Re: Installation
On Tue, 25 Sep 2012 09:48:47 -0400
The Wanderer <wanderer@fastmail.fm> wrote:
> On 09/23/2012 12:42 PM, Celejar wrote:
>
> > On Thu, 20 Sep 2012 11:57:35 +0300 Andrei POPESCU <andreimpopescu@gmail.com>
> > wrote:
> >
> >> On Jo, 20 sep 12, 06:31:52, lee wrote:
>
> >>> Why not? I haven't signed any agreement with them.
> >>
> >> You agreed to the EULA on install or first boot, same thing.
> >
> > Additionally, IIUC, Microsoft retains copyright, and only grants the OEM and
> > you various rights to use and distribute the software. You, the end user, are
> > granted by the OEM (in accordance with a right Microsoft has granted *it*)
> > the right to use the software,
>
> Why do you need to be granted that right?
>
> What reserves the "right to use" to Microsoft and its grantees? Copyright
> doesn't, as far as I can tell; copyright just reserves the right to create
> copies (and/or authorize the creation of the same), not any rights relating to
> the actual *use* of an already-created copy. (Aside from the very limited areas
> of "public performance" and "public display".)
US Copyright law does restrict distribution, in addition to the actual
making of copies. I don't know exactly what the law says about the use
of a copyrighted work that has been illegally transferred to you.
...
> > but not to resell it (except as part of the sale of the entire computer). You
> > therefore simply have no right to resell it, and any customer of yours has
> > acquires no right to use it.
>
> Why not? The right to resell is long-established, as part of the doctrine of
> first sale; as long as selling it doesn't involve creating an additional copy,
> copyright itself does not AFAIK grant any authority to restrict sale.
As I documented in another post in this thread, under US (as opposed
to EU) law, the FSD doesn't apply to software that is licensed
rather than sold:
http://en.wikipedia.org/wiki/Vernor_v._Autodesk,_Inc.
http://www.siia.net/index.php?option=com_content&view=article&id=339&Itemid=352
https://www.eff.org/deeplinks/2010/09/magic-words-trump-user-rights-ninth-circuit-ruling
> Unless the grant of monopoly of distribution would cover it, but again, I think
> the doctrine of first sale has long established (at least in the US) that that
> monopoly doesn't extend to resale.
>
> The only possible argument I can think of is the standard "it's not sold, it's
> licensed" line of reasoning, which I think is purely and entirely a power grab -
> an attempt to get around restrictions like the doctrine of first sale (as well
> as to claim monopolies not granted by copyright or other IP law, e.g. the "use
> rights" monopoly cited above). As such, I think that argument is bunk, and if
> it's ever been accepted in court - which I think it unfortunately has - it needs
> to be overturned.
Yes, it has been accepted by the United States Court of Appeals for
the Ninth Circuit, and the Supreme Court of the United States has denied
cert, so it's the law of the land (at least under the jurisdiction of
the Ninth Circuit).
Celejar
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