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Except that "running a program" isn't copyright infringment.Except that "running a program" isn't copyright infringment.Posted May 9, 2008 0:57 UTC (Fri) by giraffedata (subscriber, #1954)In reply to: Except that "running a program" isn't copyright infringment. by ekj Parent article: Blizzard tests the reach of copyright law
You'll be VERY hard pressed to find a judge which does NOT consider what just happened above to be a SALE. As long as there isn't a document in the box that contradicts that dialogue, I agree. If there's a document that says, "the enclosed CD is the property of Blizzard and must be returned upon request" (which is common in other parts of the softwware industry), then I don't. Judges frequently find that detailed documents that are read later take precedence over contradictory language used in a brief initial exchange. It's a good thing they do, too, because lots of transactions would be very inconvenient if you had to do the detailed negotiation up front. In those cases, the parties have the right to rescind the contract after learning the actual terms. Insurance is the best example I know -- you buy it with some quick words on the phone and get the detailed policy a week later.
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Except that "running a program" isn't copyright infringment. Posted May 9, 2008 4:14 UTC (Fri) by jordanb (subscriber, #45668) [Link] I know in Illinois the consumer protections are such that if the customer had a reasonable belief that he was purchasing something but the fine print contradicted that, then the shopkeep would have to very explicitly make sure that the consumer understood the fine print, or risk having the sale be declared fraudulent. FWIU Illinois has uncommonly strong consumer protection laws, but other states are trending towards similar statutes.
Except that "running a program" isn't copyright infringment. Posted May 9, 2008 6:03 UTC (Fri) by ekj (subscriber, #1524) [Link] Nonsence. What is contradictory or unclear about: "I would like to purchase a copy of WoW pretty please ?" "Certainly, that will be $59.95 then" "Here you are. (hands over cash)" "Thank you very much, have a nice day!" This is a -CLASSICAL- sale, as straigthforward as it gets. What is inside the box is COMPLETELY irrelevant. Would you claim the above *isn't* a sale if the item bought was a apple or a book rather than a copy of a game ? I agree that details can be left out of the initial agreement, and supplemented later. (though in that case too, you can void the agreement if there are details which are significantly out of line with what you had reason to expect, say if the details stipulated the insurance was only valid on fridays) But -NOT- in fact having bougth what you explicitly said you wanted to buy is not a detail. If that was the case, the conversation would have to go like this (which it never does!) "I would like to purchase a copy of WoW please" "I'm sorry, we don't sell those. You can however purchase a licence to run a game under certain conditions, would that interest you ?" "...."
Except that "running a program" isn't copyright infringment. Posted May 9, 2008 15:46 UTC (Fri) by giraffedata (subscriber, #1954) [Link] This is a -CLASSICAL- sale, as straigthforward as it gets. I'll agree it's a sale, but there is plenty of room for interpretation as to what was sold. Was it a regular "copy" of the game, such that the statute about having the right to run an owned copy applies? Because non-lawyers probably use the phrase "purchase a copy" even when they totally understand they're technically just getting a copyright license and borrowing installation media, so maybe that's what the parties intended here. At least one of them. Were there no clarifying details in a subsequent document, I expect a court would interpret it most simply, which is as a plain sale of a CD. But I think the subsequently negotiated details are relevant here. We probably don't have to argue about that, though, since as long as we're being hypothetical about the document in the box, we can also hypothetically assume the phrase "purchase a copy" was never used -- the consumer just put a box down on the checkout counter, the checker asked for money, and he paid. It's easier to believe in that case that the consumer doesn't own a copy of WoW. Another reason the point may be moot is that even if the contract was for a plain sale of a CD, that just means the shopkeeper is the one who has to pay for the copyright infringement damages: His contract with Blizzard definitely doesn't make him the owner of the CD, which means he couldn't sell it to the consumer, which means the consumer violated copyright law when he copied it in order to run it, so the consumer owes Blizzard money, so the shopkeeper owes the consumer money for breach of contract.
Except that "running a program" isn't copyright infringment. Posted May 10, 2008 13:52 UTC (Sat) by dvdeug (subscriber, #10998) [Link] When do most people clearly buy a license and borrow the media? Never. So hypothetical questions about what they might call it are just that, hypothetical. They may not call it "purchasing a copy", but when you give them the money and you take the product, it's a sale. Unless you don't mind that your grocery store is only selling you a license to its fruit, one that may not include you eating it or taking it from the store.
Except that "running a program" isn't copyright infringment. Posted May 11, 2008 1:32 UTC (Sun) by giraffedata (subscriber, #1954) [Link] When do most people clearly buy a license and borrow the media? It doesn't really matter what most people do. If anyone does it, or a judge believes anyone would and call it "purchasing a copy," then the fact that someone used the phrase "I want to purchase a copy" doesn't preclude that kind of transaction. But it does happen. In some areas of the software industry, it is the normal way to buy software. It's also normal in some other parts of the copyright industry. It's how theaters buy movies.
Unless you don't mind that your grocery store is only selling you a license to its fruit, one that may not include you eating it or taking it from the store. Unlike fruit, a CD is something you can get a lot of value out of even if you don't own it. So while it's highly unlikely someone in a fruit purchase didn't intend to own it, it's entirely reasonable for a person to buy the ability to install WoW and not buy the CD that it comes on. I'd do it if that's what the store was offering.
Except that "running a program" isn't copyright infringment. Posted May 11, 2008 13:07 UTC (Sun) by dvdeug (subscriber, #10998) [Link] So if anyone might do it, you might be doing it without knowing it? That's fraudulent; the whole essence of a valid contract is that both sides have a meeting of minds on what the contract means. Theaters don't buy films this way. I can't believe any business person would stay in business if they paid good money for a film before reading the contract, and then realized they couldn't show it because they didn't have Dolby THX Surround X or whatever. (Maybe Paramount will send them a check in a few months, minus shipping fees, after they've returned the film.) I don't think anyone buys software and signs a contract for it; they know the difference between buying software and licensing software. You can get a lot of value out of a fruit if you don't own it. Maybe the license just says you can't resell it, or publicly display it, or make it into fruit salad. Is it all right to live in that world?
Except that "running a program" isn't copyright infringment. Posted May 11, 2008 17:48 UTC (Sun) by giraffedata (subscriber, #1954) [Link] So if anyone might do it, you might be doing it without knowing it? No, if anyone might do it, you might be doing it knowingly. So one might conclude based on other evidence that you are in fact doing it. That's fraudulent; Fraud is intentionally misleading someone for one's own gain. So far, none of the scenarios I've talked about involve someone tricking the WoW customer. They involve misundertandings and differences of opinion. the whole essence of a valid contract is that both sides have a meeting of minds on what the contract means. That's the point I've been trying to make. If the WoW customer reasonably believed he was buying a copy and the shopkeeper reasonably believed he was selling only a copyright license, there is no contract. In that case, the customer has to give back the CD. So the only question was whether a shopkeeper could reasonably believe the customer wanted a copyright license without a copy. The fact that it's a reasonable thing to buy and others buy similar things argues in favor of that. Theaters don't buy films this way [reading the full contract after the initial transaction].Agreed; that isn't the "this" I meant. I meant a theater owner buys a copyright license, and takes possession of a copy, but does not buy the copy.
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