Shachar Shemesh wrote:
If you did not agree to the liecnse then you have no right to distribute it (as in "selling").
I'm not distributing. I'm selling. I'm not making any copys, and therefor copyright law doesn't apply to me.
Selling what? you don't own the software. The only possible thing you have to sell is the license, which you rejected.
Until I did, it's just a simple software sale, and first sale should
> apply.
No, it does not. No one sold you the software - you were offered a license to use the software and distribute it (under specific terms) and rejected it. No "sale" took place.
How can someone claim that terms I never agreed to apply? If they offered me the terms on screen, they have some claim (which I do not agree with, but I see their point). This is not what happened here, however.
You seem to think I'm relating to the terms in the EULA. I am not - you are not bound by the contract which the EULA is.
However, if you do not agree to the EULA, you do not have a license to use or distribute the software. Preiod. Only by agreeing to the EULA and entering into a contract with Microsoft will you get a license for the software.
if you claim that you did not enter into a contract with them *(possible), you will have to agree under what ground you are distributing software copyrighted by another legal entity. *You* are required to prove that you have a license to do that.
I made a business transaction. I payed money. In return, I got a little sticker, a CD, and (presumably) a license. The point in time any strings were supposed to be attached to that transaction was when the money changed hands. Anything else is like me trying to claim that a car I sold you a month ago must only be resold with my consent.
Again, you are no obligated by the terms of the contract, if you do not agree to it. However ONLY agreeing to it will get you a right to sell the software / license what have you.
It's not the contract that binds you (you haven't agreed to it) - it's copyright law - without getting a license from the copyright holder somehow (and the only way to do that is to agree to the EULA) you have no right to do anything with the software.
If I have never put the CD into the drive, never opened the case the CD came in, how can anyone claim I agreed to anything else than a simple sale of goods (which happen to be a license. So what?). It even says so on the sticker that prevents me from taking the CD out of it's case:
"By breaking this seal, you agree to the terms and conditions .....". Sure enough, I didn't break the seal.
Forget the EULA and the seal - do you have a license to do distribute the software?
That leaves me with copyright law, true. No different than a book, or a music CD. Common precedence says that no one can dictate what I do with the copy I bought, so long as I don't make extra copies.
As you know I am no lawyer and I don't claim this to make sense. I can't tell you why it is different with book etc. I'm simply sharing by understanding on things are. If you want a lawyer, I believe you know where to find one :-)
The good news is that this exactly what happens in SCO vs. IBM in regard to the Linux kernel, btw :-)
No. There there was an explicit contract signed with ink. That moves the entire thing into contract land.
True in the sense that trial is about a contract between IBM and AT&T. But one of the argumentsa raised in teh trial that even if that contract forbade certain things from being done by IBM, when SCO distributed IBM GPL licensed software and then renounced the GPL as "illegal", they lost all right to further distrbute ANY GPLed software from that point onwards.
Cheers, Gilad
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