cquirke said:
That's not something MS invented; all warranty, license agreements,
anti-nuptual contracts, and contracts in general, are there to
supercede common-law rights (and typically, to curb them).
Hence the "asterisk syndrome", as in:
Peace! *
* Conditions apply
Not a condition, an expression of hope, a wish that people that read
my words are able to attain peace of mind as I have.
Hence the glossed-over term "limited warranty".
And those limited warranties don't supercede the laws of States, let
alone Federal Laws. That's why you always see that the warranty
doesn't apply in certain states.
What is interesting here, is which overrides what; the law of the
land, some international norm (e.g. imposed by GATT as a consequence
of WTO membership), the particular agreement, etc. Generally,
there's a baseline that serves as the default contract unless
something specific applies, and there are constitutional norms under
which any particular agreement has to operate. This is an ongoing
tussle.
Well, in the US, where I live, Federal Law would be Supreme, since it
the Constitution that gave the US Congress the right to limit the
rights of Copyright Owners.
"The Congress shall have power to . . . . promote the progress of
science and useful arts, by securing for limited times to authors and
inventors the exclusive right to their respective writings and
discoveries . . . ." -
http://www.law.cornell.edu/constitution/constitution.articlei.html#section8
And the Supreme Court is the ultimate arbiter of what those limits
are.
"Any individual may reproduce a copyrighted work for a "fair use"; the
copyright owner does not possess the exclusive right to such a use." -
http://laws.findlaw.com/us/464/417.html
I find sware licensing a rather dull subject (compared to the geek's
perspective of just getting things to work) so others will have to
chime in if more detail is to be delved into. But it has been the
norm for commercial software to be licensed, never sold, in that the
user seldom if ever has the right to reverse-engineer, modify or
resell the software as their own creation.
Copies of software are sold all the time. The Wholesaler isn't a
licensee of the copies of software it sells to the retailer, and the
retailer isn't a licensee either. I am an owner of a copy of retail
software long before I get a chance to see any EULA.
Your TV came with a shrinkwrap license too! "Do you think you are
only licensed to use you[r] TV, or do you think you own it after you
plunk down the cash?
Instead of snipping & ignoring what I ask, why don' you actually try
answering them!
Don't confuse what is technically possible with what you have the
right to do.
Don't confuse the claims of software copyright owners with what that
of the rights of the individual to "fairly use" their copies of
copyrighted material.
It's hypocritical to revel in the opportunity to use
technology to break license agreements, and then take umbridge when
vandors use technology to enforce the agreements you break.
When it has never been legally established that the "vandals" of "fair
use" have the right to impose private usage terms on anonymous
individuals, whose claims are really hypocritical. Especially since
the Supreme Court has already legally established the right of the
individual to "fair use" limits the rights of the copyright owner.
So either you debate this in the context of what is technically
possible, i.e. a state of open conflict between vandor and user, or
in the context of what is tacitly or explicitly agreed.
I disagree, and I have every right to remain anonymous to MS. That
would be their tough sh*t. No one is forcing them to sell software
as a retail product, so if they don't like the fact that individuals
have the right to anonymously use retail software, then they should
stop letting people buy it that way!
Be careful what you wish for.
Actually, they do. Consider: The money you spend is as likely to
have been issued by a private bank (via overdraft or other loan)
than the national institution that issues bank notes. That money is
issued on the basis of some sort of contract with the bank, not as
your right as a citizen of the nation that issues the currancy.
And yes, there are indeed real-world implications of that
What bank loans money to individuals that have every right to remain
anonymous to them? Who volume licenses software to companies that
have every right to remain anonymous to them?
MS knows they don't stand a chance of proving they have a right to
know what people do with their copies of software for private
non-commercial use, because that would supercede the individual
rights to privacy in the home, and the anonymity of their retail
purchases, and that's why they have never tried to legally enforce
their EULA claims.
"The limited scope of the copyright holder's statutory monopoly, like
the limited copyright duration required by the Constitution, reflects
a balance of competing claims upon the public interest: Creative work
is to be encouraged and rewarded, but private motivation must
ultimately serve the cause of promoting broad public availability of
literature, music, and the other arts. The immediate effect of our
copyright law is to secure a fair return for an 'author's' creative
labor. But the ultimate aim is, by this incentive, to stimulate
artistic creativity for the general public good. 'The sole interest
of the United States and the primary object in conferring the
monopoly,' this Court has said, 'lie in the general benefits derived
by the public from the labors of authors' . . . . When technological
change has rendered its literal terms ambiguous, the Copyright Act
must be construed in light of this basic purpose." -
http://laws.findlaw.com/us/422/151.html
MS has gotten more than a "fair return" out of their limited
"statutory monopoly" for the "creative labor" of its employees, and
the "general public good," that would "serve the cause of promoting
broad public availability" of software, lie in the individual's right
to "fairly use" the copies of copyrighted material they have legally
purchased for all anonymous, private & non-commercial uses, over that
of the copyright owner getting more than their fair share of getting
individuals to pay them more than once for the same copy of software.
I believe that MS EULA is a valid commercial use contract, but an
individual's rights to "fair use" cannot be usurped by the copyright
owner after the fact of the retail purchase of the copy of software.
MS believes differently. However before I accept MS's belief to the
contrary, they are gonna have to provide me with absolute legal proof
to back up their as-of-yet unsubstantiated EULA claims. I have every
right to believe as I do, until MS proves their unsubstantiated EULA
claims in a real court of law, and not in their kangaroo FUD court of
Product Activation.
Just like SCO's licensing claims against IBM don't mean a thing until
SCO proves them in court, MS's EULA claims don't mean a damn thing to
me, until they have stood the test of the Due Process of Law. You
have every right to believe MS's EULA claims on nothing more than
faith in the words of a convicted predatory monopolist, but know that
I and any other rational human being, that has no self-interested
ties to Microsoft, have every right to believe that MS EULA claims
are nothing more than FUD!
When banks start to lend money to the anonymous, that will be the day
of the death of our economic system as we know it today.
