Tabberone's Hall of Shame - Business Software Alliance

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"The only thing necessary for the triumph of evil is for good men to do nothing"
Edmund Burke

Business Software Alliance
Hall Of Shame Member
Added July 27, 2008

Last Updated - December 12, 2009

Don't you just hate it when you get what seems to be a never-ending computer generated telephone operator that asks you inane questions "to better service you" while it would have faster if you could have spoken to a real person? How about when you ask support for information why your expense electronics device isn't working and the first question they ask you is, "Is it plugged in?" Then, after you say yes, they tell you to go check? Or when you call your service provider they treat you like you're an idiot?

Adobe Software - Apple Computer - Autodesk - Avid - Borland - Computer Associates - Cadence - Cisco
Corel - Dell Computers - EMC2 - Hewlett Packard - I.B.M. - Master Cam - the Math Works
McAfee - Microsoft - MindJet - Monotype Imaging - P.T.C. - Quark - Quest Software - Rosetta Stone
S.A.P. - Siemans - Solid Works - Symantic - SyBase - SynOpSys - Tele Atlas

So, we ask you, what do all of these companies listed above have in common? They treat you like you're an idiot! They all belong to the Business Software Alliance, or BSA, which has found a new fertile field to exploit by illegally terminating eBay auctions for used software. The great minds at the Business Software Alliance (we will pause here for a moment while you laugh) have decided to go against prevailing federal court cases and take harmful and illegal actions against eBay sellers who are reselling legitimate software, much like their sister association, the The Software & Information Industry Association, also in the Hall of Shame. We think BSA stands for BullShit Always.

Gasp! you say while wondering how can they ever do this? Because whatever bottom feeding corporate lawyers the Business Software Alliance has retained has told them the likelihood of them actually having to defend their position in court is minimal. That's how these sorry-ass "Bull Shit Alliances" can get away with their unethical and, we believe, highly illegal activities.

The original concept of the alliance was likely well-intended. After all, there are, and were, a lot of businesses who would buy one copy of a software program and install that copy on multiple computers. The software manufacturers sell one program per computer. That in of itself isn't unreasonable, or illegal. It's the new fertile plains upon which they now trample that offend us.

Newspapers and other periodicals spouting the "official lies" spread by the Business Software Alliance refer to the BSAlliance as "watchdogs". We prefer referring to them as scumbag extortionists. Common low-life thieves and muggers deserve more respect than the BSA. Here are some articles about the Business Software Alliance:

The software protection racket, Part 1, by James E. Gaskin , Network World , 06/08/2006
The software protection racket, Part 2, by James E. Gaskin , Network World , 06/15/2006
Business Software Alliance: Outright liars or just truth challenged?, by James E. Gaskin , Network World , 06/29/2006
Software makers' tactics against piracy questioned, by the Associated Press, November 26, 2007, from the Boston Globe and Globe.com.
SMBs Being Unfairly Targeted for Violating Software Licensing Agreements?, November 26, 2007, IT Business Edge.
Software Piracy as defined by the Business Software Alliance.
Software enforcer hits small business. From the Arizona Star, November 26, 2007. An analysis by The Associated Press reveals that targeting small businesses is lucrative for the Business Software Alliance.

Let's take for example, Rosetta Stone Software. They manufacture language learning CDs. Arguably these are considered computer programs by Rosetta Stone but by definition really are not. They are learning CDs, much like a computerized book. A computer program requires interaction between the user and the computer to perform a function. Simply selecting a chapter for learning purposes is not interaction or doing a search. But, we digress. The learning program is really nothing more than an e-book.

The Business Software Alliance, operating upon authority and instructions from Rosetta Stone, have been shutting down perfectly legal eBay auctions where the learning programs are being sold after the original owner no longer want it. This is much like selling a book after you have read it and you don't want it any more. But, not to Rosetta Stone. According to The Business Software Alliance, when they terminated an eBay auction selling an unwanted set of CDs:

"Rosetta Stone’s End User License Agreement expressly states that the license to use this product is non-transferable."

Well, that settles that, doesn't it? Except it doesn't. They are falsely and, in our opinion, illegally, interfering with the secondary market. This software isn't licensed; it is sold. The many companies in the Business Software Alliance comprise one big internet thug going about trampling upon the legitimate rights of people to re-sell software and CDs. Why do they do it? Because they know that no one, or very few, will fight back and that means the many will believe their lies and they can have their way. Their way is terminating perfectly legal eBay auctions and potentially ruining seller's reputations and severely affecting income from these auctions.
These companies and the Business Software Alliance are internet scum. And we back up our claims:
One Hallmark of a License Is the Owner's Intent to Regain Possession
The right to perpetual possession is a critical incident of ownership. See Krause v. Titleserv, Inc., 402 F.3d 119, 123 (2d Cir. 2005) (describing a person's "degree of ownership of a copy" as "complete" when "he may lawfully use it and keep it forever, or if so disposed, throw it in the trash"). Accordingly, the distributor of a copyrighted product's intent to regain possession is strong evidence that the product was licensed, not sold, to the recipient. The absence of this intent is strong evidence that the product was sold.
The Absence of a Recurring Benefit
Generally, licenses provide recurring benefits for the copyright owner. Microsoft, 66 F.3d at 1096 (determining that Microsoft sold its software to DAK in part because Microsoft received a set payment independent of DAK's length of use of the software); see also SoftMan Prods. Co. v. Adobe Sys., 171 F. Supp. 2d 1075 (C.D. Cal. 2001) (determining that Adobe sold its software in part because "the license runs for an indefinite term without provisions for renewal").
The Only Apparent Benefit to a License Is to Restrain Trade.
The only benefit to a license (in this case) is to restrain transfer of its CDs. This purpose was rejected 100 years ago by the Supreme Court. See Bobbs-Merrill Co. v. Strauss, 210 U.S. 339 (1908) (rejecting a book publisher's attempt to restrict resale of a book through a label that prohibited sales for less than one dollar); see also RCA Mfg. Co. v. Whiteman, 114 F.2d 86, 90 (2d Cir. 1940) (Hand, J.) ("[RCA] had no power to impose the pretended servitude upon [its] records [by placing a 'Not Licensed for Radio Broadcast' label upon them]."); SoftMan, 171 F. Supp. 2d at 1084 ("Adobe frames the issue as a dispute about the ownership of intellectual property. In fact, it is a dispute about the ownership of individual pieces of Adobe software.").

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.

Rebuttals
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If you, or your company, have been referenced on these pages, and you would like the chance to post a rebuttal, we will post your rebuttal (provided it is in good taste) so others can read it. The rebuttal must be submitted in a format that can easily be converted into HTML. We reserve the right to alter the rebuttal to make it more readable. However, we will not alter the content (unless there is offensive material to be removed). We also reserve the right to comment on any rebuttal received. Emails protesting the content of this web site may be treated as rebuttals by us at our discretion.

Federal Court Cases
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Federal Statutes
Copyright Act 17 U.S.C. 5 | Digital Millenium Copyright Act 17 U.S.C. 12 | Lanham Act 15 U.S.C. 22
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