Topic: Do you own your software or 'license' it?

[idolminds]

Shit just got real.

Beck says the software industry is trying to get around the first-sale doctrine by using the word "license" to describe a transaction that, economically speaking, is clearly a sale.

Thats pretty much what it all boils down to, but read the whole thing. It's about time we get a ruling on this matter. Lets just hope it goes the way we want.

[gpw11]

This has come up before with conflicting results, I believe.  I'm pretty sure I brought the whole licence vs. good debate up during some other conversation here a while back.  Actually having hard precedent being set (in our favour) would be great, but I have a bad feeling that may backfire.

As far as I know, the previous cases have all been in contention because the courts use a checklist (sort of like they do with negligence) to determine if something can really be categorized as a non-transferable licence.  All Autodesk or Adobe has to do is alter their buisness model slightly in order to meet that checklist a little more....like yearly fees to maintain the licence.  There's a good side and a bad side to this.

Timberline, a construction estimating software package currently runs off a true licence arrangement. The software basically breaks down to being a combination of spreadsheet and database.  The database contains all the local pricing information and applicable labour functions, while the spreadsheet is used to formulate estimating takeoffs.  Their pricing model is confusing as hell, but seems to work out like this:

-You're charged based on the money the software SAVES you.  If you own a construction business and (I don't know how this is decided) the scale of your operation dictates that use of the software means you can avoid hiring two extra junior estimators, you're charged a yearly fee based on the cost of 1-1.3 of those estimators salaries. If you're a startup that only employs 3 people, you're charged far less, and if you're a national giant, you're charged far more according to some function. It kind of makes sense in that the scope of your operation dictates how much you'll be using the software (one company may have one guy using it for 2-5 mid sized jobs a year while another may have dozens using it for dozens of bids and jobs a month).  Instead of charging by the copy, they're charging by the utility.    Of course, it's also completely unpirateable, so that may factor in. Well, you probably could, but all database support is attached to the licence, so if you download a copy you have to compile the database itself and stay on top of that...like daily.   The software does ship with a very generic database, but it's pretty much useless for real world applications.  Large companies may have a person solely dedicated to maintaining the database with current pricing, while small companies will have to usually get a Sage/timberline associated consultant in to get them up and running and then either keep on top of changes themselves or have scheduled update visits.

A little off track, but imagine if autocad all of a sudden had a pricing scheme like that. Of course, it doesn't do anything for piracy, but fuck, that would be a bitch for engineers and architects.

[idolminds]

Yeah, there is going to be some interesting fallout from the final decision no matter which way it goes.

I was just thinking too, that this would affect mostly retail copies. Those end up being purchases from the start because they only have you agree to something after you already paid money for it. That kind of stuff I could see being knocked down. Thats not a license, thats a purchase. But for all the people that buy games on Steam, they are presented with the agreement before the money changes hands. They supply a service and they do keep the right to void your license for anything. I imagine that kind of think could still stand.

[gpw11]

Oh, exactly.  EULA are usually legally groundless because you have to agree to them after you've purchased something.   It's basically a violation of contract law (but it gets way more complicated because of the presence of middlemen).  Every purchase you make is technically a contract.  It's an interesting area of law because of how it's interpreted, but when you walk out of the store with a new game/piece of software/whatever, you've gone through the three stages of forming a contract; offer, consideration, and acceptance.  Breaking purchases down into those stages doesn't work out the way you think (for instance, stores have no legal obligation to honour the marked price on something, the offer stage legally begins when you bring the item up to the register and they offer you a price on it...stores usually just do honour it because it's good buisness).  When you have an EULA, however, it's esentially another contract that you have to agree to in order to use an item that's already contractually and legally yours. That's part of why it's a "licencing" agreement rather than a "contract" but it's a huge shit show legally because it's not presented before the exchange. 

Unless specifically stipulated (and it's not with regular purchases), a single party can't amend, alter, or add addendum to a contract after it's been signed.  Hell, technically, should there be any mutually agreed upon amendments to a contract, they technically constitute a completely separate contract in addition to the first, rather than an amendment or addendndum...technically. There's a good argument that what EULAs and the sort amount to is Interference, and there is argument that they're automatically null and void because of "undue influence" (lesser form of duress)  - you have to sign them to use something you've already purchased and that wasn't part of the original contract.


See, the whole thing is a huge shitshow, and the perfect way around it is to just say that instead of buying software, you're just buying a licence.  But you know what the funny thing is? They want it both ways.  When you determine something operates on a licence agreement, you lose some copyright protections that they would really love to have.  So, depending on how they want to screw you, they change the very basis of what exactly it is they're selling you.

[Cobra951]

"Shitshow" is a good operative word for the shenanigans the software industry have imposed on what used to be simple goods purchases.  I'm strictly talking boxed software sold at retail outlets here.  I don't have a problem with software companies entering into contracts with clients to provide a licensed service.  But you and I and anyone who isn't trying to spin this know full well that sales of tangible goods over a counter have nothing to do with licensing anything.  It's not difficult at all to tell what's what.  Now the challenge is to get the courts to bring the law into sync with common sense (i.e., what you and I and anyone who isn't trying to spin this know full well).  I hope this case is a step in that direction.  I don't have a whole lot of confidence, though.

[idolminds]

Thanks for that, gpw. Thats really interesting.

[MysterD]

All really interesting, I must say.

I think in due time, probably YEARS down the road, we won't see probably much software sold in-store. We'll all be basically buying "licenses" to buy our software directly from an online distribution service - especially as Internet connections get faster.

I see this b/c I, probably among many others, just tend to be purchasing WAY more ("licenses") to download from (especially) Steam, Impulse, GOG, Direct2Drive, etc. Just local retailers around my way ain't carrying PC games like they used to; and/or their sales ain't NOWHERE as good as the digital distributors are. Places like Gogamer (where you buy hard copies on disc from) - which I often bought religiously from in the past, I ain't bought very much from like I used to recently. I'm starting to suddenly buy more from Amazon than Gogamer, even - since they seem to be pumping out the good deals even for NEWER games.

Also w/ many more games now requiring Steam even if you buy the retail version, it's also gotten to the point - if the HD space requirement ain't ridiculous, why should I buy the disc version? Hard copies often nowadays slack on the manual-size and/or extra goodies included in the retail box - especially if it's a Valve-made game. Fallout: New Vegas - Collector's Edition might be one of the few Steam-required games I'd be interested in buying a retail box for sometime down the line b/c of all the extra stuff it packs.

Personally, my take on game licensing/owning - The Single Player component is yours. I should not have to be online to worry about this - Ubisoft, I'm looking at you here. It's called SP for a reason - so I can play this ALONE. Also, modders should be able to modify, improve, or do what the hell you want to it - nobody should care here b/c you ain't effecting other players - you only have yourself to worry about. DRM limitations and crap shouldn't even be involved w/ SP, honestly. If it's bought on disc, disc-check for SP portion should be enuff. When the game's old and cheap, no point in having DRM - b/c DRM's meant to protect the game when the price of the game is quite HIGH.

When MMO is thrown into the mix, things get kinda muddy here on if a game is yours or not - b/c that is a service and you're normally paying a fee or buying more content to keep on playing w/ lots of others online. And, yes - you're not doing LAN, you're playing on a company's servers to handle tons of players. Though, I do believe if say a MMO does go down and pull the plug - like say Tabula Rasa or Guild Wars, it would be nice if the designers/publisher did come up w/ a way to make all the assets work offline - even if they charge you some small fee for this special patch - so people can go solo with it; especially if the game's built w/ AI bots that can run around and be there in the place of basically other MP players. Or Hell, why not sell a patch to add LAN support to the plug-pulled MMO so gamers who love the game can round up some friends and keep it going?

About MP, as long as there's a built-in LAN option, hey, that part of game's also yours - b/c the designers obviously built the game that if they go out of business and don't have servers, it's up to you to get other players going to play w/ you online. You just have to worry about if you can get other players playing the game - especially if it's OLD.

[idolminds]

This is not going well...

Heh, best comment on Slashdot.

You buy something (and you *are* buying it, because the "agreement" isn't presented before the sale.)

You try to install it, and disagree with the EULA, so press "I disagree", and the software doesn't get installed.

You then sell it to try to recoup some of your lost money.

But you can't, because the *agreement*, which you did not agree to says you can't.

The follow ups:

Not quite. Essentially, when you handed over the money, the transaction wasn't complete, because you didn't accept the contract yet. Without that, whatever you paid for is still not yours.

The joy of contract law.

So if I read this correctly, instead of selling the copy used to recoup your losses, the publisher of the software is actually supposed to give you back your money and you send the software back to them? I'm unaware of any software publisher that has such a policy or program.

This is really why this crap needs to be settled. Software companies want it both ways and its bullshit.

[Cobra951]

And because it's unquestionably bullshit, you have my blessing to ignore it completely, and deal with all product purchases as you see fit.  I sure will.

[idolminds]

Yeah, thats pretty much my conclusion as well. If they want us to play fair then they should play fair. If not...well, enjoy the free-for-all.


EDIT

I wonder what this means for Gamestop. Basically their entire business model is against the law. Same for places like Disc Replay and the like. Eep.

[MysterD]

I wonder what this means for Gamestop. Basically their entire business model is against the law. Same for places like Disc Replay and the like. Eep.

Very interesting point - since basically GameStop lives off its Used Games business.

Since digital distribution "sales" haven't fully taken over 100% yet - does this mean that publishers will have to actually keep WAY more copies of software/games in-print for retailers that sell physical copies of software?

[scottws]

This is not going well...

Heh, best comment on Slashdot.
The follow ups:  So if I read this correctly, instead of selling the copy used to recoup your losses, the publisher of the software is actually supposed to give you back your money and you send the software back to them? I'm unaware of any software publisher that has such a policy or program. This is really why this crap needs to be settled. Software companies want it both ways and its bullshit.

I don't have a problem with this, if what we bought was actually a licensed product and was treated as such.  It's not and it's bullshit.