🚀 go-pugleaf

On Sun, 05 May 1996 12:51:52 -0700, Carl Steinhilber
<csteinhilber@graphicmedia.com> wrote:

>NOYDB wrote:
>: lcs@jumpnet.com    (Lindsay Computer Systems) wrote:
>: 
>: > 2. Even if these WFW packages are true MS OEM product, the legal ramifications
>: >    of MS Licensing are that unless ALL sellers have OEM Distribution Agreements
>: >    with Microsoft, all product becomes illegal, and even brokering those packages,
>: >    without ever even touching, or seeing those packages, subjects all parties to
>: >    the army of MS lawyers, etc., etc., etc.
>
>: Courts have already ruled on these issues.
>
>They HAVE?!? Which courts?? WHERE?!? 
>
>: This statement is not true. MS would like for you to think this but the law says
>: that I may sell any property I own, period.
>
>Therein lies your confusion. You don't OWN the software. It is
>LICENSED to you. What you pay for when you buy a piece of 
>software is the media on which it is distributed. The
>developer/marketer/manufacturer still owns the software which
>resides on that media.
>
>Thus, if you wish to format all 544(x 8) WfW disks and sell
>them in lots of 8 for $34, that's your legal right. But you
>can not sell the software.
>
>~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
> Carl Steinhilber         csteinhilber@graphicmedia.com
>~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Carl:

	Before you start talking about what is and isn't law, please
tak a course in Business (commercial) law at your local college.

	I did - and got surprised at what REALLY goes on in the legal
system. perhaps the most important point that my instructor made to us
was "The LAW is what the JUDGE decides, not what the legislature has
printed up."

	The Court system (U.S. and State) have decided time and time
again that once an item is put up for sale, and sold, in "the Ordinary
Course of Commerce" the Item passes free and clear, without any
restraints, between the seller and the purchaser. Microsoft can Mumble
and Froth about how EVERYONE in the chain between their warehouse and
Joe Blow, Naive User, must be part of a contractual agreement, but
place that in front of a Judge and Microsoft will Lose,lose,lose.

	Remember "Shrink-Wrap" Licences? Where opening the box bound
you half-a-different way to Sunday with obligations?  When that hit
the Judges Bench, the Judge ruled against the agreement - anf the
company that tried to enforce it, so fast it hurt the plantiff's
attorneys.

	The only real thing that Microsoft can do is to discover where
those copies came from, then try and punish who sold them in th first
place - and even then Microsoft can't do much, unless it wants to get
hit with a Lawsuit claiming that Microsoft is "engaged in restraint of
trade" (trying to create a monopoly).

	So, to whoever is trying to sell the W4W sets, best of luck -
and give me a cal, I might want to by a few sets!

	Richard Molpus
	(817) 446-3682	


	Oh, by the way, a court case that addresses this issue?

	Check:
		 Independent News Co. v. Williams
		293 F.2d 510 (3rd Cir. 1961)

	Independent  was the Plantiff, Williams the Defendent
	Case was in Pennsylvania
	Williams won.

	The judge ruled that when an item is sold in the normal course
of trade, it becomes the property of the buyers, and may be used/sold
by the buyer as is seen fit. 

	In this current case, Microsoft is (in your eyes) able to deny
someone the right to sell a Microsoft product, because Microsoft
insist that it eternally retains ownership of the item. Because of the
"Licence" that Microsoft grants to you, they then can insist that they
can stop you from passing the item onward as they see fit.

	The Independent News case addressed that point - and shot it
down in technicolor flames.  go read the Case if you doubt my words.
It is commonly included in most business Law textbooks.

	In addition, the courts have refused to support most (not all)
of the "Licences" that software companies splash on their products.
I'll leave it up to you to discover WHY the courts have ruled those
"Licences" invalid.


Richard Garrett Molpus	|  "He can't even run his own life
R.M. Assembly		|     --- I'll be dam'd if he'll run mine."
"Legal profit our Aim."	|