kurttrail said:
MS is a corporation that hires software authors. MS is not the
author. And as with all contracts, terms that the software copyright
owner is unwilling to legally enforce are moot.
So what if Microsoft hires out? They hired someone else to produce
works that are contracted to be and remain the intellectual property of
Microsoft. Symantec is a software publisher and everything it owns was
bought from someone else. Transferring the copyright is one way to get
it. Eidos distributes games, owns those games, contracts out to have
others code the game, like Ion Storm, but the game or anything created
in part for it still belong to Eidos. Just because someone other than
Microsoft wrote the code doesn't change the fact that Microsoft is the
current owner of the copyright of the work or any part thereof in
progress or so far produced. The programmer working for a software
developer doesn't own the copyright to his output simply because he
happened to be the one that wrote the code. It still belongs to his
employer. A search at copyright.gov on "Windows XP Professional" turns
up Microsoft Corporation as the entity that owns the copyright. Them
perhaps contracting other programmers to do the work didn't alter the
fact that they still own the copyright.
Yes, true, any rights the copyright owner decides not to exercise are
moot. However, not acting to enforce those rights can be and has been
construed as relinquishment of those rights and the owner may be hard
pressed to show that not enforcing their rights before should be ignored
when they decide to exercise them later. Microsoft isn't going to
bother prosecuting a single home user that pirates their software onto
multiple home computers. That wouldn't be cost effective in the short
term (to recoup their perceived loss) or long term (to prevent continued
piracy by that consumer). But just try to pirate 5,000 copies of one
license of Windows on your corporate desktops and then try explaining
that you thought you had "fair use" when the FBI confiscates your
equipment and effectively shuts down your business. Not charging
someone and pursuing conviction of the offender does change the fact
that the offender committed the crime. Rape is still a crime regardless
that the victim doesn't press charges.
Wrong again. The CD is property, the software is a copyrighted work.
Two separate and distinct things.
And that's the reason Copyrighted material are not covered under
property law, but by Copyright law.
Sorry for not being so very specific. *Intellectual* property that has
commercial value includes copyrighted works.
If "fair use" (
http://www.copyright.gov/fls/fl102.html) had a decent
definition regarding software then software producers wouldn't even need
to include the contract (EULA). Their butts would already be covered if
the law was so very specific as to delineate all the protections
afforded to them. Since that is not the case, the license (contract)
enlarges or restricts (usually the later) what is considered "fair use".
Contracts exist because it becomes quite evident that despite the huge
volumes spent on writing the laws that those laws won't cover every
conceivable transaction between individuals or entities.
Statements in copyright law, like
http://www.copyright.gov/title17/92chap1.html#107, which says, "In
determining whether the use made of a work in any particular case is a
fair use the factors to be considered shall include: (4) the effect of
the use upon the potential market for or value of the copyrighted work."
It seems that "fair use" is defined by a compendium of cases rather than
a specifically outlined definition in copyright law, so "fair use" is
vague and why there exist those court cases trying to define it. I
certainly couldn't find a decent definition at copyright.gov or even at
findlaw.com. One description is at
http://www.rosenlaw.com/html/GL13.pdf. "With proprietary software, be
careful to have a valid fair use argument if you do anything not
permitted by the license." I doubt convenience, being economically
strapped for cash, or being lazy are adequate arguments.
I do agree that it seems ass backward to pay for a product before you
are notified of the terms of the sale and then have to choose to reject
the terms to get your money back. That's why I argued with our legal
department to get our packaging changed to show the one-side page with
the license through the shrink-wrap on the backside of the box.
However, we don't sell to end users or consumers. Businesses are used
to reading contracts. Putting the license on the package so it could be
viewed by consumers before they purchase would still not get them to
read it. They don't even bother to read the license when it is pushed
into their face during installation. Also, you still don't know what
are the terms of the warranty for that toaster you bought before you
paid for it, so not knowing all the conditions of the sale beforehand is
not a requirement for the transaction and the transfer of monies itself
does not finalize the transaction.
When you buy non-software goods at the retail store and decide they are
defective, even if the "defect" is just the wrong color, YOU still have
to bother to return to the store. They don't pick it up for you, and if
you have to ship it back to you then they often don't foot the bill for
shipping costs, either. So how is that different than getting software
at home, reading the contract, disagreeing with it, and then returning
it to the software maker? You got it home, you found it wasn't what you
thought you bought, so you then return it. How is it more unreasonable
to require customers to return tangible items, like a toaster, on their
own time and at their own expense for a product that doesn't meet their
expectations, like color, size, fit, or whatever, than of requiring
customers to return software that doesn't meet their expectations, like
the terms of the license?
All this hoopla when in fact Microsoft does accept returns. If you
don't agree to their license terms, return it!
)