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Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scan


From: David Kastrup
Subject: Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scandalous ruling)
Date: Wed, 08 Dec 2010 16:01:44 -0000
User-agent: Gnus/5.13 (Gnus v5.13) Emacs/24.0.50 (gnu/linux)

Alexander Terekhov <address@hidden> writes:

> David Kastrup wrote:
> [...]
>>  
>> I don't see this particular case's outcome as ludicrous.  The defendant
>> bought an upgrade (at reduced price) that required the previous purchase
>> of a full license.  That you can't sell the media and full license and
>
> "The problem with this theory of yours is there is nothing in the 
> Copyright Act about "upgrades" and "full" versions. There are only
> "copies".

Sure.  But the upgrade licensing conditions (marked as a contract) to
which the customer agreed contained the condition to stop using the
previous full version and destroy the media.  Selling them on Ebay does
not fulfill those conditions.  If the customer was planning on selling
the previous versions, he should not have agreed to the upgrade
conditions, returned the media for a refund, and acquire a new full copy
not requiring him to accept restrictions on his reselling rights of the
first full version.

> The original version was a "copy" and the "upgrade" was a copy. If the
> user originally *owned* the first version, and then purchases (and
> *owns*) the upgrade, then as far as the Copyright Act is concerned,
> the user owns two copies, period.

Sure.  And as long as he does not agree to any licensing terms of the
upgrade, he can sell either the original (and cease using it) or the
upgrade as-is.

Accepting the contractual obligations of the upgrade license does not
leave him with that option.  Not because of copyright, but because of
contract right.  Copyright is just what forces him to either accept the
licensing contract or return his media for a refund.

> Nothing stops the software publisher from, as a condition of 
> selling the upgrade, requiring the user to transfer ownership 
> (and possession) of the original copy back to the publisher. Doing 
> this would solve the software publisher's problem, but apparently 
> they are too lazy to be bothered with this."
>
> No? Why don't you quote the sentence?

You are babbling.  If you bothered remembering what you quoted, Autodesk
_did_ require transfer of original disks back to the publisher.  That's
foolproof, but also inconvenient.  So they put this condition into the
upgrade license agreement, making the prerequisite a legal rather than a
physical matter.

That's rather simple, but it does not affect first sales right.  If
Autodesk was of the opinion that first sales did somehow not hold with
software, they would not need to put destruction of the original full
version into the upgrade licensing conditions, as those would not be
legally available for reuse, anyway.

-- 
David Kastrup


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