TECH Appeals court ruling threatens used software sales

[knickgnat]

As far as I know, I thought all the software I bought over the years was just that, bought, not leased. The money changers just don't quit.



Appeals court ruling threatens used software sales

September 11, 2010 By MICHAEL LIEDTKE , AP Technology Writer

(AP) -- A federal appeals court has sided with the computer software industry in its effort to squelch sales of second-hand programs covered by widely used licensing agreements.

Friday's ruling by the 9th Circuit of Appeals raised worries that it will embolden music labels, movie studios and book publishers to circumvent the so-called "first-sale" doctrine in an attempt to boost their sagging sales.

The doctrine refers to a 102-year-old decision by the U.S. Supreme Court that determined copyright holders can't prevent a buyer from reselling or renting a product after an initial sale, as long as additional copies aren't made.

It's a legal principle that allows used book and music stores to operate, as well as DVD subscription services such as Netflix Inc.

But a three-judge panel in the 9th Circuit concluded the first-sale doctrine didn't apply to used software programs that online merchant Timothy Vernor peddled in his store on eBay. Vernor had bought the unopened software, made by Autodesk Inc., at garage and office sales, without ever agreeing to the licensing agreement imposed on the original buyer.

That contract made it clear the rights to install Autodesk Inc.'s software were being licensed rather than sold, according to the 9th Circuit's interpretation.

Without a definitive sale, the first-sale doctrine is moot, the appeals court reasoned in its decision overturning a lower federal court in Washington state.

Autodesk, which is based in San Rafael, said it was pleased with the decision. The Software & Information Industry Association had filed documents supporting Autodesk's position in the case.

The ruling sets the stage for even more legal skirmishes over the definitions of a sale and a license, said Corynne McSherry, an attorney for the Electronic Frontier Foundation, a group fighting to set the boundaries of digital copyrights.

"I am sure there are going to be others (in the media) trying to find the magic words that prevent a buyer of intellectual property from being considered the owner," McSherry said.

Another round in the 3-year-old battle pitting Vernor against Autodesk seems assured. Vernor's attorney, Gregory Beck of Public Citizen, said he intends to ask a full panel of 11 judges in the 9th Circuit to review Friday's decision before considering a possible appeal to the U.S. Supreme Court.

For the moment, Beck and another attorney involved in the case, Sherwin Siy of Public Knowledge, said they expect the 9th Circuit's decision to have a chilling effect on the used software market.

That's something that eBay Inc. had hoped to avoid. The e-commerce company, based in San Jose, Calif., filed a brief in support of Vernor's legal arguments citing the protections under the first-sale doctrine.

Many other popular software programs already installed on home and office computers are covered by licensing agreements using similar language to Autodesk's programs, Beck said.

"That means the infrastructure already is in place for other software makers to say their customers don't really own those programs," he said.



©2010 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

 

[Ender]

This is why I do not believe in "intellectual property"; most of this is a sham.

 

[TECH32]

You don't actually own the software. You are just purchasing a license to use it. Hence the term "licensing agreement". You are bound by the terms of those agreements. Don't like it? Don't agree to it.

It's no different than "buying" a DVD which is licensed only for home use. You cannot use that DVD to charge admission to view it. That is excluded from the license granted you to use THEIR intellectual property.

 

[TECH32]

This is why I do not believe in "intellectual property"; most of this is a sham.

Really? Our Founding Fathers thought enough of it to specifically grant Congress the power to regulate it in the Constitution. Without IP, why would anyone want to right a book? Or invest in creating software? Or make a movie? Why would you do any of those things if anyone who wanted could just do whatever they feel like with YOUR work?

 

[Ender]

Really? Our Founding Fathers thought enough of it to specifically grant Congress the power to regulate it in the Constitution. Without IP, why would anyone want to right a book? Or invest in creating software? Or make a movie? Why would you do any of those things if anyone who wanted could just do whatever they feel like with YOUR work?

Maybe I should have said: This is why I do not believe in "intellectual property" as it us used today.

The Constitution says:

Article 1, Section 8 of the Constitution states: "Congress shall have the power to... promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" (US Const., art I. sec. 8, cl. 8.).

The problem resides in the fact that most authors, inventors, musicians, etc. do not benefit from intellectual properties laws, in today's world. It is the publishers, music companies, film companies, etc. that gain. You can bet that the original designer of said software is not receiving a dime from this legislation.

Inventors and artists are ground into the dust by these machines who make millions off of other people's "intellectual property", while the real inventor/artist/entrepreneur receives pennies on each $1000 made- if they are lucky.

 

[TECH32]

You can bet that the original designer of said software is not receiving a dime from this legislation.

Inventors and artists are ground into the dust by these machines who make millions off of other people's "intellectual property", while the real inventor/artist/entrepreneur receives pennies on each $1000 made- if they are lucky.

I'd take that bet. Most employees of big software companies (especially big software companies) own shares in the those firms. They will most certainly benefit from this ruling.

Also, there's more to getting an invention/software/book/movie "out there" than just creating it. Much more. I've been an independent software developer, and I'm now selling a book. I know how expensive it can be just to create a product, let alone market it and support it.

There's no guarantee that any product is going to make money, so when you use a publisher, they are taking the risk that the money they put into production/marketing/sales/support/etc. will be made back with a profit. Often times, they don't make that money back. When they do "hit it big" that money (hopefully) covers the losses they've taken on products that failed.

And if you doubt any of this, go write/invent something, and then try going it alone...

 

[Publius]

What they're doing here right now is manipulate the law and if there is no contract (paper) that you signed personally they sold you a product just like if you buy a new car and then try and say you can't sell it someone else some years later.

 

[Ender]

I'd take that bet. Most employees of big software companies (especially big software companies) own shares in the those firms. They will most certainly benefit from this ruling.

Also, there's more to getting an invention/software/book/movie "out there" than just creating it. Much more. I've been an independent software developer, and I'm now selling a book. I know how expensive it can be just to create a product, let alone market it and support it.

There's no guarantee that any product is going to make money, so when you use a publisher, they are taking the risk that the money they put into production/marketing/sales/support/etc. will be made back with a profit. Often times, they don't make that money back. When they do "hit it big" that money (hopefully) covers the losses they've taken on products that failed.

And if you doubt any of this, go write/invent something, and then try going it alone...

Been there, done that- still doing it.

All art/invention is a crap shoot plus, once "business" enters, ethics is usually thrown out the window, making invention and artistic achievement very difficult. Ex: Tesla was basically robbed by Edison.

The reason it is so hard is because certain businesses "own" the industry they reside in- no one else is allowed to function. (Go look up who actually invented television- a little-known fellow from Utah, who was never given credit and robbed of financial success.)

The film industry is a multi-million dollar sham that plays only with its friends- the music industry is finally going bye-the-bye because musicians are waking up to the fact that the industry is crooked.

I have had friends signed by major companies only to be shelved so that they cannot compete with other like groups already out there. This means they cannot produce any music under their own name and are basically artistically DEAD until the contract is over.

The constitution says: "by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

I have no problem with an artist/inventor making money off their product; I have a problem with businesses that rob these artists/inventors and then sucker the populace.

 

[TECH32]

Been there, done that- still doing it.

All art/invention is a crap shoot plus, once "business" enters, ethics is usually thrown out the window, making invention and artistic achievement very difficult. Ex: Tesla was basically robbed by Edison.

The reason it is so hard is because certain businesses "own" the industry they reside in- no one else is allowed to function. (Go look up who actually invented television- a little-known fellow from Utah, who was never given credit and robbed of financial success.)

The film industry is a multi-million dollar sham that plays only with its friends- the music industry is finally going bye-the-bye because musicians are waking up to the fact that the industry is crooked.

I have had friends signed by major companies only to be shelved so that they cannot compete with other like groups already out there. This means they cannot produce any music under their own name and are basically artistically DEAD until the contract is over.

The constitution says: "by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

I have no problem with an artist/inventor making money off their product; I have a problem with businesses that rob these artists/inventors and then sucker the populace.

So who robbed your friends? They signed a contract and presumably got paid for it. If they didn't like the terms, they shouldn't have signed. It doesn't matter what someone promises - all that matters is what's in the contract. No one held a gun to their head and made them sign did they?

 

[TECH32]

What they're doing here right now is manipulate the law and if there is no contract (paper) that you signed personally they sold you a product just like if you buy a new car and then try and say you can't sell it someone else some years later.

Sorry, but you're wrong. If you disagree, try taking that DVD you "bought" and charging admission to let others view it - you'll be in court so fast your head will spin. When you install software there is always a step where you "accept" the terms of the license. If you decline the software doesn't install. If you accept, you are bound by the terms of the license.

 

[Army Girl]

The software companies should let people do what they want after they pay for the software. Most of those who are interested in reselling are the ones who are always interested in getting the newest software and spend more on software...the bread and butter of the business.

 

[Ender]

So who robbed your friends? They signed a contract and presumably got paid for it. If they didn't like the terms, they shouldn't have signed. It doesn't matter what someone promises - all that matters is what's in the contract. No one held a gun to their head and made them sign did they?

TECH- to quote the Duchess from Alice in Wonderland: "You don't know much and that's a fact".

They signed a contact with a major record company (you do NOT get paid for signing- especially if you are not a major name at the time). These contracts are based on albums made and then sold; the musicians are under such a contract for usually at least 5 years.

Most musicians think that signing with a major label is a good thing- however, the Label does not have to record you- or if they do, they do not have to promote the album. Many musicians have been signed for the purpose of shelving them so that they will not be competition to another group. Labels sometimes sign 4 or 5 groups of the same genre and then shelve all but the group of their choice. The others are virtually dead until the contract is up.

This is a fact of life in the Music Industry.

 

[Kent]

What else can you expect from the 9th circus court.

 

[TECH32]

TECH- to quote the Duchess from Alice in Wonderland: "You don't know much and that's a fact".

They signed a contact with a major record company (you do NOT get paid for signing- especially if you are not a major name at the time). These contracts are based on albums made and then sold; the musicians are under such a contract for usually at least 5 years.

Most musicians think that signing with a major label is a good thing- however, the Label does not have to record you- or if they do, they do not have to promote the album. Many musicians have been signed for the purpose of shelving them so that they will not be competition to another group. Labels sometimes sign 4 or 5 groups of the same genre and then shelve all but the group of their choice. The others are virtually dead until the contract is up.

This is a fact of life in the Music Industry.

So they signed a contract where they didn't get paid, had no guarantee of ever being recorded, much less a guarantee they'd ever get paid anything at all?

Boy, that was pretty stupid of them wasn't it? And you blame the record companies?

 

[Mark Armstrong]

TECH- to quote the Duchess from Alice in Wonderland: "You don't know much and that's a fact".

They signed a contact with a major record company (you do NOT get paid for signing- especially if you are not a major name at the time). These contracts are based on albums made and then sold; the musicians are under such a contract for usually at least 5 years.

Most musicians think that signing with a major label is a good thing- however, the Label does not have to record you- or if they do, they do not have to promote the album. Many musicians have been signed for the purpose of shelving them so that they will not be competition to another group. Labels sometimes sign 4 or 5 groups of the same genre and then shelve all but the group of their choice. The others are virtually dead until the contract is up.

This is a fact of life in the Music Industry.

Sounds like the good grounds for a suit against the label.

As a comic book artist, I cannot fathom signing an exclusivity contract with a publisher that did not offer guaranteed work or similar compensation in return.

 

[Ender]

Mark Armstrong: Sounds like the good grounds for a suit against the label.

As a comic book artist, I cannot fathom signing an exclusivity contract with a publisher that did not offer guaranteed work or similar compensation in return.

Well wisdom comes with age and experience, they say. I would never sign anything without a good legal but many young & aspiring musicians have not had that luxury- and they paid for it.

Below is a critique of a book byprofessional entertainment lawyer, Peter M. Thall.

Record Companies Have Many Ways to Cheat Artists
Book Details Various Types of Deductions From Royalties

Mar 30, 2010 Brooke Saunders

Vinyl Record - Wikimedia
Peter M. Thall lists strategies in this classic entertainment law book that probably annoyed more than one record company.

Peter M. Thall's book, “What They’ll Never Tell You About the Music Business- the Myths, the Secrets, the Lies (and a Few Truths), is an easy to read, but comprehensive work that uncovers little known facts vital for any musician serious about their career. Thall worked for Simon & Garfunkel, Pat Benatar, The Cars, and many others.

Thall makes the point that in the book publishing industry a writer gets paid when the books start selling, but that is not the case in the record industry.

Artist Loses in Many Unusual and Unfair Ways

If an artist negotiates a typical royalty of 12 percent, and sells 100,000 copies, he or she should get around $2.00 per sale. Of that $200,000, at least $100,000 will go back to the label for recording costs, then the producer has to be paid, even before the artist.

To make things worse, according to Thall, the artist only gets 85 percent of the royalty because of non-existent breakage. The deduction goes back to the days of 78 rpm records, which did have a certain number of damaged product, but CDs rarely are returned.

Charges for “Packaging” are Needless

Then there is the packaging, that is another 25 percent deduction, also going back to the larger and more complex packaging for large vinyl records, hardly needed now for tiny CDs.

In the past, up to 30 percent of all records went through record clubs, which people growing up in the 1960’s and 70’s may remember, but are now rarely seen. But the deduction is still taken taken.

Then there is the 25 percent taken out for “packaged digital downloads,” though there is no packaging whatsoever for a digital download. But it remains.

Artists are Charged for Developing CD Technology Without Justification

Then you have what is called “new technology concession,” and that is an allowance for research and development to help the record companies keep up with the newest in mediums to capture music. Yet the Dutch division of Philips developed the CD on their own, and little further development is needed.

Thall goes on to detail other deductions always unfavorable to the artist. And unbelievably, the attorney for the artist cannot demand open accounting, as the label is not obligated to divulge or audit their books, unlike other industries that are far more transparent.

Legal Representation Critical for Musicians

With these daunting facts, the artist is required to have excellent legal representation, but few do. Many don’t have the finances to hire someone until it is too late, and few entertainment lawyers can invest their valuable time for unknown artists.

In the end, many musicians thrive without record labels, and use the abundant resources available to self-publish and sell their CDs and downloads at a far great profit, and stay debt-free.

Many of the bands you might see that get record deals could be so heavily in debt to their label they never make money. Others stagnate with many others on the roster because no one pays attention to them and nurtures their career over a long period of time.

In the end, if you get signed, make sure to get good legal help before signing any deals, because there are so many ways to get cheated.

Sources

* Thall, Peter M, What They’ll Never Tell You About the Music Business-the Myths, the Secrets, the Lies (& a Few Truths), Billboard Books, 2005, 340 pp. ISBN 9-780823-084456

 

[TECH32]

Well wisdom comes with age and experience, they say. I would never sign anything without a good legal but many young & aspiring musicians have not had that luxury- and they paid for it.

Below is a critique of a book byprofessional entertainment lawyer, Peter M. Thall.

So how is this different than ANY OTHER CONTRACT ANYONE signs? If you don't have good legal representation, chances are you're going to get the (very) short end of the stick - regardless of the industry. Why demonize the record industry?

 

[milkydoo]

Tech, there are two schools of thought in this thread, and in any industry today.

One is the 'dog eat dog' philosophy. If you're 'stupid', unwise and inexperienced, and you get screwed, well, tough crap.

Then there's the opposite approach. A fair shake. Reasonable deals. Credit where credit is due. Neighborly ways.

Not 'socialism' and redistribution, but just good old fashioned neighborly fairness.

The corporate world only cares about themselves. The laws allow them to expand like balloons with only token concerns for safety and fairness.

If civilization is going to survive, and progress, the old and corrupted 'dog eat dog' mentality is going to have to be left behind.

The music industry is a machine. It's 'caring' attitude towards artists always seems to magically coincide with maximum profits.

By definition, a music company that cares about artists, will never put profits first.

As to the OP, this sounds like a giant gas can being dumped on the fire of Open Source.

We're rapidly headed towards a critical mass whereby free/cheap open source ware will completely steam roll the bug riddled and poorly supported proprietary poopware.

Bring it on, I say. They're cutting their own throats. Fortunately there's no law yet that says you can't giveaway free software. Eventually, open source ware will be coupled with 'new' business models that will eradicate the old 'tough luck' models.

 

[TECH32]

Tech, there are two schools of thought in this thread, and in any industry today.

One is the 'dog eat dog' philosophy. If you're 'stupid', unwise and inexperienced, and you get screwed, well, tough crap.

Then there's the opposite approach. A fair shake. Reasonable deals. Credit where credit is due. Neighborly ways.

Not 'socialism' and redistribution, but just good old fashioned neighborly fairness.

The corporate world only cares about themselves. The laws allow them to expand like balloons with only token concerns for safety and fairness.

If civilization is going to survive, and progress, the old and corrupted 'dog eat dog' mentality is going to have to be left behind.

But that is socialism. That "gee, let's be nice" attitude is NOT what made this country an economic powerhouse. It was vigorous competition with minimal govt. intrusion. It's hard to believe that anyone who's lived in this country for the last few decades doesn't know that the music industry is cutthroat.

As to the OP, this sounds like a giant gas can being dumped on the fire of Open Source.

We're rapidly headed towards a critical mass whereby free/cheap open source ware will completely steam roll the bug riddled and poorly supported proprietary poopware.

Bring it on, I say. They're cutting their own throats. Fortunately there's no law yet that says you can't giveaway free software. Eventually, open source ware will be coupled with 'new' business models that will eradicate the old 'tough luck' models.

Umm...not so fast. Open Source is great, but it has it's own problems. When something goes wrong, companies want a single throat to choke. Companies pay big bucks to be able to put their hands on that throat because they don't want to hear "well, this guy in Denmark wrote that piece of the software for a college course and he's on vacation with his girlfriend in the Bahamas". Yeah, they can fix it themselves - but that's not what they want. They're not in the software business, they're in the X business.

OS is great for many things, but commercial software ain't going away anytime soon.

 

[Tygerkittn]

I quit spending $1200 a year on "Switched on Schoolhouse" software for my kids (three were home schooling at the time, now I have five home schooling) because the last year I bought it, after installing it, it said that I had to register or the software would shut down in two weeks.
After paying $400 for each grade, I also have to give them my personal information or it won't work for me? It was also a LOT harder to install, my DH is an engineer, it took him over a week because he had to take everything off the computer to get it to install and run, I assume they added so much DRM it made it impossible to copy and ALMOST as impossible for the legitimate owner to actually run it. That's why I quit buying EA games, the DRM kept them from working on my computer.
I made my own curriculum this year. Software can make things more convenient, but when they add all that crap to it, it loses that whole "convenience" edge.
The world got along without software for a long time. I can get along without it, if they're going to make it too complicated and buggy to use, punishing me, the legitimate owner, for the actions of a few pirates.

 

[WonderWhy]

An aside to correct an earlier error --

There are no intellectual property laws or statements in the US Constitution. None.

We have these laws because Noah Webster campaigned for copyright protection which existed in England, but not here.

 

[TECH32]

An aside to correct an earlier error --

There are no intellectual property laws or statements in the US Constitution. None.

We have these laws because Noah Webster campaigned for copyright protection which existed in England, but not here.

Article 1 Section 8 of the US Constitution states:

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

That grants Congress the authority to create laws for protecting intellectual property.

 

[Technomancer]

Whats the license on the software running on your computer in general? Used PC's that haven't been wiped and sold blank apparently are a risk. What about the software running even in a TV? Selling your used TV with its software that you don't even know about is right out as well.

And have you looked at the license for the software running your car? Hope you weren't planning on selling it for anything more than scrap metal.

And, of course, what happens if Ford decides that you have violated the license terms or decides to revoke your license for the software running your truck?


From what I read, it looks like the root of this case that is going to screw us over is what amounts to almost stolen software. If I read right and this is the case I'm thinking it is, the software packs were supposed to be destroyed as unsold or such, but ended up at a garage sale. Autocad decided to misuse the DMCA to stop the sales on ebay, but if they were genuinely concerned and had a real interest in it they should have acted on it as stolen property and tried to have charges placed for receiving stolen property.


If this ruling sticks, I hope someone with free time and money causes enough of a controversy to force these judges who cannot program their own VCRs to learn that the electronic age is a different creature.
--Have that someone sue all major sales companies for false advertising or fraudulent sales or whatnot on the basis that the stores like walmart/bestbuy/etc sell the software as though you're buying a copy when it's actually a rental. Sue all the software publishers for false advertising or such since the packages don't offer any indication you are only renting/leasing a license instead of actually purchasing a product.

And then of course, we have to make sure the concept of software being a leased/rented license applies both ways. The manufacturer/leasor is responsible for disposing or accepting the product back at the end of the lease agreement. And they would likewise be required to make it safely removed without damage of the surroundings (at the moment, an uninstall of anything more complex than a java applet is likely to leave trash and problems in your computer).

Then of course there are the responsibilities to maintain the product that they wish to keep holding actual ownership of. If I am only leasing or licensing the software, then if a disk is scratched I should be able to download a replacement copy anytime needed, since otherwise they would be suggesting that the software was a product I owned and had to replace on my own by buying another if the first is damaged.


The judges in cases involving software are going to have to start actually reading the contracts and terms of service as a whole to see that the majority are not realistic or capable of being upheld legally.
---And of course, what do I do with a copy license if I don't agree to the terms of service once I read them? They aren't on the box, and the store won't take it back if its been opened for me to read it in the first place. Will the publisher refund my money and accept return of the software?

 

[milkydoo]

But that is socialism. That "gee, let's be nice" attitude is NOT what made this country an economic powerhouse. It was vigorous competition with minimal govt. intrusion. It's hard to believe that anyone who's lived in this country for the last few decades doesn't know that the music industry is cutthroat.

Well, I prefer the more 'strict' definition of socialism commonly used, that being an ideology that is forced on the people of a nation by one's own government, albeit via the people.

I'm not suggesting that we have draconian laws that ensure that no one ever gets a boo-boo. I'm suggesting that a combination of reasonable laws and personal choice to conduct fair business, things would be better.

Of course, this will never happen if we don't choose to go in that direction.

There's more than one way to becoming an economic powerhouse. Unfortunately, people tend to choose the cut throat approach, which can do just as much damage as it does good, if not more. One example off the top of my head, amongst countless: Superior Betamax losing to VHS.

Bottom line: It doesn't have to be this way, but change starts with a choice.

Umm...not so fast. Open Source is great, but it has it's own problems. When something goes wrong, companies want a single throat to choke. Companies pay big bucks to be able to put their hands on that throat because they don't want to hear "well, this guy in Denmark wrote that piece of the software for a college course and he's on vacation with his girlfriend in the Bahamas". Yeah, they can fix it themselves - but that's not what they want. They're not in the software business, they're in the X business.

OS is great for many things, but commercial software ain't going away anytime soon.

And that approach has worked so well, that businesses have switched to open source OS's and software in droves, and continue to do so. Even Microsoft can't stomache their own junk OS for their web servers, and runs Linux (was in the news a few years ago).

Both approaches have their ups and downs. But the point here is that the tide has turned big time. Yes, it will still be a long time before a majority are running predominately open source ware, but if proprietary was doing it's job, open source wouldn't be gaining the ground that it is.

Proprietary is over priced, under supported, overrated, and even though you may have that one throat to strangle with a big fat name on it, the problem is..........thanks to the license agreement, the only thing you can do is threaten to strangle it; you can't actually strangle it. The best you can do is buy a competing product when the next budget comes around.....if it comes around.

At least with open source, repairs can be had quickly in many cases, and if you have the money to pay someone for a fix, then you can have it even quicker.

I'm not up on all of the business models being used with open source today, but there's always a new one around the corner for those willing to pioneer them.

People are tired of being stuck with junkware. Open source can be just as junky, but without the stuck and a hell of lot cheaper to boot.

 

[milkydoo]

Whats the license on the software running on your computer in general? ....snip.....

All great points, Techno. It's a can of worms that the industry.......various industries have tried to open many times before.

Monsanto is a good example, with their terminator gene seeds, which force people to buy new seeds every year, and if your organic crop is accidentally cross pollinated by the neighbors GM crop, they will sue you for growing GM crops without a license!

It amazes me how so many people, after all we've been through, still believe in the 'dog eat dog' way of doing things.

Legitimate, fair business is not hard to do, but we need legal standards that will protect those who conduct ethical business from those who would sell their own children down the river for an extra .02 cents on a share.

 

[lectrickitty]

Monsanto is a good example, with their terminator gene seeds, which force people to buy new seeds every year, and if your organic crop is accidentally cross pollinated by the neighbors GM crop, they will sue you for growing GM crops without a license!

I keep waiting for someone to turn the tables by patenting their open pollinated seed, then sue Monsanto for encroaching on a patented product.

 

[TECH32]

Proprietary is over priced, under supported, overrated, and even though you may have that one throat to strangle with a big fat name on it, the problem is..........thanks to the license agreement, the only thing you can do is threaten to strangle it; you can't actually strangle it. The best you can do is buy a competing product when the next budget comes around.....if it comes around.

That's not quite true. When companies spend millions of dollars on a piece of software, there are always performance/response/support metrics attached to it. Failure to meet those metrics generally means big $$$ penalties to the companies who's software is being used.

 

[Sysman]

I look at software from the mainframe point of view. You can't buy IBM mainframe software, it's not for sale. But you can rent (lease) it for a period of time, usually year to year. This is true for everything, the basic Operating System like z/VSE, service programs like VSAM and POWER, "sub-systems" like the CICS on-line transaction server, and all the language compilers, like C, Cobol, Fortran and Assembly. Each is a separate product, and you pay IBM a fee to use each one every month.

The amount you pay is based on how much work gets done. In other words, how big the computer is. A "small" machine, like my older, 3-CPU z/8 at work, costs much, much less, for the exact same software, than a "super-computer", like a brand new maxed-out 64-CPU z/10..

In exchange for sending IBM money every month, you get several things in return...

1) Rock-solid, bullet-proof, well performing software. The mainframe provides one of the most reliable, and MOST SECURE environments on the planet, period.

2) Top-shelf technical support. If you find a bug in IBM software, they will fix it. Even if that means sending a team of experts to your site on their dime, they will find a solution.

3) Free access to new versions of the software. New features are always being added. Kinda like going from Vista to Win/7, but much more often, and way, way less painful...

It wasn't always like this. Back in 1964 when IBM announced System/360, software was literally free. Everything, the OS, services, compilers, you could get everything they had, and you got the SOURCE CODE with it. It was still quality software, with expert support, but it was considered "part of the machine". Oh, the machine was expensive, tens of thousands for the smallest systems, millions for a big system. But the software was "free" to anybody that wanted it. At least anybody that had access to an easy to get IBM customer number...

Then that whole anti-trust thing happened. As part of the settlement, IBM "unbundled" their software, making it a separate product(s). This is what gave birth to the "software industry". Soon other companies, like Computer Associates, and Syncsort, started selling, err, leasing IBM mainframe software. Usually cheaper than IBM, and often with more features and/or better performance than IBM software...

But back in "the old days", everything really was open source, managed by IBM. Many modern mainframe applications today were developed by IBM customers back then. CICS is a perfect example, it was originally developed by a utility company, looking for a better way to manage their hundreds of remote terminals. IBM liked it, and started to offer it to other customers. It took off like a freaking rocket! Today CICS runs on virtually every IBM mainframe ever built since the '70s. There is a version for every mainframe operating system, CICS/OS, CICS/VSE, CICS/VM, CICS/Linux. Today CICS is considered ~THE~ state-of-the-art IBM mainframe server application, and today CICS is a big line-item on virtually every monthly IBM mainframe software bill...

Today modern CICS may be the son of the son of the son, but the guts of CICS today are the same old guts as that open source program with roots in the late '60s, developed not by IBM, but by an IBM customer...

Some guy just like me, an Assembly Language freak...

 

[Moto]

Eventually very little software will be "for sale", as the sales model will be replaced by cloud based leasing and consumption models.

For example, right now you can buy Microsoft Office 2010. But in time, you will only be able to use MS Office software through a browser based interface (or similar), and you wil pay per month for the privilege. That way there will be nothing to pirate or resell, and all of these problems will go away.

It will also allow slower machines to run state of the art applications, and will eliminate the need for upgrading local software installs. For these reasons alone, business will flock to the new model. as time goes on.

It's inevitable.