selling licenses if company reorganizes

[Anonymous]

Anybody been through it and lived to tell about it? I'm curious whether is it possible to sell some licenses if a company reorganizes, changes names, etc? Sometimes partners decide they've had enough, and things change ever so slightly... I'm seeking some general guidance and maybe a description of pitfalls/things not to do as well as any suggestions how to approach this "if it should apply". Caveat: I don't like reading license agreements or talking to my reseller - so please do me a favor & ignore the question if you are feeling the urge to advise me in that direction.

[Anonymous]

That last post was unnecessary. Contract law is only binding when it obeys the the letter of the law. In the case of a sale, a contract that says you cannot sell what you bought is not binding in that part, because it is illegal. -- David Wishengrad President & CTO MillLister, Inc. Software for measuring and stretching multiple 3D solids. Http://Construction3D.com

[Anonymous]

By your logic and the supposed instruction of your attorney, if the contract said you had to kill someone then you would be required to do it. Killing is illegal and therefore you are not bound to those terms of the contract. There is noting different in this case. -- David Wishengrad President & CTO MillLister, Inc. Software for measuring and stretching multiple 3D solids. Http://Construction3D.com

[Anonymous]

You cannot have a labor contract with an employee that is in violation of the labor law. Here is an attorney backing up what I am saying about illegal contracts no being binding: http://www.denvica.com/contracts.html Violation of Law A contract between criminals to commit a criminal act or other acts violating civil, criminal or any law is illegal and unenforceable. Illustrations of illegal contracts: gambling or wagering contracts, contract for services without appropriate licenses or permits, unreasonably broad (duration, geographical restrictions) non-competition contracts, or lending contracts made in violation of state usury laws. and another: http://en.wikipedia.org/wiki/Contract 2) Escape from contract: A party may in some cases escape obligations established by a contract for one of the following reasons Violation of a public policy or illegality and another: http://www.attorneys.com/li/legal_topics.cfm?i_Display=2&LN_ID=52 CONTRACTS DEFINED A contract is an agreement that the law will enforce. Contracts can be oral or written, although in certain cases, the law requires the contract to be in writing to be enforceable. The 'Common Law', that is, rules made by judges in the course of deciding cases (as opposed to statutes enacted by legislatures) is the source of most contract law. For certain types of transactions, the Common Law has been incorporated into state statutes. A valid contract must represent a 'meeting of the minds', that is, an understanding on the essential terms of the agreement. Illegality Contracts that require either party to perform an illegal act are unenforceable. -- David Wishengrad President & CTO MillLister, Inc. Software for measuring and stretching multiple 3D solids. Http://Construction3D.com

[Anonymous]

You know, Cadaver, it seems that the intent of many attorneys and the software companies is to push this issue into a gray area where the customer is too scared to sell for fear of legal action. The previous cases mentioned are basically irrelevant, because they did not contradict the letter of the law. The only logic that an attorney has is the argument, "The law says the owner of the software can do whatever he/she wants with it". "So they can sell it or dispose of it and we are just making a contract that binds them to a decision to dispose of it and that is binding". This would be fine, if there was anything in the law that said the owners rights could be contractually given away or if the law was not so specifically directed at this exact issue. It makes no such comment anywhere in it. The owners choice is "granted" , by law, for all time, in the situation of a sale. No allowance has been given to curb this specific right under the law. There are situations where you can release certain rights given in the law. An example would be an NDA. You have the right to free speech, but you agreed not to talk about a particular subject. Free speech is a broad law. In contrast, this law is not. It is specifically directed at the copyright holder and he is told that in this exact situation this his "limitation". It does not look like it can viewed any other way. He would be ignoring the intent of the law to make a contrat that tried to romeve what the law grants by telling HIM he is bound to loose this control. For the copyright holder to draft a contract to try and circumvent the law is a conflict of interest. I wonder if a company claims such a contract if their copyright is even binding at all anymore because of the apparent gross illegality of the provisions of the copyright law. I would think that the courts may find all copyrights invalid where the copyright holders fail to obey the letter of the law. Time will tell on this one. It is all right there in the copyright law and one needs go no further. A little common sense is all it takes. The law is directed at being fair and that is why the courts continue to uphold it. It would be a disaster to allow it to be interpreted in another way. Furthermore, the software company needs only do a true lease to retain distribution. It is not like they really need this changed. They just need to get themselves an attorney that understands what a true lease is make sure they operate their transactions accordingly. -- David Wishengrad President & CTO MillLister, Inc. Software for measuring and stretching multiple 3D solids. Http://Construction3D.com

[Anonymous]

Oh, what law states that such a contract cannot be made? If the condition of the sale is a contract not to resell, no laws have been breached. "Dave" wrote in message news:401d181d_3@newsprd01... > That last post was unnecessary. > > Contract law is only binding when it obeys the the letter of the law. > > In the case of a sale, a contract that says you cannot sell what you bought > is not binding in that part, because it is illegal. > > > -- > David Wishengrad > President & CTO > MillLister, Inc. > Software for measuring and stretching multiple 3D solids. > Http://Construction3D.com

[Anonymous]

Killing someone would violate some other statute, NOT reselling violates no such statute. Replace the word killing in your post with the phrase "not reselling" just to see how ignorant it sounds. "Dave" wrote in message news:401d18f7$1_2@newsprd01... > By your logic and the supposed instruction of your attorney, if the contract > said you had to kill someone then you would be required to do it. > > Killing is illegal and therefore you are not bound to those terms of the > contract. There is noting different in this case. > > -- > David Wishengrad > President & CTO > MillLister, Inc. > Software for measuring and stretching multiple 3D solids. > Http://Construction3D.com > > > > >

[Anonymous]

Except this one where the copyright holder is told what he must obey: http://www4.law.cornell.edu/uscode/17/109.html Sec. 109. - Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord (a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. Notwithstanding the preceding sentence, copies or phonorecords of works subject to restored copyright under section 104A that are manufactured before the date of restoration of copyright or, with respect to reliance parties, before publication or service of notice under section 104A(e), may be sold or otherwise disposed of without the authorization of the owner of the restored copyright for purposes of direct or indirect commercial advantage only during the 12-month period beginning on - You would have to pretty igrnorant to not jsut read and understand it. It is written in English. -- David Wishengrad President & CTO MillLister, Inc. Software for measuring and stretching multiple 3D solids. Http://Construction3D.com

[Anonymous]

The copyright holder is told that the owner is entitled in the stated law ( http://www4.law.cornell.edu/uscode/17/109.html) to resell and that this is his limitation. He can't therefore make a contract that creates the limitation that the law tells him he is not allowed to have and have it be legally binding. Many would consider this to be illegal and others would consider this to be okay to do, but not really legally binding. I have not found a single software company that was willing to disagree with this on record. They just leave it their EULA and hope you are scared and do not know better. Do you see Autodesk's attorneys running to this thread to discredit my comments? I think it is because I am right. You can draw your conclusions. On further review I came to the conclusion that you must not have thoroughly read everything posted. No harm, no foul. I'm done with this issue unless someone can provide something substantial to discuss. This is a dead issue and I do not want to keep repeating the same thing. Clearly no one seems to have anything to bring forward to make this an interesting discussion. I am convinced I am right. If you choose to believe otherwise that is fine with me. I think those that this really matters to will weigh my comments and those that disagree based on facts and content and will do what they feel like doing. Do what you want. I suggest you consult an attorney and show them this thread. If they have anything contradictory to say, then please feel free to state who they are and post their comments exactly. We would all be interested to see a conflicting opinion of a licensed attorney and/or judge. If one or more of you can bring it on I will contact some legal organizations to review both sides and state their opinion too. Until there is something real to argue against it, then doing so would be a waste of my time. -- David Wishengrad President & CTO MillLister, Inc. Software for measuring and stretching multiple 3D solids. Http://Construction3D.com

[Anonymous]

Yes it is written in English and says absolutely nothing about contractual agreements. The ruling and provisions you've posted are "copyright" laws which state resell is not in violation of "copyright" laws. Resell may, however, be in breach of contract. Ask your lawyer.

[Anonymous]

Dave - You said "Do you see Autodesk's attorneys running to this thread to discredit my comments? I think it is because I am right. You can draw your conclusions." I sincerely doubt that Autodesk's legal department is going to debate this issue on a discussion group. These are peer to peer support groups and not a place to make legal's not answering you a point in your arguement's favor. -- Anne Brown Manager, Administrator Autodesk Product Support Discussion Groups Discussion Q&A: http://www.autodesk.com/discussion Time to end this discussion since most of the answers lately are you to you??? > Dave wrote: > > The copyright holder is told that the owner is entitled in the > stated law (snip)

[Anonymous]

Fair enough Anne. I conceade I was wrong using that then. Thank you for the heads up. -- David Wishengrad President & CTO MillLister, Inc. Software for measuring and stretching multiple 3D solids. Http://Construction3D.com

[Anonymous]

Well, I guess we disagree. I reads to me that it does cover any sort of agreement or any sort of other lower law that conflicts with it by specifically telling the copyright holder that they are limited to and must accept the buyers right to resell or dispose of it anyway they want. The copyright holder entering into anything, such as creating a contract, that tries to control the resale is going against the spirit of the law's intent where they are told that they must accept this limitation of the copyright they hold. Now I already proved you wrong on a few other issues and you did not acknowledge it, but instead you just stated something else. I do not consider this a fair conversation as a result and would not expect anyone that worked a debate as you have been doing to be reasonable at this point of it. You can keep reading over it or interpret it anyway you want. You are certainly not going to concede any points, even when you do not have a response and/or been proved clearly wrong. I will try and refrain for posting the comments and corrected answers to save my time and the other readers unnecessary reading. Last. but not least, your original point of view did make me have to think about it a bit more and come to an even better understating of the law. I thank you for pointing me back to the copyright law again for an even better understanding of how and what the attorneys are probably looking at and why they are still leaving this clause in the EULA's. I am fairly certain that somewhere a software company is going to feel the heat pretty bad over it. -- David Wishengrad President & CTO MillLister, Inc. Software for measuring and stretching multiple 3D solids. Http://Construction3D.com

[Anonymous]

>Now I already proved you wrong on a few other issues<

er.. no you haven't. Merely stating your interpretation is no proof.

As I have said time and again, ask your lawyer, I have. We have made several aquisitions/divestments over the last few years involving the transfer of software licenses and our legal department is well versed in the current status of legislation. You may disagree all you like, but it would be to your advantage to do so from a better informed position.

[Anonymous]

For some reason you believe that if the law tells you you cannot force someone to do something you can just make a contract and it means more then the federal law telling you that you cannot have this right. It makes absolutely no logical sense that I can see. I see the scenario like this: The copyright holder is claiming copyright status and sells their software. Therefore the preemption clause is in effect for all matters concerning copyright law. The copyright law tells the copyright holder that the "..owner, is entitled, without the authority of the copyright owner, to sell..." This transaction is under the control of the copyright law and it preempts anything that effects what it has set forth. My opinion is that as a copyright holder, you cannot gain the right of control of a resale because the copyright law specifically states you are not allowed to have this control. It is defined in the law as your expressed limitation to claim a copyright. By making a contract that effectively gives the copyright holder control of a sale is prohibited under the law and the law does have preemption status. If you are NOT the copyright holder then maybe you can get around it. If you are, you are not allowed to have the control of resale because the law says that is your limitation to have a copyright. I would say it is a very clever attempt by certain software companies to retain control, but the higher federal courts are not buying it. I'll admit, I am not an attorney and there could be other laws that come into play that we have not addressed. I stand by my position based on what has been presented, but there could be some other laws that I am unaware of that effect this, but no one has quoted them and shown any logical way they can effect this stipulation. There could also be subtle differences between different types of transactions that make it work for one buyer, but not another. Getting legal advice from a real attorney is clearly in the best interest of the buyer. It also does not hurt to contact the software manufacturer and let them know your intent. It help to curb abuse, provide a good relationship between the new owner and the software company in the future. Just because a used software title is up for sale does not mean it is not great software. Companies want to sell for many different reasons. Most software companies are more then reasonable about a resale and really just want to be informed of where their seats are for several very good reasons. Some of which are really to make sure the new owner can get the most out of it and to protect them from being ripped off. software companies do not like having their name associated with a bad transaction. They might not even sell their product to a certain company because they feel it is not the right software for them. By contacting them you do get the benefit of their advice and possibly avoid making a purchase that they feel is wrong for you. -- David Wishengrad President & CTO MillLister, Inc. Software for measuring and stretching multiple 3D solids. Http://Construction3D.com

[Anonymous]

>For some reason you believe that if the law tells you cannot force someone to do something you can just make a contract and it means more then the federal law telling you that you cannot have this right<

Again, ask your lawyer. The court said that reselling the software does not violate COPYRIGHT laws, that COPYRIGHT laws do not control the resale of the software. Neither the court nor copyright law, have restricted contractual agreements to that effect. In addition to COPYRIGHT restrictions, one can, as a condition of sale, institute CONTRACTed restrictions. In so doing one may not be in violation of COPYRIGHT restrictions but may be in violation of contractual restrictions.

Adobe went to court, claiming COPYRIGHT infringements. The court, in the case you have posted, set aside the contactual agreement (the EULA) because it was dependent upon installation of the software. The defendant had not installed the software, and was therefore not bound by the contactual agreement of the EULA. Only then did the court address the COPYRIGHT statutes.

But again, don't take my word for it, ask your lawyer.

[Anonymous]

Like I said, that case is irrevelant becasue it did not contradict the other courts. >The court said ...., that COPYRIGHT laws do not control the resale of the software. Where was that said? -- David Wishengrad President & CTO MillLister, Inc. Software for measuring and stretching multiple 3D solids. Http://Construction3D.com

[Anonymous]

Exactly how? They sold the software & booked the profit. > .... I am fairly certain that somewhere a software > company is going to feel the heat pretty bad over it.

[Anonymous]

Good question! Because if a case is heard at a high level the judge may say that because the software company claimed both, control of the resale after the transaction of a sale and also copyright status, which are clearly conflicting and unfairly presented to the buyer, that they might say they get neither. They could loose all copyright protection for their software to date and are barred from suing anyone too. I would consider a software company loosing everything in case that they stated to be serious heat. I will tell you this: If was the judge I would consider that to be the fair and right thing to do. Shut then down and let them sue their own attorney's for malpractice. -- David Wishengrad President & CTO MillLister, Inc. Software for measuring and stretching multiple 3D solids. Http://Construction3D.com

[Anonymous]

Okay, I concede! I think you guys have raised a good point and I want to thank you for doing it. I have learned quite a bit. I wish it was more clear, but it appears we are getting down to terms everyone can understand. I am not saying that you or I are right, but at the moment their appears to be a clear gray area. I am going to try and explain what I see from your points now. If a software company no longer has the protection of copyright law, because they peruse the contractural agreement, then is this true for everyone or just this particular customer. Does the software company need to specify in the license agreement that they are relinquishing their copyright protection in lew of the contract for it to be a legally binding? Can they keep their software under copyright law and just give up their copyright status to those that have agreed to the contract or must they either keep it or give it up completely? Maybe the need to transfer to the buyer, part ownership fo the software itself in order to keep the copyright status on everyone else that has not agreed to the contract. It would seem unfair to me for a company to claim both and then be able to opt for contract protections over the protections granted in the copyright law without at least stating it first. I would think a judge would consider this approach unfair and might even remove the entire copyright protection the company was using to stop those not agreeing to the contract from freely copying and selling the software and also throw out the contracts. Who knows? I have a few emails out to legal people right now to explain this exact scenario. Hopefully I will get something decent back that I can share here that may shed some additional light into this gray area. It is indeed possible that there in no precedent set for this. -- David Wishengrad President & CTO MillLister, Inc. Software for measuring and stretching multiple 3D solids. Http://Construction3D.com

[Anonymous]

If Daves posts are 'from Dave to Dave', I think that makes no difference to the worldwide audience of people who may be following this thread with interest (as I am). Keep it flowing, I say.... D Burns UK "Anne Brown" wrote in message news:401E53DF.E6F3C1FE@autodesk.com... > Dave - > > You said "Do you see Autodesk's attorneys running to this thread > to discredit my comments? I think it is because I am right. You > can draw your > conclusions." > > I sincerely doubt that Autodesk's legal department is going to > debate this issue on a discussion group. These are peer to peer > support groups and not a place to make legal's not answering you > a point in your arguement's favor. > -- > Anne Brown > Manager, Administrator > Autodesk Product Support Discussion Groups > Discussion Q&A: http://www.autodesk.com/discussion > > Time to end this discussion since most of the answers lately are > you to you??? > > > Dave wrote: > > > > The copyright holder is told that the owner is entitled in the > > stated law (snip)