On Thu, 04 Jun 2009 15:52:40 -0700, Darren New wrote:

> But there are various limitations on how you can enforce such a thing.
> For example, say you buy a game, open the CD, put it in your drive,
> install it, and then it asks you if you agree to the license. Will the
> game store take that back if you didn't accept the license at that
> point?  If not, you bought it under copyright.
> 
> The box doesn't say they're selling you a license. It says they're
> selling you a copy of the game. If you get it home and find you only
> bought a license, you could probably claim bait-and-switch.  Plus, it's
> still the case that a license can't take away rights granted to you by
> copyright law. That's exactly what the Copywrite v Prolock case was
> about.

Of course, then you'd have a case to be made against the retailer as 
well, that they should allow you to return the game if you can prove you 
didn't accept the license.

But at the same time, the license can't take away rights granted under 
copyright law, sure, but that's what the software companies are trying to 
do - prevent anyone from getting rights through copyright law by not 
selling the software to you, but rather selling you a license to use the 
software.  Copyright then applies to the license rather than the software.

At the time the Prolock case was heard, this type of licensing 
arrangement wasn't very common, and you actually did purchase a copy of 
the software rather than a license to use the software.  That's what the 
software companies seem to me to be trying to do with the new licensing 
of software, to work around the Prolock ruling by saying "well, you 
didn't buy the software, you bought a license to use it.  It's like a 
rental agreement."

And with a rental agreement, the landlord can kick the tenant out if the 
landlord determines that the tenant violated the rules of occupation 
(like smoking in a property that's legally designated as a non-smoking 
property by contract).

Jim

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