Path: utzoo!dptcdc!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: <16579@oberon.USC.EDU>
Date: 17 Apr 89 05:34:45 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> <17146@cup.portal.com> <99107@sun.Eng.Sun.COM> <16558@oberon.USC.EDU>
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Reply-To: papa@pollux.usc.edu (Marco Papa)
Organization: Felsina Software, Los Angeles, CA
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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'
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