Naitaka wrote...
That is not a very good analogy. A car is a product not an IP to begin with. You're better off using a painting, book as a comparison. When I buy a book, do I have to go online and register my copy before I can read my book? Do I now need to buy a copy to read on the train and a copy to read at home? Do I have the right to start photocopying the book and selling them? Or to publish the book under my name because I own a copy? Sure it's not a perfect analogy, but there is a huge difference between owning a reproduction and the IP itself and certainly not limited to
software. The fact is there is no excuse for the software developers to consider themselves special and to pretend that we, as consumers, don't OWN the reproduction of their software when we purchase a copy.
A car is a better intuitive example than a book to illustrate the difference between information and "ownership" in practical terms.
If you buy a book,
you have a single physical copy of a book. If you want to sell the book, there is a significant burden on you. If you did photocopy the book (that is, photocopy every single page) you would have a product that is non-identical to the original book. Even if you re-typed the book, without actually publishing it, it would still be non-identical to the original book. But technically you could disseminate the information easily.
A painting is an even worse example. Copying a painting requires tremendous technical expertiese. It is not something someone could do in their basement.
Whereas software, which is purely information, is not distinct in that sense.
A book, in the past, was not information in the same way a book is information now. Now, people can obtain a copy of a book online and actually distribute it at 0 cost; this is the same issue with music, since technology has eliminated the physical need to disseminate the product.
This is why you have our current IP debate. Theoretically speaking, you can't frame IP as, say, owning the physical product anymore. You have to deal with the nebulous concept of what it means to own an idea.
EDIT: A good example of the difference between cars and software. It is not illegal to import a car from another country without the consent of the manifacturer, but it is technically illegal to import software without the consent of the IP owner. Also, only the reproduction with the intent of distribution is considered a criminal offense, anything else is basically "no plaintiff, no judge".
But cars are
not software. That is the entire point. The issue is rather an intuitive understanding of what it means to own a physical product versus to "own" information.
Granted, I know very little about US IP law and I really need to start studying it if I were to try to get a job over there, but I doubt there's too much difference when it comes to IP law since US's been trying to push their version of IP/copyright law on every other countries in the world for years to good effect.
I have no idea how US IP law works. At least in Canada, there are significant differences between their IP laws and ours (including if you have a right to copy software for personal use).
The issue is theoretical, not practical.
The EULA is not a contract. I don't know the legal term for it in English, but the fact that you are required to read and sign the EULA before purchasing the software already void any power it might have otherwise. Sure the publishers would love to pretend they can punish you for breaking the EULA, but the truth is that it's more of a detterent than any kind of legal binding document.
No, as far as I know, the EULA is a contract. Like I said: it's not per se
enforceable for the reasons you list. US courts tend to make wild business friendly decisions so I honestly wouldn't be surprised if this stands up in court despite the nature of it (see, for example, the Supreme Court's recent Citizen's United decision, where the SC argued that limiting corporate funding of independent broadcasts violated a corporations right to free speech).
The technial term for it, as far as I'm aware, is contract of adhesion. I happen to think EULAs should be thrown out on grounds of unconscionability but that is up for a court to decide.
But like I said upthread: I am not a lawyer yet, so this is more passing interesting right now that listing of facts, so you could be right.
ETA:
Wikipedia has this to say (take it with several grains of salt, given that the link has several objections to it)
:
The enforceability of an EULA depends on several factors, one of them
being the court in which the case is heard. Some courts that have
addressed the validity of the shrinkwrap license agreements have found
some EULAs to be invalid, characterizing them as contracts of adhesion, unconscionable, and/or
unacceptable pursuant to the U.C.C. —see, for instance, Step-Saver
Data Systems, Inc. v. Wyse Technology,[3]
Vault Corp. v. Quaid Software
Ltd..[4]
Other courts have determined that the shrinkwrap license agreement is
valid and enforceable: see ProCD, Inc. v.
Zeidenberg,[5]
Microsoft
v. Harmony Computers,[6]
Novell v. Network Trade Center,[7]
and Ariz. Cartridge Remanufacturers Ass'n
v. Lexmark Int'l, Inc.[8]
may have some bearing as well. No court has ruled on the validity of
EULAs generally; decisions are limited to particular provisions and
terms.
Modifié par In Exile, 24 janvier 2011 - 04:42 .
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Anyway, I went and took a peek at the wiki and it seems like you're correct on all counts. I'm no lawyer but EA's EULA certainly sounds like an "Adhesion contract" (Thanks! Was wondering what it's called in English all day) to me where they can remove their own obligation and change our obligation whenever they feel like without our conscent.
