[linux-elitists] Softman v. Adobe

hirsch@zapmedia.com hirsch@zapmedia.com
Mon Nov 5 06:15:37 PST 2001

Don Marti writes:
 > "The Court understands fully why licensing has many advantages for
 > software publishers.  However, this preference does not alter the
 > Court's analysis that the substance of the transaction at issue
 > here is a sale and not a license."
 > http://www.cacd.uscourts.gov/CACD/RecentPubOp.nsf/bb61c530eab0911c882567cf005ac6f9/574aa79ff518021188256aed006ea2dc/$FILE/CV00-04161DDP.pdf

This is a pretty awesome decision.  Do rulings on preliminary
injunction requests become case law?  Can this ruling be referenced in
other cases?  Pregerson seems to say very strongly that Software is
sold, not licensed.  He hints that shrinkwrap licenses are
unenfoceable, but refuses to rule.

I found it quite interesting that one reason he rules that software is
sold and not licensed is that there is only one fee.  The new MS
licensing scheme will address this "inadequacy" of the current
system.  Once you sign up for repeated payments it looks like the
software publishers case for licensing gets quite a bit stronger.


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