I accept

[Rod Dixon, J.D., LL.M.]

This is not exactly correct. We have discussed this issue before on this
list so a search of the archives might prove helpful.  The argument
involving the UCC (Article 2) addresses a question concerning what source of
law should be applied to resolve disputes over  contract formation and or
the enforcement of additional terms in a software license.  If software is
sold, then applying the UCC makes sense (according to some) because the UCC
is intended to cover transactions involving the sale of goods. If however,
as some argue, software is licensed, not sold, then rather than resort to a
state's commercial code,the common law should be used to resolve contract
formation rules.  The upshot is that some software licenses may not be
formed validly or have additional terms that are not enforceable depending
upon whether you convince a court that the commercial code applies (e.g.,
UCC) or common law.

One additional issue that arises under this context is whether the end-user
is a lawful owner of the COPY of software he has acquired. Section 109 of
the Copyright Act contains the first sale doctrine, which, ostensibly,
allows owners of copies to dispose of the software even by selling it. At
least one court was convinced by Microsoft that if software is licensed, not
sold (and that this means the licensee does not own the copy ofsoftware he
has acquired), then the first sale doctrine never attaches!  See Microsoft
v. Harmony Computers.

-Rod

Rod Dixon
www.cyberspaces.org


----Original Message-----
   >From:     "Robert E. Jones, III" <rjones at robjob.com>
   >To:         license-discuss at opensource.org
   >Subject:     Re: "I accept" button
   >Date:    Saturday, April 27, 2002 10:24 AM
   >
   >At 07:04 PM 4/26/2002 -0700, David Johnson wrote:
   >>Since software is sold commercial, purchasable in retail outlets across
the
   >>nation, marketed as a product, etc., I can't understand why the UCC
wouldn't
   >>apply.
   >>
   >>Do you happen to know the rationale behind not including commercial sof
tware
   >>in the US Commercial Code? If all I get for $109.99 is the physical
media,
   >>then I want a damn huge discount when I buy it online for download...
   >
   >Well it comes down to what is being "purchased".  When you pay $109.99,
the
   >majority of what you are buying is the license itself.  The UCC only
   >applies to physical goods, such as cars, land, lumber, etc. not to
   >intangibles, like a license.   That is way it may apply to the  physical
   >media itself, but not to the software.  Again, however, there is a lot
of
   >debate over this issue, since many people feel that you buy the software
   >itself and not just a license.  However, I don't know of any court that
as
   >ruled that software is covered under the UCC.
   >
   >Rob Jones
   >
   >--
   >license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
   >
   >



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