EULA question

[Clover]

Can a software company legally prohibit the resale of their product?

Specifically I am talking about Alpha Omega's Switched on Schoolhouse.

This year they came out with their second edition. They forbid the resale of this product.

In years past with their 1.0 resale was allowed, but now they are forbidding the resale of that as well.

Where does that leave a buyer who is dissatisfied with the product or is finished with it?

They have sent cease and desist letters to message groups that allowed sale messages posted, and have ebay yanking sales of all used versions.

I'm kinda' baffled here.

[SonicVanguard]

Well by agreeing to a EULA, you are agreeing to their terms or use. It would be my understanding that they can specify how their product is used.

You must remember, they created the software and own it, you are only licensing it's use when you buy it. You do so under their terms.

[Clover]

A little more on this. The company thinks that reselling their material is a copyright infringment. I can't see how that is.

[SonicVanguard]

Well, they sold you the right to use their software. And they can retain the right to the distribution of their software - even if after the rights of use have been granted to you.

HTH.

[RayH]

The question is do you have the wherewithall to fight their company lawyers? You may be right. But justice costs!

[doctorgonzo]

As has been pointed out, when you buy software, you have no claim to all the 1s and 0s that make up the program. What you are paying for is the right to use the software.

Seeing as how those 1s and 0s still belong to the software company, they can certainly tell you that you can't sell it and make a profit for yourself.

You can't really think of software as a physical thing that you are paying for, and that you can give to somebody else. Purchasing software is like purchasing a service. You can decide halfway through a movie that you don't like it, but you probably aren't going to get your money back and you can't sell your ticket to somebody else so they can use it, on account of the fact that you only saw half the movie.

[SonicVanguard]

Originally posted by RayH The question is do you have the wherewithall to fight their company lawyers? You may be right. But justice costs!

You may disagree once you've read a EULA. And I mean read it, not glance over it. Most EULAs forbits re-sale without the concent of the content creator.

[RayH]

The EULA's say a lot of things. It doesn't make it legal.

[Clover]

It's an interesting read, the problem is it leaves room for interpretation. This software has been around for a long while, and now that they come out with the new version they decide to put all the limitations on it. The problem I am running into is they are forbidding the resale of their old software as well, and are policing the homeschooling board and ebay. The old version has always been resold by homeschoolers in the past. Anyway, thanks for your comments.

[SonicVanguard]

Originally posted by RayH The EULA's say a lot of things. It doesn't make it legal.

Well...the minute you click that Accept button, it's legal in every court in the union. It's a binding agreement just like any contract.

Simplely because someone doesn't like it (or in most cases didn't read it), doesn't make it illegal. You don't honestly think companies would compose such a document without having their lawyers run over it with a fine toothed comb?

The bottom line is: It's their creation...they control every aspect of it's use. We live under this disilussion that when we buy a software package, the software is ours. On the contrary, the software belongs to the creator of the software - we are buying the right to use it.

[Confused]

Originally posted by SonicVanguard Well...the minute you click that Accept button, it's legal in every court in the union. It's a binding agreement just like any contract.

It's not legal until a court says it's legal. There have been many contracts that have been successfully challenged after signing. Also, there have been many cases where a lower court will rule one way only to be overturned by a higher court. And on occassion a lower court rulling will be overturned by a higher court and then upheld on appeal by a even higher court. Hence the reason for Ray's statement.

So if you have the time and money, you can challenge the EULA and get a final determination of the legality or accept it as written.

[Trent Steel]

The question I have, does the EULA of the older piece of software have the stipulation about not being able to resell it? Or does the new version have a retroactive statement that applies to the older version? From the way its being discribed I am interpreting it that the old version does not have the stipulation, so they cannot amend it to exclude resale of the old version of the product. I would also tend to agree that you should be able to sell the software once your done using it, but that does not help you out any. If you could post a txt file of the original EULA then maybe other board members could offer further insight onto what is and is not allowed.

[Clover]

This is the old license. Am I totally off the mark?
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~


Software License Agreement, Disclaimer of Warranty,
and Limitation of Remedies


By installing this software package, or using or allowing others to use the contents of this package, you are agreeing to the terms, conditions, disclaimer of warranty and limitations of remedies set forth below.

Software License Agreement

1. Alpha Omega Publications. "Alpha Omega" does not sell any title or ownership rights or interests in or to the enclosed software program. By purchasing this product, you are only purchasing a non-exclusive license to use the enclosed software program. Alpha Omega (or other parties from whom it has acquired the software program) reserves and retains all other rights, title and interests (including copyrights, patents, trademarks and service marks) in and to the enclosed software program. The purchase price paid for this product constitutes a license fee, in part, for the use of the enclosed software program. The other part of the purchase price covers the enclosed physical optical disk or other physical media on which the software program is recorded or fixed. Although the purchaser of this product will not own the enclosed software program, the purchaser will own the physical optical disk or other physical media on which the software program is recorded or fixed.

2. The allowed use of the enclosed software program under this License Agreement is limited to the following:
(a) The software program may only be used in a single computer (i.e., with a single CPU) at a single location. The enclosed software program, as recorded and fixed on the enclosed optical disk (CD-ROM) or other media, may be physically transferred from one computer to another as long as the software program is only used in one computer at a time. The enclosed software program may not be electronically transferred from one computer to another (over a network or otherwise).

(b) The copying, reproduction, duplication, translation, reverse engineering, adaptation, decompilation, disassembly, reverse assembly, modification or alteration of the enclosed software program (or accompanying written materials) is expressly prohibited without the prior written consent of Alpha Omega, regardless of the form or media in/on which the originals or copies may exist. The merger or inclusion of the enclosed software program (or accompanying written materials) with any other computer program, and the creation of derivative works or programs from the enclosed software program (or accompanying written materials), is also expressly prohibited without the prior written consent of Alpha Omega.

(c) The enclosed software program is licensed to the purchaser of this product, and may not be rented, leased, sold, assigned, transferred, re-licensed, sub-licensed or conveyed for any monetary or other consideration. Any attempted rental, lease, sale, assignment, transfer, re-license, sub-license, conveyance, gift or other disposition of the enclosed software in violation of this license is null and void.
Any violation of this License Agreement by the purchaser or any user or recipient of the enclosed software program may also violate applicable copyright law and could result in civil and/or criminal prosecution. You may be held legally responsible for any copyright infringement that is caused, encouraged or allowed by your failure to abide by the terms of this License Agreement.

3. This License Agreement shall remain in effect until terminated. This License Agreement will terminate automatically without notice from Alpha Omega in the event any provision of this License Agreement is violated by the purchaser or any other recipient or user of the enclosed software program. Upon termination, the purchaser, or any other party in possession of this product, shall destroy the enclosed software program and all accompanying written materials.

4. Alpha Omega may create, from time to time, updated versions of the enclosed software program. At its option, Alpha Omega will make such updates available at a cost, and on such terms and conditions, as Alpha Omega considers appropriate in its sole discretion.


Disclaimer Of Warranty And Limitation Of Remedies

The enclosed software program and accompanying written materials (including instructions for use) are provided "as is" and "with all faults", and without express or implied warranty of any kind. Further, Alpha Omega does not warrant, guarantee or make any representations regarding the use or the results of use of the enclosed software or written materials in terms of correctness accuracy, reliability, currentness, or otherwise. The entire risk as to the quality, results and performance of the enclosed software program is assumed by you even if the software program or written materials are defective. You, and not Alpha Omega or its dealers distributors, agents, or employees, assume the entire risk and cost of all necessary servicing, repair or correction.

This product is not covered by any warranty of any kind, either express or implied including but not limited to any implied warranties of merchant ability or fitness for a particular purpose (even if Alpha Omega or its dealers, distributors, agents, or employees are aware of the intended use of this product). No oral or written information or advice, suggestions, or recommendations given by Alpha Omega or its dealers, distributors, agents, or employees shall create a warranty or in any way increase the scope of this warranty and you may not rely on any such information, advice, suggestions, or recommendations. Some states do not allow the exclusion or limitation of certain warranties. You may have other rights which vary from state to state.

Neither Alpha Omega nor anyone else who has been involved in the creation, production, distribution, or delivery of this product shall be responsible or liable for any indirect, special, consequential, or incidental damages (including damages for loss of profits, business interruption, loss of business opportunity, or information and the like) arising out of the use or inability to use this product even if Alpha Omega has been advised of the possibility of such damages. In no event shall Alpha Omega ever be liable or responsible for any damages or loss in excess of the purchase price paid for this product. Some states do not allow the limitation or exclusion of certain remedies or damages, so the above limitations and exclusions may not apply to you.


Acknowledgment

You acknowledge that you have read this license agreement disclaimer of warranty and limitation of remedies, understand them, and agree to be bound by their terms and conditions. You also agree that the provisions set forth above are the complete and exclusive statement of agreement regarding this product, and supersede all other advice, suggestions, recommendations, proposals and prior agreements, oral or written, and any other communications relating to this product and the subject matter of this license agreement, disclaimer of warranty and limitation of remedies.

You also acknowledge that, if it were not for the allocation of responsibilities and risks and the limitations and exclusions of warranties, remedies and damages set forth above, the purchase price for this product would be substantially higher.

Should you have any questions concerning the above or this product, or if you desire to contact Alpha Omega for any reason, please contact, in writing:

Alpha Omega Publications, 300 N. McKemy Ave. Chandler, AZ 85226-2618.

Copyright © 2002 Glynlyon Inc., All rights reserved

[RayH]

For the current version, it probably is legal. As for being retroactive to former versions if such was not specifically mentioned and ALLOWED to occur, it probably isn't. The key is ALLOWED.

But that's going to take court action to resolve.