Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scandalous ruling)

[Alexander Terekhov]

Nice recent comment on Pee Jay's grokxxx blog:

"I understand your take on this. However, you consistently say thaat courts
uphold EULAs, and it is Autodesk's stance, that they *never* sell their
software. Even in the absence of a negotiated contract. The 9th Circuit
appellate decision in this case also did not account for the one copy where
Autodesk could not provide proof there was a contract. Hence the only proof
there was that Autodesk has the EULA click response. Hence, by not separating
out the EULA copy from the contracted copies they have given the impression that
he legally owned none of the copies. Correct me if I'm wrong here. How do you
account for the one copy obtained by someone else? As far as I know Autodesk did
not dispute the one copy was bought from a different place, nor presented proof
it also was a real contract.

Even given, that there was a negotiated contract, I'm not sure how it can be
concluded the software was not a sale. It would be equivalent to buying books
directly from the publisher at a substantial savings and then told you could not
resell. Or buying movies direct from a motion picture studio and told you can
not resell the copies.

I'm aware of all the previous established rulings on this. I think they all have
it wrong. I don't think the cases which are quoted are applicable to EULAs or to
software in general. The reason I say this, is movies, prior to the advent of
VCRs and DVDs were not sold to end users. Software has always been sold to end
users. Hence software is more akin to books than to movies or music (prior to
cassette players, Betamax, VCRs, and DVD). Now, the landscape has changed. Hence
the law, or common sense in the absence of specific law, should account for
this. Anything that looks like a sale, acts like sale and smells like a sale
should only ever be considered a sale. Regardless of any contract. Has anyone
actually seen the contract? Does it call the contract a lease?

Hence, the copies are sold and not leased. What kind of crazy notion do you have
to have to think of perpetual possession of an object, for one payment, as being
a lease? If you pay one fee and get to keep it forever then it's a sale. There
has to be a point where you say, ok, this is not a reasonable restriction. You
have given up this copy, and it is no longer yours to control. 

This contract came about because of a dispute, so Autodesk offered them a
discount in return for not being sued. At worst, it should be construed as
violation of contract, but the copies should still be considered sales. You have
to distinguish the copyright from the copies. Yes they retain copyright, but not
ownership of released copies. You can have a contract and still have a sale. A
lease with no end is not a lease, unless there is a recurring payment. Even the
lease of Hong Kong had a termination date. Any contract construed as an open
ended lease should absolutely have to have some way of ending the lease, other
than by destruction of the product. 

If the lease ends with the destruction of the product, then the value of that
product must be set to $0.00 and the leasee should be free to dispose of it in
any manner they see fit, including scrapping it. Any contract that transfers
property obtainable in a packaged format from a retail/wholesale store should
always be considered a sale unless there is termination and return date
specified. Like a car lease has. The courts are simply getting it wrong. 

This is not brain surgery and I expect judges and politicians to be smart enough
to figure out such basic logic. Basic logic being if a copyright owner places
zero value on property by telling a leasee to destroy the property at the end of
the lease, then the property is abandoned and the rightful ownership falls to
the possessor."

regards,
alexander.

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