Okay, here's the problem. The very language that you used, implied that there's an issue. "Licensee." That means they're not an owner, so no sale occurred. Also, there's a case about patent exhaustion that you'll hate, but it is Mallinckrodt v. Medipart 976 F.2d 700 (http://en.wikipedia.org/wiki/Mallinckrodt,_Inc._v._Medipart,_Inc.) and it speaks a little to what's happening here.
Also, the idea of getting around a patent through recycling of a particular component and reusing it in one's own product would frustrate the patent holders ability to exclude others from utilizing the technology without licensing it. I can almost guarantee Apple will win this suit.
On your first point, legally the software manufacturer would HAVE to refund you. If they don't you can take them to court.
On your second point I'm not 100%, but there's some distinction here. First, you're agreeing to terms prior to your "use" of the software, and if you disagree with how they want you to use the software, then you have a right to return it. As for the painting example, if you bought a painting, and then all the sudden they slapped a bunch of use restrictions on it, again, you should be able to return the painting to the individual owner, however, it's unlikely that they would present the use after the sale.
I know it seems strange, but obviously, the software companies do what they do for a reason. It's a pain in the ass to return software BECAUSE THEY WANT IT TO BE. It means they'll get less returns. I know when you buy a disk it feels like you're buying something. But like they say in the case above, the purchase IS NOT the physical CD, it's the software contained on it. So, prior to your USE of the software, not your purchase of the CD, you have to agree to the terms of the EULA. Again, if you disagree, you can return it to the manufacturer if the retailer you bought it from won't take it back.
Okay, look. Contracts can say whatever they want. If you don't read them, without any extenuating circumstances or unconscionability, courts will uphold them. Saying EULA's should have no legal standing is basically like saying your agreements with your credit card companies should have no legal standing. Contracts are a basis on which our country runs. It's the fabric of business in the US and around the world. Again, if you object to the terms of the EULA, then don't sign it. Return the product. You have a legal right to do so. Again, it's a pain, but it's not impossible, nor would it be viewed as unreasonable by the courts.
The owner of the bike can recover against you, or against the bike shop owner at their discretion under the common law. Again, you would then have the right to recover against the bike store or whomever sold you the bike.
In licenses such as these, if you object, your issue is not with the person who you purchased the software from (say best buy), it's with the individual issuing the license. So you are able to return the software to them for your money back, not to the retailer. This is true generally because the retailers won't take back the games once the shrink wrap is open. So you have to go through the arduous process of returning the software to the manufacturer. While this is difficult, it is not so difficult as to be unacceptable in the eyes of the law.
As for the changing of the terms. While this does happen, more than likely, if you object to the changing of the terms, and write to them stating such in writing, you should have some cover legally speaking. You may also be able to return the software if you object strongly enough to the terms. I'm not 100% on that, but it's probably a good bet that courts would allow that.
The problem is that all of this stuff is a pain in the ass. And we're so used to things being easy, that most people never want to go to the trouble of going through the steps to return software, or object to terms when they're changed. This leaves a great position for the software companies because they can write whatever they want into the EULA's and SLA's and more than likely not hear a thing about it.
Techdirt has not posted any stories submitted by Seamus.
(untitled comment)
Also, the idea of getting around a patent through recycling of a particular component and reusing it in one's own product would frustrate the patent holders ability to exclude others from utilizing the technology without licensing it. I can almost guarantee Apple will win this suit.
Re: Re: Re: Re: Re: Re: Re: Re: Licenses are Contracts
On your second point I'm not 100%, but there's some distinction here. First, you're agreeing to terms prior to your "use" of the software, and if you disagree with how they want you to use the software, then you have a right to return it. As for the painting example, if you bought a painting, and then all the sudden they slapped a bunch of use restrictions on it, again, you should be able to return the painting to the individual owner, however, it's unlikely that they would present the use after the sale.
I know it seems strange, but obviously, the software companies do what they do for a reason. It's a pain in the ass to return software BECAUSE THEY WANT IT TO BE. It means they'll get less returns. I know when you buy a disk it feels like you're buying something. But like they say in the case above, the purchase IS NOT the physical CD, it's the software contained on it. So, prior to your USE of the software, not your purchase of the CD, you have to agree to the terms of the EULA. Again, if you disagree, you can return it to the manufacturer if the retailer you bought it from won't take it back.
Re: Re: Re: Re: Re: Re: Licenses are Contracts
Re: Re: Re: Re: what about considering the actual circumstances
Re: Re: Re: Re: Re: Licenses are Contracts
Re: Re: Re: Re: Licenses are Contracts
In licenses such as these, if you object, your issue is not with the person who you purchased the software from (say best buy), it's with the individual issuing the license. So you are able to return the software to them for your money back, not to the retailer. This is true generally because the retailers won't take back the games once the shrink wrap is open. So you have to go through the arduous process of returning the software to the manufacturer. While this is difficult, it is not so difficult as to be unacceptable in the eyes of the law.
As for the changing of the terms. While this does happen, more than likely, if you object to the changing of the terms, and write to them stating such in writing, you should have some cover legally speaking. You may also be able to return the software if you object strongly enough to the terms. I'm not 100% on that, but it's probably a good bet that courts would allow that.
The problem is that all of this stuff is a pain in the ass. And we're so used to things being easy, that most people never want to go to the trouble of going through the steps to return software, or object to terms when they're changed. This leaves a great position for the software companies because they can write whatever they want into the EULA's and SLA's and more than likely not hear a thing about it.
Techdirt has not posted any stories submitted by Seamus.
Submit a story now.
Tools & Services
TwitterFacebook
RSS
Podcast
Research & Reports
Company
About UsAdvertising Policies
Privacy
Contact
Help & FeedbackMedia Kit
Sponsor/Advertise
Submit a Story
More
Copia InstituteInsider Shop
Support Techdirt