Forum: Poser - OFFICIAL

Subject: Interesting EULA-related court case

CyberStretch opened this issue on Sep 25, 2002 ยท 16 posts

CyberStretch posted Thu, 26 September 2002 at 10:58 PM

EricofSD,

You seem to be very well-versed in the law. Glad to know that you picked out some of the finer points within the case.

As stated in the original post, the case does not directly involve CL or Poser, but the case does describe some legal precedence regarding the EULA vs Copyright Law discussions that recently went on here regarding CL and the P5 EULA.

Some of the pertinent points within the case that I noticed are (any emphasis added is mine):

  1. 'the owner of a particular copy . . . lawfully made under this title . . . is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy.' 17 U.S.C. 109(a).
  2. The Adobe license compels third-parties to relinquish rights that the third-parties enjoy under copyright law. [Subsequent Sales.]
  3. This license provision [transferring or assigning licensed software] conflicts with the first sale doctrine in copyright law, which gives the owner of a particular copy of a copyrighted work the right to dispose of that copy without the permission of the copyright owner.
  4. Other courts have reached the same conclusion: software is sold and not licensed.
  5. If a transaction involves a single payment giving the buyer an unlimited period in which it has a right to possession, the transaction is a sale.
  6. A number of courts that have addressed the validity of the shrinkwrap license have found them to be invalid, characterizing them as contracts of adhesion, unconscionable, and/or unacceptable pursuant to the Uniform Commercial Code. These courts have refused to recognize a bargain in shrinkwrap license that is not signed by the party against whom it is enforced. In Step-Saver, the Third Circuit found that the terms of a contract were formed when the parties shipped, received and paid for the product. Therefore, the software shrinkwrap agreement constituted additional terms to the contract, and under Uniform Commercial Code 2-207 (governing commercial counter-offers), these terms were invalid without express assent by the purchaser.
  7. The Court finds that the provisions contained in Adobe's EULA purport to diminish the rights of customers to use the software in ways ordinarily enjoyed by customers under copyright law.
  8. Sound policy rationales support the analysis of those courts that have found shrinkwrap licenses to be unenforceable.
  9. A system of "licensing" which grants software publishers this degree of unchecked power to control the market deserves to be the object of careful scrutiny.