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Wrong, wrong, wrong!

This decision needs to be prominently publicized and repeatedly publicized.

You need to get it right before you repeat yourself again.

The softman case is about the distribution chain, not the end user. Softman won the case because it did not assent to any licensing terms. It purchased boxed sets of Adobe software and repackaged the CDs individually for resale. There was no license agreement for Adobe to enforce because assent is registered when the end user clicks the "I Agree" button during the install. Once that happens, the case becomes materially different from the facts of the Softman case.


Basically, if you bought a copy of something, it is your copy and you may treat it as you wish.

True up until you install it and agree to the license terms. The Softman case doesn't even go there because Softman didn't do that. It repackaged CDs.

This is what the court actually said:



(c) EULA Terms

Adobe argues that the EULA requires construction of the transaction as a license rather than a sale. The Court finds that SoftMan is not bound by the EULA because there was no assent to its terms.

i) Assent

Adobe contends that the EULA limits the consumer's ability to transfer the software after buying it. According to SoftMan, a hard copy of the EULA agreement is not enclosed with the individual Adobe software disk. Instead, consumers are asked to agree to its terms as part of the installation process. (Dracup Decl. ? 7.)

Courts have required that assent to the formation of a contract be manifested in some way, by words or other conduct, if the contract is to be effective. ... Defendants' position, if accepted, would so expand the definition of assent as to render it meaningless." Id. at 596.

In the instant case, the Court finds that there is only assent on the part of the consumer, if at all, when the consumer loads the Adobe program and begins the installation process. It is undisputed that SoftMan has never attempted to load the software that it sells. Consequently, the Court finds that SoftMan is not subject to the Adobe EULA.

< ... >

The Court finds that Adobe's EULA cannot be valid without assent. Therefore, Softman is not bound by the EULA because it has never loaded the software, and therefore never assented to its terms of use.

The Court finds it unnecessary to reach the question of the general validity of shrinkwrap licenses at this stage because the Court has determined that SoftMan is not bound by the EULA because there was no assent to its terms.


See that last part? The court doesn't even touch the question of whether the licence is valid after the end user gives assent, and it says so right out loud. You cannot point to the Softman case and say shrinkwrap licenses are not valid.

The complete decision is [url=http://www.linuxjournal.com/modules.php?op=modload&name=NS-articles/briefs&file=softman-v-adobe]here[/url]. You should read it for yourself before posting such rubbish.

Posted by: none none   Posted on: 11/28/03 You are currently: a Guest | Members login | Terms of Use

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