v. Autodesk (2008 9th Cir W. Wash) Order by District Judge stating that Autodesk's software was SOLD NOT LICENSED and that the Plaintiff, Timothy Vernor was entitled to use the First Sale Doctrine as a defense to alleged copyright infringement.

Articles

Court smacks Autodesk, affirms right to sell used software by Timothy B. Lee, published: May 23, 2008 for ars technia.
Computer Software Terms Unfair, a BBC report from February 2008.
Stop Mucking up Copyright Law: A Federal Common Law of Contract as a Clean Exit Strategy, a 2003 paper by Llewellyn Joseph Gibbons, Associate Professor, College of Law, University of Toledo.
Robert J. Morrill did a lengthy paper called Autodesk, Inc, for example, and their clueless lawyer, Andrew S MacKay, of Donahue Gallagher Woods LLP.
In 2007, Clueless MacKay shut down a number of eBay auctions of Autodesk Software, foolishly and falsely claiming the Autodesk Software is licensed, not sold. Clueless MacKay is our example of a lying coprporate lawyer. Above we show you case after case where federal courts have rejected this idea. So, what is the basis of his actions and his claims? Maybe his yacht (we assume he has one; he's a partner), his expensive home, his sports car, etc; certainly not the facts of the issue.
As long as corporate lawyers like Clueless MacKay get away with lying, the abuses will continue. Until there are civil penalties for IP Owners and their lawyers abusing the federal statutes, these simple-minded "officers of the court" will continue harming those for whom they have little or no regard.

See also Patterns, also Licensed Fabrics and also Licensing & Licenses.