"98 Guy" <98@Guy.com> wrote in message news:468E635F.E905B427@Guy.com...
| MEB wrote:
|
| > Your questions delve into full legal qualifications, hence would
| > be more appropriate to a legal forum.
| > Try misc.legal.moderated
|
| One reason why I think the law does not address the issues I raised is
| because (1) there would have to be a law written specifically for
| Microsoft in such a way as to enshrine their EULA's as "law", and (2)
| license agreements (such as MS's EULA's) are contracts, and would
| theoretically be covered under contract law.
|
| I am not raising any issues pertaining to trademark or copyright law
| in my example, so we need not delve down those avenues.
Here your wrong, in fact, your comments reflect that you have essentially
ZERO understanding of the applicable issues, legal ramifications, and what
comes necessarily into consideration. Nothing needs created for Microsoft.
Microsoft enjoys the protection of ALL applicable Laws, including the
Patriot Act and the UCC. Best read those before you make further comments.
This is typical of parties with no knowledge of Law or refuse to understand
its depth. You're attempt to separate issues and deal with them in a form
which is conducive to your point of view, while ignoring key controlling
elements. Moreover, when directed to the applicable issues, you counter in
the same form of ignorance, apparently thinking the attempt to proceed in
this fashion would be acceptable with the courts, or otherwise qualify your
activities.
No, it will not, your issues will be tossed with the garbage should you
find yourself in a court.
You were directed to proper forums so you could at least discuss these
issues with licensed attorneys, and others versed in Law. You instead
proceed here with the same lack of understanding and misconceptions,
attempting to push issues upon individuals who could, at best, only give you
their impressions of Law. I would imagine I may be the only one here with
any sort of legal background. If any others monitor here, they would likely
not waste their time with this. Your argument hold no sway and is pure waste
of time..
You have a set mind frame, based upon nothing but apparent ignorance. You
present the same issues that can be found in every alt.binaries, torrent,
discussions related to pirated software, and the like; which discuss or
participate in unlawful activities. When advised of such and provided with
the Law, the same ridiculous arguments are rolled out that were used in the
BBS and FIDO days [early electronic public forums].
|
| Basically, as you install most any MS product, a EULA screen will be
| presented to you, in which you must clisk "I agree" before the product
| will install itself. MS relies on that to effectively bind you to an
| agreement with them. It is that agreement that presumably would have
| to specify or make reference to (or define) what constitutes "license
| ownership". So again I ask if MS even mentions the concepts of
| license abandonment or that a "chain of ownership" must exist for a
| license.
Read the EULA for once.
|
| > A short answer is thus:
| >
| > You claim is *abandoned, discovered, etc.* keys/license, and
| > your ability to use such. Microsoft need make no statement
| > in the EULA concerning Law unless special aspects are
| > applied. You are to know the Law.
|
| I believe there is legal precedent that discarded property can be
| freely obtained and "owned" by others without the express permission
| (or even knowledge) of the previous owner. A license is a form of
| property.
Partially Wrong. discarded property remains with the party whom discarded
such until such time as control is lost/relinquished. Court cases discussing
your issues [large tangible items] and such things as identity theft from
waste have already dealt with these issues. When the property is transfer to
the garbage, the transfer is to the waste company [via the container or
bag]. If stored temporarily upon the property of the original owner, joint
ownership [primary to you the owner] and trespass/property issues are also
in play. When placed upon the curb in public access areas, the property
control remains with the waste company and with the original owner as
secondary, and the municipality/city/village/whatever as third party. You as
*dumpster diver* or *trash hog* are not in the picture save in the most
tenuous postition. There are cases presently in the courts dealing with
these very issues.
Mind you, [one of] the parties MUST take issue with an encroachment [you
taking the waste], which allows such things as those unlimited pick-up days
when couches and the like find their way to the street or public access and
may potentially be taken.
If interested [which I see your not] review the rulings related to
paparazzi and other theft/id/other, pertaining to trash/garbage/waste.
|
| I make the analogy with a music CD, a movie DVD, or a book. For those
| items, you are never buying the rights of ownership to the music, the
| movie, or the book. You are buying the rights to view/enjoy/use the
| content in a limited, personal manner. If you throw the CD, the DVD,
| or the book away in a dumpster at the curbside, I can come along and
| retrieve them and the license to view/use them passes to me. If you
| did not intend for the license to pass to anyone else, then you could
| / should destroy the CD/DVD/book.
Wrong argument. Those items fall in another category. Computers, but in
particular software, are held differently.
|
| > Use of a key WITHOUT a lawful license is illegal.
|
| I contend that just as in the case with a CD/DVD/book, the license for
| software is intangible. The product-key is tangible, and essentially
| represents, enumerates, or identifies the license. Within the
| constraints of a retail or system-builder product, any single given
| product-key represents a single, unique license.
As such, the keys were issued under contractual agreement with the party to
whom they were given and to NO-ONE ELSE. Contain within that agreement is
the manner in which they will be used. Other use constitutes breach of
contract and potential fraud.
|
| Until the product-key is used, the license is not excercised. If the
| product-key is used to perform an installation of the product on ONE
| computer, then the license becomes utilized. If the computer is
| dammaged, dissassembled, or otherwise becomes defunct, then the
| license becomes separable from the hardware and can be used on another
| system. The only caveat is that the product-key not be used to
| install the product on more than one functioning system
| simultaneously, because that would require more than one license.
It matters not, that the keys may not have been used by the authorized
agent. What matters is the form under and in which the contract was drawn
and issued.
For example let's say this occurs:
Microsoft enters into a contractual agreement with a fictitious Xwidgets
Inc. to issue seven hundred keys and licenses for VISTA at a reduced price
for use within the corporation. Xwidgets was previously under a similar
agreement for XP.
Xwidgets uses only six hundred and seventy eight of those VISTA licenses
and keys, deciding to keep the other machines using XP for whatever reason.
May Xwidgets sell or distribute those extra licenses and keys, NO. Xwidgets
was not authorized within the contract to sell any of those, or distribute
outside itself, UNLESS such was specifically allowed within the contract.
May Xwidgets transfer ownership of those reduced purchase rate VISTA
versions or keys and licenses to other parties? NO, the agreement is between
Microsoft and Xwidgets. Xwidgets MIGHT be able to do so if allowed within
its contract with Microsoft OR within its corporate charter/bylaws.
Microsoft's attorneys [or now its sales agents since it has been doing this
for years] would likely have already covered such within the contract [e.g.
X years of use beyond contract or otherwise claused].
Who owns the software? Microsoft.
Who has a license to use the software? Xwidgets, the corporation.
Do you, as an employee of Xwidgets have any control over either Microsoft,
Xwidgets, or the software? NO, you are not a party to the contract.
Let's say your position with Xwidgets is in maintenance or the roll-out
department, or otherwise the parties who would take the old XP machines to
the dumpster or remove old software. Do you or are you authorized to
transfer ownership of those XP machines and/or software or Keys?
Not unless you were given such by the corporation, in conjunction with its
agreement/contract with Microsoft [the terms/clauses of the contract].
The agreement is between Xwidgets and Microsoft, not you or any other
party.
May you, a third party, then pick up those XP machines or software from the
dump or trash and lay claim to the machine or software? The machine
potentially, the software NO. The license and keys authority remains with
Xwidgets, the software still OWNED by Microsoft. Read any EULA created by
Microsoft, those terms are spelled out specifically.
Can a recycler pull the software off one of those Xwidget machines or a
hard drive with the OS on it, and which has the sticker for the key on the
system case, then SELL those OSs or hard drives with the OSs with the Key?
NO, Microsoft OWNS the software and has not authorized the recycler to do
so. The original Xwidget/Microsoft contract still controls, UNLESS transfer
of license ownership was effected from Xwidgets to the recycler.
However, Xwidgets is still bound by its original contract with Microsoft
and must be allowed within the contract, to transfer ownership.
May a recycler, Xwidgets, or other parties who have Product Key numbers;
sell, post, or otherwise distribute those Keys?
A private individual CAN by lawfully transferring the original CD or its
copy [the original destroyed], OR a hard drive or machine with OS and KEY so
long as there are NO other copies [including copies of the Key] ANYWHERE. A
corporation, business, or other, MAY not be able to do the same unless
somehow authorized.
[deleted irrelevant response]
|
| > If it was once held under Copyright or Patent then considerable
| > years must elapse before it becomes public domain, should the
| > owner object.
|
| We are not talking about copyrights or patent ownership issues of the
| product in the current discussion.
Yes we are, because they ARE a controlling issue. It matters not you choose
to ignore them and the full ramifications of ALL applicable Law which
applies. MICROSOFT OWNS THE SOFTWARE, the Patents, the Trademarks, the
Copyrights; and every applicable Law applies. Standing in the background of
every argument or discussion is the full weight of Law.
|
| > Just one more thing: should you have actually purchased a lawful
| > license [CDROM or otherwise], but lost your key, you likely
| > could use another key for an UNSUPPORTED operating system
| > [Microsoft has suggested along those lines].
|
| In the absense of a product-key, what would be in your possession that
| would constitute proof that you had actually purchased a license -
| beyond your own good will?
You as defendant would have the right to produce such at trial, the
prosecution need merely show that you MAY have pirated and/or stolen and/or
otherwise conspired with others to commit fraud or other violations of Law.
Possession of the questionable software would be prima fascia evidence that
you have the software at issue, the burden would be upon your shoulders to
proof your licensing/authorization.
The original CD case {with attached Key] might be compelling relevant
proof. OR the nifty little paper/cardboard with the "Don't Lose This Number!
You must use it every time you install this software." with its scannable
product key/strip. OR perhaps the sticker on the machine, however, if it was
registered to someone else, you then would have to proof train of ownership
and/or lawful transfer. Microsoft DOES keep data bases of
registered/licensed users and related information. So do other businesses.
|
| > However, knowing a key does NOT grant license or any legal right
| > to the software.
|
| Knowing a key *AND* not violating the EULA *does* allow you to use the
| software.
|
| If that statement is not true in all situations, then please give one
| counter-example.
Read this post, though I expect, as usual, that you won't be able to grasp
what this post encompasses.
|
| > Unless it is a lawful sale [complete lawful transfer of ownership,
|
| Where in MS's EULA does it stipulate that a "lawful transfer of
| ownership" must occurr?
Read it for once. Then apply the Law.
|
| Does Microsoft even provide any boiler-plate forms or documents to aid
| in this hypothetical "transfer of ownership" process?
Boiler plate... haha, so you think boiler plate wording and contract has to
be provided? Get real. NO ONE has EVER created completely "boiler plate"
legal documents.
The single best *boiler plate*, the United States Constitution, has been
repeatedly and deliberately busted. That's the contract which RULES all
other contracts and Law in this nation.
Boiler Plate is such only until it is circumvented.
|
| Do the product booklets have inside them a formatted place to inscribe
| the name of the purchaser/owner of the license, as well as a
| transfer-of-ownership form?
Don't need them, implied consent by use. Since Win95, the OS license is
registered to the original purchaser/licensee. I remind you that even Win95
had a web-updates site at one time.
|
| Does the EULA stipulate that installer must document his/her ownership
| of the license by filling out the appropriate forms inside the booklet
| that accompanies the license and media CD?
Doesn't need to. Implied consent, use, clicking the proceed/Accept,
installing {intent}; all BIND the party under Law.
|
| Don't you think that MS could ask for something that simple if it was
| their intention to include license ownership as an aspect of the EULA?
Sure, but that's in a world that doesn't presently exist. You are to know
the Law, and are bound to and under it.
Stupid questions, so here's some more....
Does the federal government ask you to fill out forms [except for the IRS
forms] so the Law will apply to you?
Do the State governments ask you to fill out forms accepting the Law as
applied to you?
Do the municipal governments have you fill out forms so the local Law
applies to you?
Does your failure to fill out forms or their failure to supply forms
relieve you from the weight of Law?
The answers are plain, so take your supposed arguments to a proper legal
forum for discussion should you wish to continue. I am done here.
I will leave you with this, I suggest you read it carefully and understand
what it means:
Title 18 Sec. 3551
(a) In General - Except as otherwise specifically provided, a defendant who
has been found guilty of an offence described in any Federal statute,
including section 13 and 1153 of this title, other than an Act of Congress
applicable exclusively in the District of Columbia or the Code of Military
Justice, shall be sentenced in accordance with the provisions of this
chapter so as to achieve the purposes set forth in subparagraphs (A) through
(D) of 3553(a)(2) to the extent that they are applicable in light of all the
circumstances of the case.
TAKE DUE NOTICE: *offence described in any Federal statute* and *in light
of all the circumstances of the case*. Read through those thousands of
federal statutes, Acts of Congress, and Public Law which I directed you to.
--
MEB
http://peoplescounsel.orgfree.com
http://peoplescounsel.orgfree.com/people_v_bonini/expose/Expose_crimes_V1.html
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