Software publishers generally insist that their products are Licensed, Not Sold -- and that they therefore can deprive you of the fair use rights you'd otherwise have with, say, a book or a music CD. But our recent discussions about copy protection have prompted several readers to point out a contradiction in the software industry's way of thnking.
"The recent gripe about DRM in the little kid's game reminded me of an old gripe of mine," wrote one reader. The CD for his kids' favorite game -- a copy-protected Broderbund product that prevented making a backup copy -- had gotten too scratched to load. "I contacted Broderbund and requested to pay to swap media. They said they had no more media and no way for me to recover the game. They would not even provide for a download copy or some other arrangements. The game was a few years old and I had all of the material to prove ownership, but now all I had was a useless CD."
But if the game was licensed, not sold, shouldn't he still have a right to a working copy? "It really drove home that the software companies want the best of both worlds," the reader with the defunct Broderbund CD says. "They claim that they are not selling you the program on the CD but rather licensing you to use the software. When the software becomes unusable, they switch their tune and tell you that you own a physical CD that you have damaged and you no longer have your license to the software."
In another recent discussion about software DRM, an anonymous reader argued that whether products are licensed or sold is still an open question. "The vendors want you to believe this, but there is no precedent case to support it," the reader wrote. "If loss of the activation - or the CD - results in loss of use, then they are NOT licensing it, they are selling it. If it were truly licensed, then they would be responsible for continued service. And shrinkwrap-style licenses -- where you read the terms after you've accepted them -- also negate the legal contractual aspect necessary for a purchase to be a license instead of an outright acquisition. But no one with deep pockets has taken this issue all the way through the legal system to set a precedent one way or the other."
If software is actually licensed, not sold, then the customer's right to use it remains despite damaged media, crashed drives, or malfunctioning DRM. If software transactions are actually an ordinary sale of goods (as many legal experts believe, by the way), then customers' fair use rights must remain intact. One way or the other, software publishers at least should be consistent.
So license or goods -- what do you think? Post your comments here and see what your fellow readers have to say, or write me directly at Foster@gripe2ed.com.
1:06:06 AM 
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