Path: utzoo!utgpu!jarvis.csri.toronto.edu!mailrus!bbn!oberon!pollux.usc.edu!papa From: papa@pollux.usc.edu (Marco Papa) Newsgroups: comp.sys.amiga Subject: Re: Used DPAINT [I & II] for sale Message-ID: <16497@oberon.USC.EDU> Date: 12 Apr 89 18:58:06 GMT References: <16386@oberon.USC.EDU> <6789@ecsvax.UUCP> <16404@oberon.USC.EDU> <16958@cup.portal.com> <16459@oberon.USC.EDU> <17050@cup.portal.com> Sender: news@oberon.USC.EDU Reply-To: papa@pollux.usc.edu (Marco Papa) Organization: Felsina Software, Los Angeles, CA Lines: 84 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] -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=