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EU court rules software transfer is a sale (2012) (bdkadvokati.com)
89 points by diimdeep 13 days ago | hide | past | favorite | 47 comments





I've always wanted to see someone challenge the EULA concept in court by saying "Mr. Gates, can Microsoft name all the people it has 'license agreements' with? Do you know for example weather you have licensed software to Judge so-and-so here?"

I personally reject the license and install anyway. The only thing that says I can't do that is the license, so if I don't agree with it, then it doesn't apply. Right? No actually I've stopped doing that and switched to Free Software completely - no restrictions imposed by the ELUA there.


That's an interesting thought. What would happen in court if you went with that? "The license said to only install if you accept the license, but since I reject the license, I'm not bound by its contents, so I installed even though I didn't accept it".

> That's an interesting thought. What would happen in court if you went with that? "The license said to only install if you accept the license, but since I reject the license, I'm not bound by its contents, so I installed even though I didn't accept it".

The license is what gives you legal permission to make copies in the process of installation; copying is otherwise an exclusive right of the copyright owner. So that’s very much an “if you win the argument on rejecting the license, you still lose” situation.


> The license is what gives you legal permission to make copies in the process of installation

In France and Germany, you are allowed to copy copyrighted works, as long as it's for private use (including family and "private circles") and you don't sell it. https://fr.wikipedia.org/wiki/Copie_priv%C3%A9e#Principes_g%...


Poland also has a Personal use exemption due to a copy tax we get on computer media like CDRs, USB drives and even ordinary HDDs. Permissible_Use_of_Protected_Works: https://en.wikisource.org/wiki/Polish_Copyright_Law#Division...

Art. 23. Copyright

The scope of the work's own personal use

1.

Without the author's permission, you may use an already disseminated work for your own personal use free of charge. This provision does not authorize to build on the basis of someone else's architectural and urban planning work and to use electronic databases that meet the features of the work, unless it concerns own scientific use not related to profit-making purposes.

2.

The scope of personal use includes the use of single copies of works by the circle of persons remaining in a personal relationship, in particular kinship, affinity or social relationship.

but software is explicitly excluded by 77:

https://en.wikisource.org/wiki/Polish_Copyright_Law#Chapter_...

Art. 77.[32]

Provisions of Article 16 subparagraphs 3-5, Articles 20, 23, 231, 27, 28, 30, 331-335, 49, paragraph 2, Articles 56, 60 and 62 shall not apply to computer programs.


What kind of copyright work? I have heard from friends in Germany that ISPs sniffing all transport so if you download movie with torrent they will send you exact titles, and ask you to pay 1000-2000 eur or they will take you to court where you will pay 1000 per each movie downloaded ... And I have friends that actually paid fine.

France also has an agency doing this, HADOPI, but it works by joining Bittorrent swarms to collect IP addresses. What they punish is the download itself, ie. the acquisition of a copy. Not copying something you acquired legally.

For example, before fast internet connections, people would borrow music CDs from libraries and copy them.


> What they punish is the download itself, ie. the acquisition of a copy.

In some countries, such acquisition of a copy is legal on its own.


German ISPs don't do that ('sniff all transport' and automatically sue? for copyright infringement). ISPs have no business in doing this (Why would they? DPI infrastructure is expensive, so it setting up some magical automation to detect torrents, check against some database, etc. Plus, pre-preemptively suing someone will likely cause them to not be a repeat customer.).

Traffic inspection by ISPs (let alone sharing of collected data with third-party entities) in the EU is required to have a legal/technical basis and/or user consent, depending on what is being done and for what purpose [1]. Even attempts at blanket (meta)data retention for law enforcement agencies have pretty much been ruled illegal in the EU [2] and Germany [3].

What probably happened is your friends were torrenting, and some entity acting on behalf of copyright holders got their IP from public trackers/DHT. Then they came knocking to the ISP with a cour order, asking for information about the person behind that IP address, and the ISP gave them that [4]. Finally, the entity sent a C&D to your friends.

[1] - See the EU DPS' opinion on how the existing EU legal framework affets ISPs' data inspection abilities: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELE...

[2] - See Directive 2006/24/EC, tl;dr https://en.wikipedia.org/wiki/Data_retention#European_Union

[3] - htps://www.bundesnetzagentur.de/DE/Sachgebiete/Telekommunikation/Unternehmen_Institutionen/Anbieterpflichten/OeffentlicheSicherheit/Umsetzung110TKG/VDS_113aTKG/VDS.html

[4] - https://blog.raychenon.com/file-sharing-violations-in-german...


Sorry for making error in terminology yes it is some Lawyer agency or what not, but result is the same. If someone can sniff your transport regardless who it is end result is the same, you do not have privacy and idea that you can copy something for your own or your family use is just plain wrong.

I mean you can, we can do "anything" but there are repercussions for each action.


There is no need for any sniffing for the above scenario to happen.

It’s literally just using the P2P nature of bittorrent to get peers’ IP addresses (you can do that too! Just start any torrent and look at the peers tab in your client), then using the legal tools to request data about a person breaking the law using such and such IP address.


That is true but unless static address why would anyone give you exact geo location of the IP address?!

If you extend this to everything you can have massive surveillance without cookies, MAC address of device, IP address for each package and you know who is accessing what kind of content on internet. So, why wait whenever someone reads article about class 1 drug just brake his door and arrest him, isn't it ?! I mean fork privacy, democracy, and judicial process, just lets immediately arrest everyone :/

Anyway, in German scenario how can you certify that someone was not hijacking your router?

(As per friends case, they had friend who was sleeping over and connected to their Wifi ...)


The sniffing relies on people trading files using p2p connections (and exposing their IPs) and lawyers getting the user of the IP at that time from internet providers, either via court order or some other back channel. There is no deep packet inspection.

Some lawyers are even using sites similar to https://iknowwhatyoudownload.com/

It probably costs less to pay the amount than fighting it in court. I think it's capped at 450 Euro or something? But I know some people who got scot free by merely having a lawyer send a response.


You can get the exact geo location of an IP address in the US or almost any other country too. Don't even need a court order, just pay for an expensive GeoIP Database, which will work 99.9% of the time to get someone's postal address by zooming in on Google Maps.

In United States, copyright law explicitly allows for copying that is essential to operating a piece of software.

That is a big part of why companies try to claim they never sold you a copy in the first place, only licensed it.


Is there any legal precedent on what qualifies as "copying"? By the time you are even presented with the license agreement, you already copied the program several times (unless it is a thin installer that litterally avoids downloading the content until you accept).

Well in this case of a video game. There was a loader loading the image into ram then hot patching it. They deemed the loader copying it into ram was copying. IANAL but sometimes they take the term copying very literally.

I would assume this falls under Severability [1]. In most cases, the button you click on literally says "I accept", which the corporate lawyer would interpret in a similar way to signing a contract in full.

In other words, if I click "send" on my resignation email to my employer, but later argue in court that I totally didn't mean to actually resign, but only to check if my email program works, I may have a challenging case.

[1] https://en.wikipedia.org/wiki/Severability


How do they know that I didn't patch the binary to replace "I accept" with "I reject"?

> Do you know for example weather you have licensed software to Judge so-and-so here?

I'm not a lawyer but I don't think software licensing is legally required to work in this way. These days, OEM Windows licences bind to the hardware, not to an individual.


Not to validate your argument but that’s for OEM (not to mention for Windows).

I think it's was a conceptual comment

Yes, point being that it seems absurd for a company to claim it has licensing agreements with a large number of people but doesn't even know who they are.

Seems like a very practical approach to the problem. If this legal framework is enforced, then here's what will probably happen:

- Big name software vendors will accelerate replacing one-time purchases with subscriptions

- Many small name software vendors will allow users to resell their software, and raise prices to compensate

- Special pricing e.g. for students will go away

- Code that checks for valid license keys will still be used to ensure that people aren't making new copies of the software and selling them

- The Appstore model will eventually have to change so that people can resell the apps they purchased


I doubt this will actually happen because of such ruling - not that it wont happen, but at most said ruling will be the excuse, not the reason (reason being plain old greed).

It is like the false dichotomy between paying for software vs paying with your data: developers can simply do both (and many are doing both). Or, in games, the idea that DLCs, microtransactions, etc are "necessary" due to the high costs of development when in reality this is just an excuse and they only exist because they provide extra money and the companies can get away with it.

So similarly to the above, subscriptions, higher prices, etc will happen not because the developers have to use them but because they are simply more profitable and since a response like "we did it because we wanted more money" isn't exactly PR friendly, they'll just put the blame in the vague and far away direction of EU and other similar scapegoats.


> - The Appstore model will eventually have to change so that people can resell the apps they purchased

Unfortunately, courts have upheld the special protections that DRM measures are afforded. So while you may in theory be able to resell software, DRM may still prevent you from making use of that software. Afaik that is unfortunately still legal.


Just to be clear, the courts in these parts don't have any choice about that. If statute law provides for those protections, the courts must decide cases accordingly (unless, for example, they are found to conflict with some sort of human rights law that has priority).

What is particularly unfortunate in these cases is that a lot of the worst copyright-related requirements aren't even set by national governments (or other quasi-democratic bodies like the EU) but rather in the back rooms of international conferences where there is then a big vote on some big international agreement that includes them. Then everyone gets to make a DMCA or EUCD or other local equivalent that does nasty things like adding DRM protections that effectively nullify half of the copyright bargain, and they can mutter something about "international law" or "treaty obligations" and point the finger at some nebulous, unaccountable international diplomacy exercise to deflect the blame.


So it has been nine years and still I cannot resell basically any software I buy. Seems fairly toothless to me.

Have you taken to (small) court any platform that refuses you that resale ? Probably not, can't bother / don't have the time nor money / ... Neither have I, just to be clear.

That's why these cases end up being solved once consumer associations go to court in the name of their members. Eg UFC Que Choisir went against steam and won in the first court here in France, it was posted on HN a few months back. Now it needs to go all the way to a final decision.

If you're wondering "what can I do", either take them to court, or donate to your local consumer association and make sure your issues are known and heard by them.


> If you're wondering "what can I do", either take them to court, or donate to your local consumer association and make sure your issues are known and heard by them.

Which is precisely what makes it toothless and a waste of tax payer money. If it costs impractical amount of time and money to assert your right, then does that right actually exist?


In France a small claims request is free (a couple forms to fill), do not require a lawyer and you have virtually no need to go to court. Small claims court are also pretty fast, though in that specific case it's pretty much a given that it would be appealed and escalated to higher court on the first such trial.

It does NOT costs impractical amount of time and money to assert your right. It's simply that EU citizen are much less used to go to court over what they consider trivial things, eg for a 20€ steam game.


The thing is that citizens shouldn't have to be doing any of it.

> It's simply that EU citizen are much less used to go to court over what they consider trivial things, eg for a 20€ steam game.

If it takes few hours to find out where to lodge the case, fill the forms and all that then be anxious about the outcome for considerable amount of time, this is already way more expensive than 20€ even if the request itself is free. Even if you win, you'll lose.

Instead of sitting on their bottoms, the civil servants should be actively going after companies to make sure they are acting lawfully. I think much more sensible would be a complaint system that would trigger an investigation into a particular company and then solving it for all users instead of clogging the courts with individual claims that could go on forever (as in thousands customers lodging thousands requests for the same thing).


What do you mean? UsedSoft vs Oracle is why software Eulas are toilet paper in EU and you can buy $10 Windows licenses from recycled computers.

Great, now if we could also agree that people are allowed to sell their ebooks then that'd be amazing.

And music, and movies. I love the idea, but how do you manage this without some form of intrusive DRM or fingerprinting of machines combined with DRM?

Watermarks seem the least intrusive solution. You can go a bit too far with these kinds of things though. Petty theft remains petty theft, even if it's digital, and isn't really the kind of thing that warrants intrusive surveillance.

Blockchain!

That's a recipe for more DRM, not less

Sacrificing rights to avoid DRM would be winning the battle but losing the war IMHO.

NFTs to the rescue?

Maybe blockchain can make digital goods be transferable.


Good news? Is there any downsides?

Old news but definitely good.

No downsides that I can see for the consumers.

Sadly we have since started seeing all big companies move to a SAAS subscription-based model so in practice it seems to become less relevant with time as it's only meaningful on software under perpetual licenses.

But at least Windows Server is still a big one that can save a lot of money -and that can also help struggling/downsizing companies by allowing them to sell licenses they no longer need.


Depends on your viewpoint. The current mess with software rentals and cloud-based everything is (among other reasons) a consequence of this.

However, maybe people will see the light and go with free software instead (as in freedom, not beer, etc).


Free software is a great solution for software, the more people have that attitude and help fund, contribute to and drive the usage of free software, the better it becomes.

Unfortunately, it doesn't necessarily work for "entertainment", because entertainment is consumable. You always want new music, new movies, new games, I don't think we've found a way to make those free (libre) yes.


To start developing free software you need to be in already pretty good position financially or in privileged one where someone else pays your bills no matter what you do (some academics are in the position). For me if only free software was the choices I would be first forced to go work for some evil corp to make money and then maybe start my project at some point having much less time and energy.

Making something a lot of people want and charging them for it is an awesome feature of copyright law. I don't want it to go away.


Note that this is from 2012

Yes, this is most recent information that I have found https://www.itassetmanagement.net/2016/10/31/secondary-softw...



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