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'For sale - OnSale Restrictions'
1997\07\01@134733 by Mike

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At 12:25 PM 7/1/97 -0500, you wrote:
>Better check your license agreement and see whether it's "transferable"
>before you try and sell it.

Does that imply there are software licenses - ie sales that are only
ever valid for one person/entity.

If I buy - say a PCB design package - use it for a while then decide to
sell it (and naturally not use a backup copy of it) then surely I
cannot be prevented under any legal circumstances from selling it.

Of course it would be illegal to continue using it if I'd sold it.

In Australia its illegal to restrict sales of any goods that are not
dangerous or of military value etc - and if its found that a clause
in a sales document is illegal it does not preclude the original
purchase. ie If one of the terms of a purchase is that it cannot be
on sold then the clause which is illegal is considered void and does
not prevent its sale.

I also understand that USA Federal consumer law is very similar to
Australia Federal consumer law. In fact there are also several USA
extensions due to the Bill of Rights which we do not have in Oz.

So I would think that Andy can legally sell his package regardless
of any badly worded clause which may suggest a restriction.

Can some-one from EXECPC diplomatically clarify this without
overwhelming list members with a duplicate copy of the entire
license ?

Rgds

Mike
Perth, Western Australia


Some say there is no magic but, all things begin with thought then it becomes
academic, then some poor slob works out a practical way to implement all that
theory, this is called Engineering - for most people another form of magic.
                                                                      Massen

1997\07\01@152429 by Bob Fehrenbach

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Mike <spam_OUTerazmusTakeThisOuTspamWANTREE.COM.AU> wrote:
>Can some-one from EXECPC diplomatically clarify this without
>overwhelming list members with a duplicate copy of the entire
>license ?

Execpc is an internet service provider, not a software seller.
CCS uses Execpc as their ISP.  (So do I).  I believe CCS
can be found at http://www.execpc.com/~CCS   <- from memory

--
Bob Fehrenbach    Wauwatosa, WI     .....bfehrenbKILLspamspam@spam@execpc.com

1997\07\01@165939 by Ian Raymond Douglas

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I know it's a bit off topic but I found the comments by Andy and the
Execpc company very interesting. I just purchased a pc-link fax machine
yesterday and reading the license agreement I am NOT allowed to sell,
lease, transfer or even destroy the software. Without the fax machine and
the pc-link pack though what the hell would anybody be able to do with the
software? Seems Brother is a bit excessive in their copyrighting.
Personally, I BOUGHT the package and as far as I am concerned I
will do whatever I want with them (excepting using more than one copy of
the software which as stated above is useless on it's own) including sell
or destroy if I want.
                 Regards,
                        Ian

1997\07\01@171815 by Clyde Smith-Stubbs

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On Tue, Jul 01, 1997 at 01:47:33PM -0400, Mike wrote:
> Does that imply there are software licenses - ie sales that are only
> ever valid for one person/entity.
>
> If I buy - say a PCB design package - use it for a while then decide to
> sell it (and naturally not use a backup copy of it) then surely I
> cannot be prevented under any legal circumstances from selling it.

Yes, you can, if the licence agreement into which you entered prevents
you from doing so. The law in Australia is roughly as follows (disclaimer:
I'm not a lawyer, so get legal advice if you need to rely on this)

1) Software is covered by copyright, which automatically confers
  certain rights and restrictions. Copyright does not prevent you
  reselling the original copy, providing you keep no copies.

2) Most software has a licence agreement associated with it that
  grants you certain additional rights and imposes additional
  restrictions. The licence agreement may impose restrictions on
  resale of the original package (it may prohibit it, or it may
  require the new owner to agree to the licence, etc.)

3) Most software vendors rely on so-called "shrink wrap licensing"
  to enforce the licence agreement - i.e. you are assumed to have
  agreed to the licence if you open the package/use the software/etc.
  The validity of this is untested in Australian courts, but I believe
  it has been upheld in US courts.

4) If you don't agree to the licence terms, you are at the very least
  bound by copyright law, which may allow you to resell the entire
  package, but would, e.g. prevent you from embedding compiler
  libraries in your application (because this constitutes copying
  of the software that is not permitted under copyright law).

5) Software is considered to be "goods" under the terms of the
  Trace Practices Act and other consumer protection law - but
  this has never been tested in Australian courts (it was recently
  upheld in a British court). This provides protection in law against
  faulty software, but most licence agreements (even for chips, now!)
  have a clause banning use in safety-critical applications.
  I don't believe consumer protection law would overturn a valid
  licence agreement that prevented resale of the original package. But
  only a court can answer that definitively.

So you should read the licence agreement carefully - it should tell
you what you can and can't do. Many software agreements (including ours)
do allow transfer of the licence under reasonable conditions, but some
do not.

--
Clyde Smith-Stubbs  |HI-TECH Software,      |Email: clydespamKILLspamhtsoft.com
Ph:  +61 7 3354 2411|P.O. Box 103, Alderley,|WWW:  http://www.htsoft.com/
Fax: +61 7 3354 2422|QLD, 4051, AUSTRALIA.  |PGP: finger .....clydeKILLspamspam.....htsoft.com
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1997\07\01@173219 by Mike

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At 07:17 AM 7/2/97 +1000, you wrote:
>On Tue, Jul 01, 1997 at 01:47:33PM -0400, Mike wrote:
>> Does that imply there are software licenses - ie sales that are only
>> ever valid for one person/entity.
>>
>> If I buy - say a PCB design package - use it for a while then decide to
>> sell it (and naturally not use a backup copy of it) then surely I
>> cannot be prevented under any legal circumstances from selling it.
>
>Yes, you can, if the licence agreement into which you entered prevents
>you from doing so. The law in Australia is roughly as follows (disclaimer:
>I'm not a lawyer, so get legal advice if you need to rely on this)

In that case it becomes a lease - I think this goes beyond Andy's offer
since it included sale of other items included in a package.

I understand the law on sale of software that is 'purchased' and not
leased is untested and therefore vague - it cannot prevent me giving
this away or 'allowing' someone else to use the package on my system.
Therefore the 'extension' of this to receiving a fee for no longer
using the package - ie selling it on cannot be prevented and there would
be no logic in attempting to do so for mass produced software available
in an over the counter transaction. This would not preclude contractual
agreements in their proper form between two parties who were jointly
developing a package as such restrictions discussed would have a logical
place - but no in the type of software Andy wishes to sell...

Rgds

Mike
Perth, Western Australia


Some say there is no magic but, all things begin with thought then it becomes
academic, then some poor slob works out a practical way to implement all that
theory, this is called Engineering - for most people another form of magic.
                                                                      Massen

1997\07\01@195527 by )

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Ian Raymond Douglas Wrote:

> I am NOT allowed to sell,
> lease, transfer or even destroy the software.
>
So if your house burned down and the software was burned too, I guess
they'd sue you? Certainly the strangest restriction I've ever seen.
Wonder what you're supposed to do with it when you decide you don't want
it anymore? I own (at least I think they allow me to own it) a Brother
P-Touch PC label maker...think I'll see if they put any weird clauses in
its use.


Frank Richterkessing
Experimental Methods Engineer
GE Appliances

EraseMEFRANK.RICHTERKESSINGspam_OUTspamTakeThisOuTAPPL.GE.COM

"The secret to good housekeeping -- Use low wattage bulbs!"

1997\07\01@200355 by John Payson

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> 1) Software is covered by copyright, which automatically confers
>    certain rights and restrictions. Copyright does not prevent you
>    reselling the original copy, providing you keep no copies.

This is true, AFAIK, everywhere in the world.

> 2) Most software has a licence agreement associated with it that
>    grants you certain additional rights and imposes additional
>    restrictions. The licence agreement may impose restrictions on
>    resale of the original package (it may prohibit it, or it may
>    require the new owner to agree to the licence, etc.)

There are definite limits as to what restrictions software vendors may
impose via such licenses in ordinary commercial transactions.  If you sign
a contract BEFORE you buy a piece of software, the restrictions imposed
may be much more severe than those imposed after.

> 3) Most software vendors rely on so-called "shrink wrap licensing"
>    to enforce the licence agreement - i.e. you are assumed to have
>    agreed to the licence if you open the package/use the software/etc.
>    The validity of this is untested in Australian courts, but I believe
>    it has been upheld in US courts.

I don't think there has been any Supreme Court ruling on this subject, and
some state courts may differ slightly.  In general, though, a purchase is
made when money exchanges hands; neither the buyer nor the seller may
place additional conditions or restrictions on a sale after it is
complete.

While certain licenses which generally coincide with copyright law
(Borland's famous "like a book" license for example) are generally
enforceable, it's unclear whether the courts are really upholding the
licenses or merely upholding copyright law.  The more detailed licensing
agreements found on more expensive products (e.g. cross-compilers or CAD
systems costing many thousands of dollars) are often enforceable even
when they are much more stringent than copyright law, but that is because
an exchange of SIGNED contracts occurs BEFORE the exchange of product and
payment.

> 4) If you don't agree to the licence terms, you are at the very least
>    bound by copyright law, which may allow you to resell the entire
>    package, but would, e.g. prevent you from embedding compiler
>    libraries in your application (because this constitutes copying
>    of the software that is not permitted under copyright law).

Here is one place where shrink-wrap licensing could get interesting.  A
compiler writer has the right to restrict distribution of that compiler's
run-time libraries, but will frequently grant blanket permission for
users to incorporate those libraries into their own programs.  A licensing
agreement which required that anyone who transferred posession of the
compiler would also recall and transfer or destroy all copies of the
run-time library that they'd distributed *might* be enforceable.  [this
would effectively allow people to sell their compiler if they hadn't
released any software using it, but would prevent them from selling it if
they had]

> 5) Software is considered to be "goods" under the terms of the
>    Trace Practices Act and other consumer protection law - but
>    this has never been tested in Australian courts (it was recently
>    upheld in a British court). This provides protection in law against
>    faulty software, but most licence agreements (even for chips, now!)
>    have a clause banning use in safety-critical applications.
>    I don't believe consumer protection law would overturn a valid
>    licence agreement that prevented resale of the original package. But
>    only a court can answer that definitively.

Unfortunately, the current state of the laws in the US--and probably
Australia as well--is a mess.  Absent court rulings, there's no way to
know what's enforceable and what isn't; even with court rulings, there's
often still no way to discern the underlying principles or logic.

> So you should read the licence agreement carefully - it should tell
> you what you can and can't do. Many software agreements (including ours)
> do allow transfer of the licence under reasonable conditions, but some
> do not.

Even someone who reads the license agreement, however, still won't know
what terms they're REALLY bound by.  Unless a purchaser uses the software
in a way which copyright law would not permit absent the vendor's
permission (e.g. distribution of run-time libraries) or signed a contract
with the vendor BEFORE purchase waving the right to sell or transfer his
software, the normal rules of commerce and copyright would dictate that
the software could legally be resold.

1997\07\01@203235 by Richard Katezansky

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If I can add my 0.02 worth.  The real question is will CCS honor the
warrenty and any current maintenance agreement with the new owner. Or in
the case of lapsed maintenance will they allow the new owner to obtain
upgrades.  If they don't allow this then the point is moot and the software
is worthless except to the original purchaser.  A simple call to CCS should
clear this up.
My experiance with expensive (>$200.00) software that requires frequent
updates
(compilers, CAD programs ect.) is that the author will gladly allow a
licence transfer if for no other reason than to get the upgrade or
maintenance money from the new owner.





At 06:46 PM 7/1/97 +0000, you wrote:
{Quote hidden}

******************************
Richard Katezansky
Tangent Electronics Ltd.
Montreal, Canada
******************************

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