Re: ok, let's clear this up MS - is Product Activation really restricted?
- From: "kurttrail" <dontemailme@xxxxxxxxxxxxxxxxxxxxxxxxxxxxx>
- Date: Mon, 30 May 2005 18:31:13 -0400
Bruce Chambers wrote:
> kurttrail wrote:
>
>>>
>>> Your "integrity" tells you that it's fine to renege upon an
>>> agreement into which you've freely and voluntarily entered?
>>
>>
>> No, contract law. There are perfectly valid and legal reasons to
>> breech a contract or certain term of a contract.
>>
>
>
> Granted, but name a single court decision that has found found any
> "valid and legal" reasons to void Microsoft's EULA. You can't.
When MS exercises its due diligence in protecting its EULA terms in a
court of law, then I will. It is not up to me, under contract law to
sue MS to invalidate its terms. The onus is on MS to sue to protect its
terms, and get a court to enforce them.
Just because MS doesn't have the balls to take me, or any other private
non-commercial user to court to enforce its rules, in no way means that
there terms are legally enforceable.
>
>
>> But you don't understand that, as your "corporate rights uber alles"
>> mentality sees a contract as a law unto itself, inviolable, whereas,
>> in reality, it is just contractual claims, and when disputed by the
>> second party, me, it is up to the first party, MS, to sue me and
>> prove by the preponderance of the evidence that my breech is
>> damaging them in some way.
>>
>> In the over 13 years of knowing that individuals have disputed their
>> One Computer term, MS, nor any other colluding member of the BSA for
>> that FACT, has yet to sue, let alone convince a court to enforce the
>> One Computer term on one private non-commercial individual.
>>
>
>
> Which is simply because doing so would be a PR nightmare for the
> companies in question, and produce little or nothing of profit for
> them.
Boo Hoo! Don't cry for me Redmontina!
Doesn't seem to be bothering the Music Industry all that much, suing
individuals over file-sharing.
> Remember, these are businesses; they're not particularly
> concerns with the "principle of the matter," as you claim to be.
> Their concern is
> their bottom line. If and when it becomes in their best interest to
> prosecute individuals, they'll no doubt do so. Don't make the false
> conclusion that just because they haven't done something yet, it means
> that they can't or won't do so, at sometime in the future. That's
> very poor logic, indeed.
A court would not accept that as a valid excuse for MS not exercising
its legal responsibility to exercise due diligence in enforcing its EULA
terms in a court of law.
And I suspect if they tried that tact a court would definitely rule in
favor of a motion of summary judgment to dismiss MS case against an
individual. That is, if MS ever grows the balls to live up to its due
diligence responsibilities under the law!
>> And as the Supreme Court said in the Betamax case, "Any individual
>> may reproduce a copyrighted work for a "fair use"; the copyright
>> owner does not possess the exclusive right to such a use."
>>
>
> This case is no more relevant to software today, then it was the first
> time you brought it up.
It is relevant to all Copyrighted works! They could have narrowly said
that any individual can time-shift video content for a "fair use, that
no video content copyright owner possesses the exclusive right to such a
use. BUT THEY DIDN'T!
They said it that broadly because it was one of the main rationales for
why the VCR was an infringement.
Read it again! See how broadly the Supreme Court stated it!
"Any individual may reproduce a copyrighted work for a "fair use"; the
copyright owner does not possess the exclusive right to such a use."
They could hardly have written that statement more broadly, more
all-encompassing!
>> They didn't limit it to the narrow view of timeshifting in this
>> statement of FACT! The copyright owner {MS} doesn have the right to
>> limit my "fair use." And until there is some SUPREME COURT precedent
>> that says that a copyright owner can shrinkwrap license away my
>> right to "fair use, it is a matter of integrity for me to protect MY
>> right to MY copy of software in MY home!
>>
>>
>
> And the EULA doesn't interfere with "fair use." Remember, *you*
> voluntarily agreed to abide by the terms of the EULA when you
> installed the software. If you don't like the terms, use something
> else.
No after I took the product home, long after the sale was done, I was
confronted with commercial use terms. Since I didn't purchase the
software for a commercial use, I feel no more bound by them than the Ten
Commandments prohibition on coveting.
>>> Does your mortgage company know
>>> that you feel this way about contracts?
>>
>>
>> If any term is unreasonable or unconscionable, I have every legal
>> right to breech it, under the law!
>>
>
> If you can prove in court that the terms are "unconscionable" or in
> violation of other law, yes. "Unreasonable" doesn't really apply, I
> don't think. Why would you sign a contract that you felt was
> unreasonable? Or does it somehow magically turn unreasonable when you
> no longer like the terms? You can't breech a contract just because
> you've changed your mind; not without expecting consequences.
The thing is, under contract law I don't have to prove ANYTHING unless
I'm sued by the contractor. All I need to do is breech the terms! Then
it is up to the contactor to sue me, and prove by the preponderance of
the evidence that I breech the terms, that they have lost something of
material value resulting from my breech. And then I can counter that,
by proving the unconscionability of the term or terms in my defense! If
I'm never sued, I just go on my merry way!
>
>
>> That is not my "feeling," it is the way contract law works in the US.
>>
>>
>>> And don't try throw "fair
>>> use" into the discussion; it's not even relevant.
>>
>>
>> LOL! If YOU say so! But that is all you do is say so, yet you do
>> not even try to demonstrate it.
>>
>
> There's nothing to "demonstrate." I've repeatedly pointed out the
> definition of fair use, as defined by copyright law. But for those
> who haven't seen the facts pointed out to you before:
>
> TITLE 17 > CHAPTER 1 > § 107
>
> § 107. Limitations on exclusive rights: Fair use
>
> Release date: 2004-04-30
>
> Notwithstanding the provisions of sections 106 and 106A, the fair use
> of a copyrighted work, including such use by reproduction in copies or
> phonorecords or by any other means specified by that section, for
> purposes such as criticism, comment, news reporting, teaching
> (including multiple copies for classroom use), scholarship, or
> research, is not an infringement of copyright. In determining whether
> the use made of a work in any particular case is a fair use the
> factors to be considered shall include?
> (1) the purpose and character of the use, including whether such use
> is of a commercial nature or is for nonprofit educational purposes;
> (2) the nature of the copyrighted work;
> (3) the amount and substantiality of the portion used in relation to
> the copyrighted work as a whole; and
> (4) the effect of the use upon the potential market for or value of
> the copyrighted work.
> The fact that a work is unpublished shall not itself bar a finding of
> fair use if such finding is made upon consideration of all the above
> factors.
>
> Just exactly where, in the above text, does it state that installing
> multiple copies of a software product on multiple computers in one's
> home is not an infringement of the copyright? In fact, an
> unauthorized second installation would clearly fail the both the (1)
> and (3) test.
I already explained it to you at the bottom of my previous post. Unlike
you, I really don't like to repeat myself unnecessarily!
> More reading:
>
> Copyright & Fair Use Overview
> http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/index.html
"Unfortunately, if the copyright owner disagrees with your fair use
interpretation, the dispute will have to be resolved by courts or
arbitration." -
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.html
>
>
>>>
>>>
>>> I've never claimed that "corporate rights outweigh an individual's
>>> rights."
>>
>>
>> It is implicit in all of your arguments about MS and their EULA over
>> that of an individual's rights in their home with their copy of
>> copyrighted material!
>>
>>
>
> Not at all.
LOL! If you say so! But I doubt any rational human being that isn't a
corporate suck up is believing you denial.
> Your inept and inaccurate inference notwithstanding, my
> primary concern has always been about someone's voluntarily entering
> into a contract and then reneging on it for no better reason than it's
> convenient to do so. While I have no doubt that the current laws
> support my position, I'm much more worried about a contract-breaker's
> lack of integrity and trustworthiness. That fact that you find
> personal integrity of so little value is just further evidence of the
> decline of our culture.
Blah! Blah! Blah!
What you can't comprehend is that there are perfectly valid reasons
under the law to breech the terms of a contract. That is why there is
NO LAW that makes breeching a contract illegal in and of itself!
>> LOL! Look at you arguing earlier about the inviolability of the
>> EULA. It is not a law unto itself!
>
>
> Not so. You really should try arguing with what I've actually said,
> rather than deliberately misinterpreting and then arguing with what
> you imagine to be my position. I've never claimed that the EULA is a
> law.
If you agree that it isn't then acceptance alone is not a valid reason
to say it lacks integrity to breech a term you disagree with. To me it
would be a matter of a lack of integrity to follow terms one believes
are unconscionable, just because you once agreed to it!
> I have pointed out that, until proven otherwise, it is a legally
> enforceable contract. There's a vast difference.
LOL! Only a court can determine to enforce a contract! That's why we
have courts to decide contract disputes! If MS decides not sue me when
they know I have breeched a EULA of theirs, then their contract is not
legally enforceable on me.
But there you go again, implying the inviolability of the EULA again! I
love it when you contradict yourself!
>
>
>> One doesn't have to lack integrity to
>> breech terms one feels are unconscionable or violates the law!
>>
>> In the case of ProCD v. Zeidenberg, a case where a database
>> shrinkwrap license was breeched for a COMMERIAL USE, the judge even
>> acknowledged the FACT that contracts can be legally breeched!
>>
>> "Shrinkwrap licenses are enforceable unless their terms are
>> objectionable on grounds applicable to contracts in general (for
>> example, if they violate a rule of positive law, or if they are
>> unconscionable)." -
>> http://www.law.emory.edu/7circuit/june96/96-1139.html
>>
>
> Once again, as you've done this before, thanks for supporting my
> position by pointing out this decision.
I didn't. I claim that MS's EULA is unconscionable. It is now up to MS
to sue me or shut up!
Don't you love the over 13 years of silence on MS's part?! Their
silence speaks volumes!
>> "Whether there are legal differences between "contracts" and
>> "licenses" (which may matter under the copyright doctrine of first
>> sale) is a subject for another day."
>>
>
> And that day has yet to come.
Because MS and the rest of the colluding members of the BSA Trust are
too chickensh*t to put the EULA's where their mouths are!
> Until then, normal legal practice holds
> that the contract is valid until proven otherwise.
The Zeidenberg decision doesn't say that. Only a court can decide if a
specific contract is enforceable.
> Had you the
> "courage of your convictions," you'd challenge the EULA in court,
> just as a matter of principle.
LOL! Then the burden of proof would be on me. And under the law, I
don't have to prove that my breech is legal, unless sued by the
contractor, and then they [MS] would bear most of the burden of proof.
> Instead, you hide behind the "Microsoft has
> never sued me, so I must be right" fallacy. You make a lot of
> defiant noise, but only because you know your safe form the big, bad
> corporation that doesn't take you seriously enough to bother with.
13 years and silence! All MS would have to do is sue one private
non-commercial individual over breech of the One Computer term, and
convince a court.
>
>
>> So the same judge also admits that contracts and licenses may be
>> different when it comes to copyright law. Which brings us to "fair
>> use!"
>>
>>
>>> Again, "fair use" doesn't come into play.
>>
>>
>> LOL! Again, if YOU say so! But you can not even explain why!
>> Repeating something over and over again as a means to convince
>> others of what you cannot honestly & logically convince them of is
>> the Goebels method of propaganda!
>>
>
> Actually, I've pointed it out repeatedly, but why disillusion you.
LOL! Please! I love it when you try to disillusion me with distorted
realities!
>
>>
>> It is you passion for repetition that earned you the title of
>> MicroNazi in my MVP Hall of Shame!
>>
>> http://www.microscum.com/bruce/
>>
>>
>
>
> Ah, yes. Your ultimate and invariable fall-back position. Whenever
> you're proven wrong, the name-calling and personal attacks come out.
> Once again, thanks for admitting defeat.
LOL! Just showing why you earned your dishonor. Repetition is your
best friend.
>
>
>> And yes "fair use" does come into play, since the EULA's One Computer
>> rules is in effect a means to rewrite copyright law and Supreme Court
>> legal precedent!
>>
>
>
> No, it isn't. Reread Title 17:
>
> TITLE 17 > CHAPTER 1 > § 106
>
> § 106. Exclusive rights in copyrighted works
>
> Release date: 2004-04-30
>
> Subject to sections 107 through 122, the owner of copyright under this
> title has the exclusive rights to do and to authorize any of the
> following: (1) to reproduce the copyrighted work in copies.....
Sections 107 throught 122 would be all the LIMITATIONS that copyright
law places on the exclusive right of COPYRIGHT OWNERS, like MS!
Boy, are you dense or what?!
>
> TITLE 17 > CHAPTER 1 > § 117
>
> § 117. Limitations on exclusive rights: Computer programs
>
> Release date: 2004-04-30
>
> (a) Making of Additional Copy or Adaptation by Owner of Copy.?
> Notwithstanding the provisions of section 106, it is not an
> infringement for the owner of a copy of a computer program to make or
> authorize the making of another copy or adaptation of that computer
> program provided: (1) that such a new copy or adaptation is created
> as an essential step in the utilization of the computer program in
> conjunction with a
> machine and that it is used in no other manner, or
> (2) that such new copy or adaptation is for archival purposes only and
> that all archival copies are destroyed in the event that continued
> possession of the computer program should cease to be rightful.
>
> The EULA is, in fact, perfectly in compliance with the law, as
> written.
LOL! No, its not!
117 is saying it is not infringement install an ADDITIONAL copy of
softare on A machine. "A" meaning one thing not previously know.
That is say Additional adaptations presumes at least on previous
adaptation or in layman's term at least one previous adaption installed
on a computer that would already be a know machine!
But again, Section 117 is a LIMITATION on the COPYRIGHT OWNER, not the
owner of a copy of software.
But you have to confuse that fact totally!
http://tinyurl.com/hhjj - 314 times
http://snipurl.com/4x5d - 87 times
http://snipurl.com/d81h - 137 times
These are the number of times of you repeating total bullsh*t!
You have yet to show where it is a violation of Copyright Law to install
software on more than one computer. All you have is shown repeatedly
your purposeful misreading of the law.
>
>
>> The copyright owner is trying to limit my right to "fair use" after
>> the FACT of the sale!
>>
>
> Not at all. First of all, there's no "fair use" limitation, as proven
> above,
Repeated but not demonstrated.
> and secondly, this doesn't happen "after the sale,",
Sure does! EULA acceptance happens doing the install process, LONG
after the sale! Another example of you having to distort reality!
> and
> thirdly, even if it were "after the sale," it wouldn't matter. Reread
> *all* of ProCD v. Zeidenberg.
I did. It is about commercial use terms of a commercial database, not
about the private non-commercial use of copyrighted software! But had
Zeidneburg just made copies for his own use, instead of selling the
copies as his own product, I doubt the would have ever been a ProCD
case!
>
>>
>>> The
>>> EULA in no way interferes with "fair use," as it is defined by law.
>>
>>
>> "Sec. 107. - Limitations on exclusive rights: Fair use"
>>
>> "Notwithstanding the provisions of sections 106 and 106A, the fair
>> use of a copyrighted work, including such use by reproduction in
>> copies or phonorecords or by any other means specified by that
>> section, for purposes such as criticism, comment, news reporting,
>> teaching (including multiple copies for classroom use), scholarship,
>> or research, is not an infringement of copyright. In determining
>> whether the use made of a work in any particular case is a fair use
>> the factors to be considered shall include -"
>>
>> "(1) the purpose and character of the use, including whether such
>> use is of a commercial nature or is for nonprofit educational
>> purposes;" Private non-commercial individual use.
>>
>
> Non-commercial, but not non-profit. By installing the same license on
> multiple computers, the computer user is "making a profit" in the
> sense that he's not expending funds to buy additional licenses.
> Remember, "A penny saved is a penny earned."
One making a profit, by buying buying software at the price of hundreds
of dollars! Twist reality! Where does Section 107 promise the
copyright owner to sell a copy of the copyrighted material for every
device it is used on?
>
>>
>> "(2) the nature of the copyrighted work;"
>>
>> "In addition, you will have a stronger case of fair use if the
>> material copied is from a published work than an unpublished work." -
>> http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html
>>
>> Not only published, but sold in retail stores as a commercial
>> product.
>
> Relevance?
That I "have a stronger case of fair use if the material copied is from
a published work than an unpublished work."
>
>
>> "(3) the amount and substantiality of the portion used in relation to
>> the copyrighted work as a whole; and"
>>
>> Entire. The Supreme Court in 1984, when considering the taping of
>> entire movies on a VCR already concluded that individuals can copy an
>> entire
>> copyrighted work as a "fair use." -
>> http://laws.findlaw.com/us/464/417.html
>
>
> Nonsense. You've continually failed to demonstrate how that old
> Betamax case could possibly apply to computer software. An complete
> copy of a copyrighted works for no other reason than financial gain is
> clearly a not intended as allowable use.
Here I will repeat myself!
"Any individual may reproduce a copyrighted work for a "fair use"; the
copyright owner does not possess the exclusive right to such a use."
In this statement of FACT, the Supreme Court stated it as broadly as
possible. Why was that Bruce? Because they saw the FACT as the main
foundation as to why a VCR was a legal device since its main purpose was
to allow people to copy TV programs.
By saying "COPYRIGHTED WORK" they weren't just limiting this fact to a
specific kind of copyrighted work.
?They could hardly have written that statement more broadly, more
all-encompassing!?
>
>>
>> "(4) the effect of the use upon the potential market for or value of
>> the copyrighted work."
>>
>> Non-existent since copyright owner was paid for the original copy by
>> the indivdiual, thereby the copyright owner has already gotten a
>> "fair return" for the creative labor of the author(s).
>>
>
> "Fair return" by whose definition? Which court has decided that a
> software manufacturer need only be paid once, for a single copy?
"Fair return" as in it would be easy to prove, by normal business
standards, that MS has gotten way more than a "fair return" on its
Windows monopoly!
>
>
>> "The limited scope of the copyright holder's statutory monopoly, like
>> the limited copyright duration required by the Constitution,
>> reflects a balance
>> of competing claims upon the public interest: Creative work is to be
>> encouraged and rewarded, but private motivation must ultimately serve
>> the cause of promoting broad public availability of literature,
>> music, and the other arts. The immediate effect of our copyright
>> law is to secure a
>> fair return for an 'author's' creative labor. But the ultimate aim
>> is, by this incentive, to stimulate artistic creativity for the
>> general public good. 'The sole interest of the United States and the
>> primary object in conferring the monopoly,' this Court has said,
>> 'lie in the general benefits derived by the public from the labors
>> of authors' . . . . When technological change has rendered its
>> literal terms ambiguous, the Copyright Act must be construed in
>> light of this basic purpose." -
>> http://laws.findlaw.com/us/422/151.html
>
> Be that as it may, you've failed to how it supports your position. I'd
> say it does doesn't even come close.
Luckily you aren't a judge.
> Hoping to distract people
> by throw in tons of irrelevant material? Disagreements are decided
> upon the merits, relevance, and quality of the arguments made, not on
> the sheer bulk of irrelevant material added to pad the argument.
> Trying to wear me down?
Just because you don't understand its relevance only shows that you and
too dense to see reality.
>
>
>> "Unfortunately, if the copyright owner disagrees with your fair use
>> interpretation, the dispute will have to be resolved by courts or
>> arbitration." -
>> http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.html
>>
>
>
> All of which proves my point. Again. Thank you.
LOL! I'm still waiting for the copyright owner to disagree with me by
suing me!
>
>
>> I have a right to my interpretation unless the copyright owner
>> disagrees, sues me, and wins, so the EULA is interfere with my
>> perfectly valid interpretation of "fair use," ESPECIALLY since MS
>> introduced PA, as a from of EULA control.
>>
>>
>
> You have a right to your own opinion, certainly. And as much as I
> dislike it, you also have a right to express that opinion, and to work
> to over-turn a law you find unjust. That's not what you're doing,
> however. You're misrepresenting the facts and laws of the matter, and
> advising people to do as they please, without regard to the
> consequences. I do and will continue to argue that you're not
> justified in trying to get others to violate the law, just because
> you think it's safe to do do. If you are going to advocate such
> actions, you should at least tell people the complete truth, that
> they will be acting contrary to current law, and that what you're
> advising them to do could,
> someday, as unlikely as it is, put them at risk. I especially take
> umbrage at your encouragement of the violating of agreements/contracts
> when
> you've no better excuse than that the terms of the agreement are no
> longer
> convenient.
BLAH! BLAH ! BLAH!
You accuse me of doing what I have clearly demonstrated that you have!
You twist reality by calling limitations on the copyright owner actual
limitations on the owner of a copy!
You twist reality by assuming that under "fair use" MS is guaranteed to
sell a copy of software for every device it is used on!
You twist reality by trying to shift the legal burden of proof onto me,
when under the law it is up to the contractor and/or the copyright
owner!
You twist reality when you say you imply that the Supreme Court means a
specific type of copyrighted material when it says so unspecifically a
?COPYRIGHTED WORK!?
You twist reality when you say that MS?s EULA terms are not post sale
terms!
You distort reality when you say that a specific EULA term is
enforceable, when it was meant that generally a contract is enforceable,
and then gives exceptions to that general rule. It is in the exceptions
where a court is needed to decided every specific contract dispute!
You distort so much, that I can?t keep up with it all!
But I?ll leave you on this note.
SCO CLAIMS IBM has breeched its UNIX license. Is it enforceable just
because SCO CLAIMS IBM breeched the UNIX license, or is it up to SCO to
prove the breech by the preponderance of the evidence in a court of law?
Unless you can say that it is enforceable based on SCO?s claims only,
then like IBM, I wait for my opportunity to defend myself against the
Licensors claims in a REAL COURT OF LAW!
And IF MS had on ounce of integrity, then they would exercise their
responsibility under due diligence try to enforce their ONE COMPUTER
EULA CLAIM in a REAL court of law.
But we all know MS?s integrity record! Proven Predatory Monopoly!
Proven Patent Infringer! Proven Copyright Infringer!
--
Peace!
Kurt
Self-anointed Moderator
microscum.pubic.windowsexp.gonorrhea
http://microscum.com/mscommunity
"Trustworthy Computing" is only another example of an Oxymoron!
"Produkt-Aktivierung macht frei"
.
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