You only own the license. You do not own the software and have no legal
right to modify it or use it beyond the scope of the license. That is up
front in the EULA.
Here we go again:
:
http://en.wikipedia.org/wiki/First_Sale_Doctrine
:
: The first-sale doctrine as it relates to computer software is an area
: of legal confusion. Software publishers claim the first-sale doctrine
: does not apply because software is licensed, not sold, under the terms
: of an End User License Agreement (EULA). The courts have issued
: contrary decisions regarding the first-sale rights of consumers. Bauer
: & Cie. v. O'Donnell and Bobbs-Merrill Co. v. Straus are two US Supreme
: Court cases that deal with copyright holders trying to enforce terms
: beyond the scope of copyright and patent, by calling it a license. Many
: state courts have also ruled that a sale of software is indeed a sale
: of goods under the Uniform Commercial Code (UCC) at the point where
: funds are exchanged for the physical copy of the software. The licensed
: and not sold argument is held mostly in the 8th and 7th Circuits while
: other circuits tend to support the opposite, thus leading to
: conflicting court opinions such as seen in the 3rd Circuit Step-Saver
: Data Systems, Inc. v. Wyse Technology and fifth circuit Vault Corp. v.
: Quaid Software as opposed to the 8th Circuit Blizzard v. BNETD
: (Davidson & Associates v. Internet Gateway Inc (2004)), which have not
: been resolved by the Supreme Court
:
: Federal district courts in California and Texas have issued decisions
: applying the doctrine of first sale for bundled computer software in
: Softman v. Adobe (2001) and Novell, Inc. v. CPU Distrib., Inc. (2000)
: even if the software contains an EULA prohibiting resale. In the
: Softman case, after purchasing bundled software (A box containing many
: programs that are also available individually) from Adobe Systems,
: Softman unbundled it and then resold the component programs. The court
: ruled that Softman could resell the bundled software, no matter what
: the EULA stipulates, because Softman had never assented to the EULA.
: Specifically, the ruling decreed that software purchases be treated as
: sales transactions, rather than explicit license agreements. In other
: words, the court ruling argued that California consumers should have
: the same rights they would enjoy under existing copyright legislation
: when buying a CD or a book.
:
: In a more recent case involving software EULA's and first-sale rights
: Davidson & Associates v. Internet Gateway Inc (2004)[1], the US
: District Court for the Eastern District of Missouri issued a ruling
: which appears to contradict the position of the district courts in
: California and Texas. The first sale reasoning of the Softman court was
: challenged, with the court ruling "The first sale doctrine is only
: triggered by an actual sale. Accordingly, a copyright owner does not
: forfeit his right of distribution by entering into a licensing
: agreement." In addition, the court found the plaintiff's EULA, which
: prohibited resale, was binding on the defendants because "The
: defendants .. expressly consented to the terms of the EULA and Terms of
: Use by clicking 'I Agree' and 'Agree.'" This runs counter to Softman v.
: Adobe. The difference in these rulings has yet to be resolved by a
: higher court.
This confusion is just in the US. Some European (and other) countries are
quite explicit that a software license isn't legally binding on the
consumer unless it is presented to the consumer in full before money
changes hands. That doesn't mean you give them a URL, it means they get to
see and read the actual license in the store and without being made to go
through some big hassle to obtain it.
And no, you can't override the consumer protections granted by these laws
with a EULA. Otherwise the law itself would be meaningless. How
can a lemon law be effective if car dealers can just require you to agree
in writing to give up the protection of that law before they'll sell you a
car?
