papa@pollux.usc.edu (Marco Papa) (04/08/89)
Now that I have Dpaint III, I don't need Dpaint I and II any more. First come, first served. Please use personal e-mail to reply. Dpaint I $29.95 Dpaint II $49.95 -- Marco Papa 'Doc' -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= uucp:...!pollux!papa BIX:papa ARPAnet:pollux!papa@oberon.usc.edu "There's Alpha, Beta, Gamma and Diga!" -- Leo Schwab [quoting Rick Unland] -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
urjlew@ecsvax.UUCP (Rostyk Lewyckyj) (04/08/89)
In article <16386@oberon.USC.EDU>, papa@pollux.usc.edu (Marco Papa) writes: > > Now that I have Dpaint III, I don't need Dpaint I and II any more. First > come, first served. Please use personal e-mail to reply. > > Dpaint I $29.95 > Dpaint II $49.95 > > -- Marco Papa 'Doc' > -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Since you are a commercial software author and publisher, I think it's appropriate to ask. Is it legal and/or ethical to sell the outdated copies of purchased software after one has upgraded to a more recent version? Is this only permissible if one has purchased a full new license for the new version of the program? Do you know if the purchaser of the outdated copies is generally permitted to also purchase "special upgrade price" upgrades? What is your i.e. Felsina Software co. policy on such transactions?
papa@pollux.usc.edu (Marco Papa) (04/09/89)
In article <6789@ecsvax.UUCP> urjlew@ecsvax.UUCP (Rostyk Lewyckyj) writes: >Since you are a commercial software author and publisher, I think it's >appropriate to ask. >Is it legal and/or ethical to sell the outdated copies of purchased >software after one has upgraded to a more recent version? >Is this only permissible if one has purchased a full new license for >the new version of the program? >Do you know if the purchaser of the outdated copies is generally >permitted to also purchase "special upgrade price" upgrades? >What is your i.e. Felsina Software co. policy on such transactions? By law, I can do WHATEVER I WANT after I have purchased software, as far as selling it, burning it, whathever. Licensing agreements can only (try to) limit the number of COPIES one makes for backup purposes. As far as "upgrading" is concerned, it is up to the publisher to decide how to handle that. EA makes sure that ONLY 1 copy can be upgraded by asking for the PHYSICAL manual cover. In the past when we handled registrations for A-Talk Plus, we accepted "release" letters from poople that were selling the software to a third party and releasing to them rights to future upgrades. I know of other publishers that are doing the same. In the case of "large" quantities, EA technique is probably the best, since only about 10% of users are said to be returning their registration. Other companies like MANX and Lattice, keep a very complete database of their registered users, and since most of these depend on updates, they usually send in the registration card. In this case, the control is much higher. Even in this case, one is free to SELL 'old' copies of MANX and Lattice, though the purchaser won't be able to register them, and therefore upgrade them. The Lattice licensing agreement states to "treat this software like a book". As a used book that can be resold, software can be resold. When you get a New edition of a book, possibly discounted, you don't lose the rights to sell the 'old' copy. -- Marco Papa 'Doc' -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= uucp:...!pollux!papa BIX:papa ARPAnet:pollux!papa@oberon.usc.edu "There's Alpha, Beta, Gamma and Diga!" -- Leo Schwab [quoting Rick Unland] -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
thad@cup.portal.com (Thad P Floryan) (04/10/89)
Though this discussion belongs in comp.legal <whatever>, Marco is dead
W R O N G
with his statements regarding software licensing.
Software is (properly?) treated as intellectual property, NOT physical property
hence the licensing.
When you buy a car and receive title (after paying it off, etc.), you OWN the
car and can do whatever you want with it. Only ONE copy of that car exists.
When you license software, you are paying for the right to use the software;
the author retains copyright and legally can prevent you from patching it,
disassembling it, using other parts of it, etc.
As you know, software CAN be easily copied.
Selling off "old" copies of licensed software that one has upgraded is illegal
in every state in the USA. In practice, the legality is seldom challenged in
the courts.
Suggest you seek competent cousel before the SPA (Software Publishers'
Association) comes after you. :-)
Thad Floryan [thad@cup.portal.com (OR) ..!sun!portal!cup.portal.com!thad]papa@pollux.usc.edu (Marco Papa) (04/11/89)
In article <16958@cup.portal.com> thad@cup.portal.com (Thad P Floryan) writes: >Though this discussion belongs in comp.legal <whatever>, Marco is dead > > W R O N G > >with his statements regarding software licensing. Licensing? I guess you don't have either Dpaint I, II or III. If you did, you'd know that neither one comes with a "software license". Not even a "shrink-wrap" license. As such, by buying it, I have not agreed NOT to resell the ORIGINAL. You should also know that Dpaint II is NOT the same as Dpaint III. They are TWO separate products, which currently you can find at dealers at a very different price. As such, I did not get an UPGRADE to Dpaint II when I bought Dpaint III. I got a DISCOUNT on a different product. None of the EA products I have comes with a licensing agreement (I have F18 Interceptor that also comes without a license]. As such I can do WHATEVER I want with them, AS LONG AS I don't violate copyright laws. As I can resell and original book, a record, or a CD, I can resell my original DPaint II. >Software is (properly?) treated as intellectual property, NOT physical property >hence the licensing. >When you buy a car and receive title (after paying it off, etc.), you OWN the >car and can do whatever you want with it. Only ONE copy of that car exists. >When you license software, you are paying for the right to use the software; >the author retains copyright and legally can prevent you from patching it, >disassembling it, using other parts of it, etc. Everybody knows that. But you're evading the subject: which is reselling original software, NOT COPIES. >As you know, software CAN be easily copied. This is totally off the subject. RESELLING ORIGINAL SOFTWARE is the subject. >Selling off "old" copies of licensed software that one has upgraded is illegal ^^^^^^ >in every state in the USA. In practice, the legality is seldom challenged in >the courts. We are not talking about COPIES. We are talking about *ORIGINALS*! Well, it looks like the software publishers themselves disagree with you. These are excepts from the first 4 "shrink-wrap" licenses that I picked up from my software library (these are all from MAJOR Amiga Software publishers): 1. Excerpted from AEGIS' SONIX license: "You may transfer and license the program to another party if the other party agrees to the terms and conditions of the Agreement ... If you transfer the program you must at the same time transfer the documentation and backup copy or transfer the documentation and destroy the backup copy". [All of Aegis' products have a license that includes this clause]. 2. Excerpted from Lattice's Lattice C license: "You must treat this software like a book. ... Just as a book cannot be read by two people, in two places, at the same time, neither can the software be used by other persons, in other places, at the same time". [This type of license, software == book, has been widely used since Borland first introduced it with Turbo Pascal. As one can resell books, one can resell original software]. 3. Excerpted from MANX's AZTEC C license: "Customer may not transfer any copy of the Software to another person, unless Customer transfers all copies, including the Original, and advises MANX of the name and address of that person, who must sign a copy of the registration card, pay a transfer fee, and agree to the terms of the license." 4. Excerpted from WPCORP's WordPerfect's license: "You may transfer your right to use the program to another party, which terminates your license." And these are just the first 4 I picked up at random. >Suggest you seek competent cousel before the SPA (Software Publishers' >Association) comes after you. :-) Well, my lawyer is currently the President of the US-Asian Assoc. of Software Lawyers, which is trying to curb Asian Piracy. He is a very well known litigator on computer copyrights and licenses. His fees are not cheap: I pay him $250/hour :-( You should also know that, notwidthstanding what a "shrink-wrap" license says in the "agreement", so far nobody has put these licenses through the court's process. And this is for a very simple reason. Most lawyers will tell you that "shrink-wrap" licenses, if tried in court, are likely to be declared illegal, and therefore are not worth the interest of lawyers (i.e. $$$). So far, the only lawsuits that have been filed involving software have been for copyright infringment [since here the laws are a little clearer and the body of court decisions is pretty extensive], or for breach of SIGNED licensing agreements; none for violation of a "shrink-wrap" licensing agreement. It is of this week the news that Ashton-Tate and Lotus have filed copyright infringent against a very well known Italian company that allegedly has been copying disks internally. Note that they filed for copyright infringment, not for violation of a shrink-wrap license. I guess you should talk to you lawyer (if you have one) a little more often, and also read the fine print included in the software licenses. It pays. Since I don't think the above will change your mind and also since the subject really does not belong here, this is my last line on the subject. Replies will be forwarded to /dev/null. -- Marco Papa 'Doc' -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= uucp:...!pollux!papa BIX:papa ARPAnet:pollux!papa@oberon.usc.edu "There's Alpha, Beta, Gamma and Diga!" -- Leo Schwab [quoting Rick Unland] -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
thad@cup.portal.com (Thad P Floryan) (04/12/89)
Sigh. Though I've had no love of EA (witness Perry's and my vitriolic comments
directed towards EA on The WELL in years past), I will stand up for EA's rights
in this recent discussion.
At least Marco pledged further silence in the matter of his (in my opinion)
unethical and illegal trafficking of "old" software that he subsequently
"upgraded" (in re his attempts to sell off copies of DPaint I and DPaint II
which he recently upgraded to DPaint III).
But ignoring the matter won't cause it to "go away."
The EA software in question (the Deluxe Paint series) is clearly copyrighted
and protected by US Federal law. The last page of the DP-II manual states:
"SOFTWARE (c) 1986 ELECTRONIC ARTS"
True, there is NO reference to a software license in either the DP-I or DP-II
documentation (my copy of DP-III hasn't arrived yet :-), but Federal copyright
and case law clearly grant the exclusive statutory rights of authors,
composers, playwrights, artists, programmers, publishers, and distributors to
publish, dispose and control their works for (in the USA) 28 years, with
privilege of one renewal for an additional 28 years. Additionally, though not
germane to the topic at hand, common-law property rights continue in effect
until publication with or without copyright.
Harping on my use of the word "copy(ies)" and then citing Manx' license (which
uses the same word) in defense is a non sequitur. "Copy" is a generic term
pertaining to the instance at hand. In fact, the only "original" is that in
the author's possession.
You want some background? Consider the state of California's attempts (over
the past 17 years) to tax software companies on their software "inventory"
(much like the city of Los Angeles has done). Hey, HOW many copies of my
program DO I have? Do the blank disks (or tapes) in my inventory EACH
represent one (potential) "copy" of my $250 program? Sheesh.
EA's failure to clearly state the (implied) license nature of their software
is NOT grounds to rip them (EA) off (as would be done by selling previously-
upgraded copies of DPaint-I and DPaint-II).
Software is presently considered to be intellectual (NOT tangible) property
(re: a car being tangible property (a material object) vs. a program being
intangible property (an abstract idea)).
The fact that software is distributed on tangible media such as disk(s) or
tape(s) does NOT alter the nature or legal status of software.
Selling the (erased) media upon which the original software existed is OK;
attempting to sell the original disks with the software intact after having
upgraded (the software (as a courtesy by EA to early purchasers)) to newer
copies is NOT OK.
To put things into perspective, how would Marco feel if I choose to upgrade my
A-Talk-Plus to A-Talk-III for $25 (or whatever the fee is), then I sell my
"original" copies of A-Talk and A-Talk-Plus for $20 and $40 respectively? :-)
I sure wouldn't brag about paying $250/hour for such advice as Marco claims to
receive from his counsel.
SUMMARY: Software upgrades (at a discounted price) are a courtesy and NOT an
occasion to profiteer.
STATEMENT: this is NOT an attack (perceived or otherwise) on Marco. I'm
simply attempting to clarify some (otherwise) obscure points of law as they
apply to software (and the disposal thereof), points that arose from Marco's
"offer to sell." Hopefully, discussion of these matters will benefit all.
Thad Floryan [ thad@cup.portal.com (OR) ..!sun!portal!cup.portal.com!thad ]papa@pollux.usc.edu (Marco Papa) (04/13/89)
In article <17050@cup.portal.com> thad@cup.portal.com (Thad P Floryan) writes: >The EA software in question (the Deluxe Paint series) is clearly copyrighted >and protected by US Federal law. The last page of the DP-II manual states: > "SOFTWARE (c) 1986 ELECTRONIC ARTS" >True, there is NO reference to a software license in either the DP-I or DP-II >documentation (my copy of DP-III hasn't arrived yet :-), but Federal copyright >and case law clearly grant the exclusive statutory rights of authors, >composers, playwrights, artists, programmers, publishers, and distributors to >publish, dispose and control their works for (in the USA) 28 years, with >privilege of one renewal for an additional 28 years. Additionally, though not >germane to the topic at hand, common-law property rights continue in effect >until publication with or without copyright. Yea, so because my Beatles CD has a copyright notice on it, I can't sell it? Tell that to all the owners of used records stores and used SOFTWARE stores. They seem to still be doing pretty good business. How come all 4 software publishers I mentioned, specifically allow RESALE of the software in their licensing agreement? You'll find such "resale" instructions in practically every licensing agreement of all major software publishers. >EA's failure to clearly state the (implied) license nature of their software ^^^^^^^ >is NOT grounds to rip them (EA) off (as would be done by selling previously- >upgraded copies of DPaint-I and DPaint-II). Most of the lawyer community will tell you that there are NO IMPLIED LICENSES in case of software. In fact, in most states IMPLIED LICENSES are ILLEGAL and therefore INVALID. Moreover, even IMPLIED SHRINK-WRAP LICENSES are thought to be illegal and uncostitutional. How come NONE has ever been tried in court? >Selling the (erased) media upon which the original software existed is OK; >attempting to sell the original disks with the software intact after having >upgraded (the software (as a courtesy by EA to early purchasers)) to newer >copies is NOT OK. As I said, Dpaint II is a *DIFFERENT* product from Dpaint III. >To put things into perspective, how would Marco feel if I choose to upgrade my >A-Talk-Plus to A-Talk-III for $25 (or whatever the fee is), then I sell my >"original" copies of A-Talk and A-Talk-Plus for $20 and $40 respectively? :-) That is actually JUST FINE. A-Talk III is a different product from A-Talk Plus (even the publisher is different!). Also since the upgrade is given ONLY to registered users, then ONLY one discount will be given for each of the old A-Talk Plus. You're free of selling your old A-Talk Plus, though the purchaser won't be able to register it, and therefore he won't be able to buy A-Talk III at a discount. It is the same situation as getting the DPaint III discount. OXXI offers a similar discount for AT-/// to Diga! and Online! users. To make sure that not more than one copy is used for a discount, a copy of the manual front cover is requested. Just like EA requires for getting the discount for Dpaint III. >I sure wouldn't brag about paying $250/hour for such advice as Marco claims to >receive from his counsel. One such advice is "Forget about enforcing any "shrink-wrapped" licensing agreement. It is not worth it, and it won't stand". It looks like the rest of the lawyers community agrees with him. SUMMARY: Selling used software is perfectly legal, if you destroy all your old backups (including copies you might have on a hard disk). This is legal in every state of the US. This is true for software on "disks" and ROMS, too. [there is a large after market of MAC ROMs, for example. These can be bought perfectly legally just by ordering from one of the suppliers you can find advertised in Computer Shopper. Note that ALL MAC ROMS have the Apple copyright on it]. STATEMENT: this is NOT an attack (perceived or otherwise) on Thad. " I'm simply attempting to clarify some (otherwise) obscure points of law as they apply to software (and the disposal thereof)." :-) "Hopefully, discussion of these matters will benefit all." -- Marco Papa 'Doc' P.S.: Yea, I lied :-) -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= uucp:...!pollux!papa BIX:papa ARPAnet:pollux!papa@oberon.usc.edu "There's Alpha, Beta, Gamma and Diga!" -- Leo Schwab [quoting Rick Unland] -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
jwright@atanasoff.cs.iastate.edu (Jim Wright) (04/13/89)
In article <17050@cup.portal.com> thad@cup.portal.com (Thad P Floryan) writes: | [...] but Federal copyright | and case law clearly grant the exclusive statutory rights of authors, ^^^^^^^ | composers, playwrights, artists, programmers, publishers, and distributors to | publish, dispose and control their works for (in the USA) 28 years, with | privilege of one renewal for an additional 28 years. Additionally, though not | germane to the topic at hand, common-law property rights continue in effect | until publication with or without copyright. The April 89 CACM (V32#4) has contains "A self-assessment procedure on the application of copyright law to computer programs". I'll have to go through it a few more times to understand anything, but the one thing I did get out of it was that NOTHING is clear when it comes to copyrights and computer software. A word of warning though... From the beginning of the article: This self-assessment procedure is not sanctioned as a test or endorsed in any way by ACM. Any person using any of the questions in this procedure for the testing or certification of anyone other than him- or herself is violating the spirit of this self-assessment procedure and the copyright on this material. :-) -- Jim Wright jwright@atanasoff.cs.iastate.edu
richard@gryphon.COM (Richard Sexton) (04/13/89)
Has anybody:
1) Checked with a real lawyer ?
2) Called EA and see what they say ?
Seems to me if they didn't want you so sell your old dpaint
they'd have you send back the original disk, not just the
front page from the manual.
--
``Parents who have children, have children who have children''
richard@gryphon.COM decwrl!gryphon!richard gryphon!richard@elroy.jpl.NASA.GOVugkamins@sunybcs.uucp (John Kaminski) (04/13/89)
Has anyone in this matter considered the original purchaser as yet another distributer in the creator to consumer chain? As long as some uprgrade package is not used on the copy that is sold, why should reselling it be wrong? Why can't I sell a used book (intellectual property) after I read it a while? How can libraries get away with freely disseminating their collective intellectual contents without direct charge to the users? (only indirect through taxes, overdue fees, or whatever) In short, in my humble, non-law-student-or-practicing-lawer opinion, why not?
thad@cup.portal.com (Thad P Floryan) (04/14/89)
Putting aside the murkiness arising from licensing, this discussion has shown
two polarized viewpoints of the matter concerning selling off "old" versions
of upgraded software. The majority feels it's OK per:
1) comments here in the newsgroup,
2) emailings I've received (7: with 5 siding with Marco and two with me), and
3) a discussion at lunch today with some 20 people, in which 18 sided with
Marco's viewpoint and two with mine.
I still feel people are avoiding (or evading :-) the issues of:
1) versions of software vs. completely different products. I consider:
{ DPaint-I, DPaint-II, DPaint-III }, and
{ A-Talk, A-Talk-Plus, A-Talk-III }
to be different versions of the same (respective) product,
2) the courtesy of a deeply-discounted upgrade to a newer version offered to
earlier purchasers ONLY,
3) intellectual property vs. real property, and
4) economics (read: actionable (legal) redress).
One person commented that one could construe the unfettered selling of "old"
software copies to be a marketing ploy. [But see the scenarios below]
Another person considers the "purchase" to be a "use permit" (an implied
license). If a software vendor chooses to NOT defend his rights, tough.
[The law does protect the rights of even those who might be unaware of their
rights (figure THAT one out! :-) ]
Answering another person: no, I'm not a lawyer, but I've pursued and won all (3)
actions I've initiated, and with my software sales exceeding 9 figures I'm not
exactly a "babe in the woods." :-)
Marco's position with respect to his own software (the A-Talk series of comm
programs) amazed me; see below for my scenarios which I leave for you to judge
for yourself.
I was also amazed last year when I proposed having an expert talk at BADGE
concerning software marketing, ethics, and business, and NO ONE in attendance
expressed any interest. I can understand that attitude for people employed at
large software shops, but what of the one- and two-person shops? Well, I've
since been informed that such courses are available as extension courses here
in California (in case anyone IS interested).
In closing, I'd like to thank everyone who contributed both publicly and
privately to this discussion; it HAS been informative and enlightening.
====================
SCENARIO 1: Deluxe Paint (Electronic Arts publisher, Dan Silva author)
DPaint-I DPaint-II DPaint-III TOTAL
PAID : LIST $80 : $80 $30 : $120 $50 : $150 $160 : $350
SOLD OFF AT: 30 50 --- - 80 : - 80
NET $OUTLAY: $80 : $270
--------------------
"PAID : LIST" is the "<purchase or upgrade price> : <list price of new product>"
"SOLD OFF AT" is the offering price in the original message.
"NET $OUTLAY" is the <monies spent> - <monies recovered by sale>
Thus, one has had the use of DPaint (I and II) for several years, and now has
DPaint-III for a total multi-year cash outlay of only $80 (after selling off
the old copies of DPaint-I and -II). Sounds like a good deal to me and a bad
deal for EA. :-)
====================
SCENARIO 2: A-Talk (Felsina Software, Marco Papa proprietor and author)
A-Talk A-Talk-PLUS A-Talk III TOTAL
PAID : LIST $60 : $60 $20 : $75-85 $25 : $75-100 $105 : $210 - 245
SOLD OFF AT: 30 40 --- - 70 : - 70
NET $OUTLAY: $35 : $140 - 175
--------------------
Thus, one has had the use of A-Talk (1.0 and PLUS) for several years, and now
has A-Talk-III for a total multi-year cash outlay of only $35 (after selling
off the old copies of A-Talk). Sounds like a good deal to me and a bad deal
for Felsina Software.
====================
Thad Floryan [ thad@cup.portal.com (OR) ..!sun!portal!cup.portal.com!thad ]cmcmanis%pepper@Sun.COM (Chuck McManis) (04/15/89)
In article <17146@cup.portal.com> thad@cup.portal.com (Thad P Floryan) writes: >SCENARIO 1: Deluxe Paint (Electronic Arts publisher, Dan Silva author) >SCENARIO 2: A-Talk (Felsina Software, Marco Papa proprietor and author) My disagreement with Thad's reasoning here is that he counts the "secondary market" sales as _negative_ income. This is a fundamental flaw in his reasoning. The point he trys to make is that selling off Dpaint I or A-Talk for $20, is $40 of *lost* sales to the developer. Which I disagree strongly with. Rather here is a person who *WILL NEVER* buy this product (at least legally) until someone sells them their "used" copy. Now at this point Thad goes on in his _worst case_ senario that these people will _never_ upgrade. Which in fact is also false. Many of them will upgrade for _full price_. The truth of the matter is that with 4 or 5 paint programs or a zillion terminal emulator programs available the cash poor user is damned careful about what he or she spends their money on. They might ask themselves "Why buy A-Talk, when Vt100 is free?" Well here is an opportunity for them to try it out "on the cheap" so to speak WITHOUT PIRATING IT! Now they use it for a while and maybe they say "It's not worth it." So they resell the package and the cycle repeats, or they say "Gee, this is great, professionally maintained by a full time staff, and look the newer version has so many neat new features this product is definitely worth it." Or maybe they just say "It's ok for $20, but I wouldn't pay full price for it." Ang go on about their merry way, never at risk of becoming a customer in the first place! Chuck's second law of Computer Users : "Anyone the uses a program on a regular basis will buy the update when it becomes available." This expands the user base in a perfectly legal way, and those users often go on to become "real" in the sense that they have paid real money to you the developer for the latest version. The nice thing about students is that when they graduate they usually get a real job and in the computer business that often entails much more disposable income. And when they get that job, and want to "get the best", if they have been using your software for 2 or 3 years (and they were happy with it) they will most likely give you the business. Your entire argument strikes me as unsupportable. Sorry about that, --Chuck McManis uucp: {anywhere}!sun!cmcmanis BIX: cmcmanis ARPAnet: cmcmanis@sun.com These opinions are my own and no one elses, but you knew that didn't you. "A most excellent barbarian ... Genghis Kahn!"
ejkst@cisunx.UUCP (Eric J. Kennedy) (04/15/89)
In article <17050@cup.portal.com> thad@cup.portal.com (Thad P Floryan) writes: >The EA software in question (the Deluxe Paint series) is clearly copyrighted >and protected by US Federal law. The last page of the DP-II manual states: > > "SOFTWARE (c) 1986 ELECTRONIC ARTS" Pick up any book. On one of the first pages it will say "Copyright (C) 19?? Foo, Bar, and Co." Does that mean you can't sell it again? Even if you bought the second edition of the book? Even if the publisher gave you a discount on the second edition because you were a loyal custormer? [<rrrriiiing! rrriiing!> "Hello, Frank's used books." "This is the police. This is a raid. We've got the joint surrounded. Come out with your hands up!] Of course not. >To put things into perspective, how would Marco feel if I choose to upgrade my >A-Talk-Plus to A-Talk-III for $25 (or whatever the fee is), then I sell my >"original" copies of A-Talk and A-Talk-Plus for $20 and $40 respectively? :-) Well, since Atalk, Atalk Plus, and Atalk III are all separate products, the same as Dpaint, Dpaint II, and Dpaint III are, I suspect he wouldn't mind. After all, there were two programs bought, (say Atalk Plus and Atalk III), and two programs in use (your friend who bought it from you uses Atalk plus and you use Atalk III). Sounds fair to me. The fact that you got a discount on Atalk III seems pretty irrelevant to me. I could probably get just as much of a discount by calling Abel Supply. >I sure wouldn't brag about paying $250/hour for such advice as Marco claims to >receive from his counsel. Not an attack on Marco, huh? >SUMMARY: Software upgrades (at a discounted price) are a courtesy and NOT an >occasion to profiteer. But, what you're calling a "software upgrade" isn't really a software upgrade, at least in this case. DPaint II is a completely different product than DPaint III. I can still go buy DPaint II. They just happen to be by the same company, and, I presume, the same author(s). EA simply offers a discount to their established customers in an effort to spark business. Not the same thing as a software upgrade at all. In fact, as I understand it, there are some financial reasons why software companies go to the trouble of calling something "Superzappo Plus" to distinguish it from the original "Superzappo" and make it a different product. Now is it the same product or is it a new one? You can't have it both ways. Now, if you were talking about upgraded (i.e. fixed or enhanced) versions of the *same product*, then of course you're right. If they fixed some bugs in DPaint III (I just assume there's a few) and called it DPaint III version 1.01, and sent it to all registered users for a small fee, then it would *not* be ok to sell the original version. Now, I suppose there needs to be a dividing line here somewhere. Where, I don't know. -- Eric Kennedy ejkst@cisunx.UUCP
papa@pollux.usc.edu (Marco Papa) (04/15/89)
In article <14640@gryphon.COM> richard@gryphon.COM (Richard Sexton) writes: >Has anybody: >1) Checked with a real lawyer ? Yes, I have. >2) Called EA and see what they say ? No, and I don't really care. >Seems to me if they didn't want you so sell your old dpaint >they'd have you send back the original disk, not just the >front page from the manual. True, BUT the copy of Dpaint II that I sold DID have the original front page of the manual intact. -- Marco papa 'Doc' -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= uucp:...!pollux!papa BIX:papa ARPAnet:pollux!papa@oberon.usc.edu "There's Alpha, Beta, Gamma and Diga!" -- Leo Schwab [quoting Rick Unland] -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
mikes@lakesys.UUCP (Mike Shawaluk) (04/15/89)
To put in my $0.02 worth here, it seems to me that one of the issues here
that no one has mentioned is the rationale for renaming a product versus just
bumping up the version/revision number. Now, in the case of DPaint, it
*seems* like it's just a case of newer version numbers, since the product
name has a number in it (even if it's a Roman numeral). For ATalk, it's a
little fuzzier, since the "middle" member was a "Plus", preceded by just
plain ATalk and followed by ATalk III (speaking of which, the first DPaint
wasn't really called DPaint I, was it? Sort of like World War I, it didn't
get its number until the *second* one came along).
Anyways, there are lots of marketing reasons why it's desirable to change the
name of a product when a significant number of new features are being added
at upgrade time, not the least of which would be: price increase! Most
folks (myself included) would view a price increase of a product negatively,
even if there were improvements from a previous version, but for some strange
reason, it seems more justifiable to pay the extra $$ if it's a new product
(i.e., the name has changed, and not just to protect the innocent :-). And,
if a customer bought the first version for $99, and the new "product" is now
being priced at $129 (assuming that it can compete in the general marketplace
at that price, of course), the customer will usually feel good about being
able to "upgrade" to the newer version for the differential between those
prices, or thereabouts (although if he is a mail-order purchaser, the _true_
differential in selling price would probably be less that the difference in
list prices).
BTW, I sent in my upgrade card (and manual cover) to EA a week or so ago, and
I don't really plan on selling my DP II set, mostly because I don't think I
could! There have been so many new & improved paint programs out lately
(Photon Paint, etc.), that I feel DPaint *had* to experience an "upgrade"
just to stay alive in the market (I'll bet EA feels the same way! :-) Also
(and sadly), anyone I know of who would hasn't bought, but would like to have
DPaint II, most likely already has an illegal copy of it...
--
- Mike Shawaluk
(mikes@lakesys.lakesys.com OR ...!uunet!marque!lakesys!mikes)
"Where were you on the night of August 12?"thad@cup.portal.com (Thad P Floryan) (04/16/89)
Chuck concluded his message with: "Your entire argument strikes me as unsupportable. Sorry about that." NO need to be sorry! I thank everyone for their participation in this discussion, as it HAS been enlightening. I've been looking at software marketing and distribution from the "other" end, some 25+ years of mainframe and mini background. In that arena, it's not unusual for a single copy of a software system to be licensed for $500K; definitely NOT the high-volume consumer marketplace! :-) As has been made recently clear, it's going to require an "attitude adjustment" (on my part) to enter the high-volume marketplace with new product. Thad Floryan [thad@cup.portal.com (OR) ..!sun!portal!cup.portal.com!thad]
papa@pollux.usc.edu (Marco Papa) (04/16/89)
In article <99107@sun.Eng.Sun.COM> cmcmanis@sun.UUCP (Chuck McManis) writes: [argument omitted] >Your entire argument strikes me as unsupportable. Sorry about that, > >--Chuck McManis Chuck said it all. Saved me 1 extra posting (and some net bandwidth, too) :-) -- Marco Papa 'Doc' -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= uucp:...!pollux!papa BIX:papa ARPAnet:pollux!papa@oberon.usc.edu "There's Alpha, Beta, Gamma and Diga!" -- Leo Schwab [quoting Rick Unland] -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
papa@pollux.usc.edu (Marco Papa) (04/17/89)
In article <2609@ssc-vax.UUCP> coy@ssc-vax.UUCP (Stephen B Coy) writes: >Now to apply all this to the case at hand. Say I buy DPaint II from >Marco. Marco says this is a legitimate transaction and I am now the >true owner of this copy of DPII. As a legitimate owner I expect to >be able to register with EA and be eligible for any upgrades just >like any other owner of DPII. WHAT!?! I CAN'T?!? Yes, you could. The original Dpaint II that I sold (Yes, it's gone, sorry :-) WAS COMPLETELY INTACT, including the Manual cover. In fact I also included with it the DPaint III coupon that I got from EA. -- Marco Papa 'Doc' -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= uucp:...!pollux!papa BIX:papa ARPAnet:pollux!papa@oberon.usc.edu "There's Alpha, Beta, Gamma and Diga!" -- Leo Schwab [quoting Rick Unland] -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
papa@pollux.usc.edu (Marco Papa) (04/17/89)
Now that the issue is winding down, let me finally quote from Mary E. Herbst's book "Software Legal Issues from Microcomputer Users and Developers", which I believe is a condensed version of her Ph.D. thesis. Ms. Herbst's book covers Rights of Software Owners, Software Licensing, Laws affecting Software Users and Developers, Current Court Cases Deciding The Law, Information Needed to Market or Purchase Software, and Protecting Published Software. The bibliography is extensive and includes references to all the relevant court cases. Following are a few excerpts that are relevant to our discussion. The book is Copyright 1987 Mary E. Herbst. Italicized text is shown between *stars*. "Shrink-wrap licenses usually bar the making of backup copies. However, this restraint on alienation is valid only if the transaction is *not* a sale at the retail level. Therefore the real question is whether a "sale" has taken place; the consumer has paid money to receive a piece of software which is then *owned* by the consumer. For this and other reasons shrink-wrap licenses, when tested, have NOT been upheld in court". "The "first sale" doctrine, coupled with traditional Anglo-American legal prejudice against restraints on alienation, suggests that the copyright owner, after the "first sale", has no right to control further disposition of *that copy* by the purchaser. This means that the purchaser can resell or rent out the copy, or otherwise dispose of it, keeping in mind that backup copies must be disposed of in the case of a sale." "A shrink-wrap case, Vault Corp. v. Quaid Software, was brought before a Louisiana judge. The judge refused an injunction against the shrink-wrap license violator statating that the state shrink-wrap legislation was preempted by federal copyright law and thus the shrink-wrap conditions were *unenforceable*. Only Louisiana and Illinois have passed shrink-wrap legislation and Illinois legislators are proposing that their state's shrink-wrap law be repealed. [for these reasons] other state legislatures have no impetus to pass similar laws". "ADAPSO, an industry trade group concerned about the legal side of computer issues, originally favored shrink-wrap laws but has now reversed position". -- end of quote I strongly recommend Ms. Herbst's book to anybody seeking further insights into these issues. -- Marco Papa 'Doc' -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= uucp:...!pollux!papa BIX:papa ARPAnet:pollux!papa@oberon.usc.edu "There's Alpha, Beta, Gamma and Diga!" -- Leo Schwab [quoting Rick Unland] -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
urjlew@ecsvax.UUCP (Rostyk Lewyckyj) (04/19/89)
When I originally posted on this topic following up Mr. Papas'
offer for resale of his originals of DPAINT [1I & II], I had the
following ideas n mind.
Most/ all software sales are unstatedly intended to be understood
as perpetual licenses to use the software in one machine , and or one
execution of the software at a time. It is the executing process
that is being licensed, rather than the static copuy of the software.
This is a constant cause of confusion and causes the continuing
arguements about backups.
A software version update, for a reduced price, as opposed to a
purchase of a new copy (license) of the software, is intended as
an upgrade of the existing license. So there is still only one
license in effect. The original purchaser of the license or one
who has repurchased the license may keep and use all previous
versions of the softeware, as backups, and fall back versions, in
cases of incompatability of the new software with ... . For example
one may need to use the old version of some run time libraries,
with code compiled by a previous version of the compiler, especially
if the old source is not available, or would require much rework.
In offering to resell his disks, manuals, etc. of DPAINT [I & II]
it seemed that Mr. Papa was breaking at least the spirit of the
single use license.
Therefore I wanted to know Mr. Papas' feelings on the morality and
legality of what he was doing. Especially since he is a software
developer and so his behaviour can and will be applied to his products.
Actually I don't think any questions of ethics apply in this case
because what Mr. Papa has done is the common and accepted mode of
behaviour (i.e ethical by definition).
Also copyrights are probably not directly at issue since I take it
that Mr. Papa did not keep any backups of DPAINT [ I or II] .
From Mr. Papas' postings I gather that he considers his actions
legal, ethical, and moral, and considers each version of his programs
as a seperate product and any upgrade as the equivalent of a new
license. Thus any copies of any version of his programs can be resold
as long as all materials pertaining to that version/copy are properly
transfered.
-----------------------------------------------
Reply-To: Rostyslaw Jarema Lewyckyj
urjlew@ecsvax.UUCP , urjlew@unc.bitnet
or urjlew@tucc.tucc.edu (ARPA,SURA,NSF etc. internet)
tel. (919)-962-9107sparks@corpane.UUCP (John Sparks) (04/21/89)
<6852@ecsvax.UUCP>
Since it is their product, they should be able to tell you one way or another
if it is legal or not to re-sell their products. I would call but I can't
find their number, so I guess I will just throw in my 2 cents worth too :-)
Personally, I don't see the difference in selling a disk and selling a
used CD or Book to someone else. That is legal, so why not software?
Some have been arguing that by reselling the software, you are taking away
potential revenue from the programmer, because rather than buying a store
copy, the person is buying your used copy.
This sounds brain dead to me. You could use that argument against buying
anything used: CD's, Books, Refrigerators, TV's, and so on. Buying anything
used takes away potential business from the manufacturer, but that doesn't make
it illegal.
What makes software so special? It's a product just like any other. As long as
I am not making illegal copies and selling those (or giving them away) then I
should be able to do anything I want to with the software, include selling it
when I tire of it, or erasing it (or is *that* illegal too?).
--
John Sparks | {rutgers|uunet}!ukma!corpane!sparks | D.I.S.K. 24hrs 1200bps
[not for RHF] | sparks@corpane.UUCP | 502/968-5401 thru -5406
The next sentence is true. The previous sentence is false.dan@hp-lsd.HP.COM (Dan Schmelzer) (04/28/89)
> >I don't really want to stir this up very much but I am confused by > one point that several of you seem to keep bringing up and that is that > Dpaint I, II & III are differant products. Now I am not sure about the > I to II transistion, but, the flier sent to me from EA for the DP III > package states in large type at the top "UPGRADE NOW AND SAVE $92.95" --------^^^---------------- > and in addition the address you mail to to obtain this "new product" > is DPaint III Upgrade, P.O. Box... > >You get the Idea. So why are you people insisting that this is a > different product when EA clearly thinks it is an upgrade? > Sorry if my 2 cents worth stretches this out further. > > Monty I think EA is saying just the opposite with the statement. That is, if you don't upgrade NOW it will cost you an additional $92.95. That sounds like list price for DPaint III. So they are saying that if you UPGRADE LATER you pay full price. Now if I'm paying full price For DPaint III, where does it say I can't resell my original DPaint I (or II)? EA's use of the word UPGRADE equates to "buy". my .02 worth, Dan Schmelzer dan@hp-lsd.HP.COM