You own the software that you purchase, and any claims otherwise are urban myth or corporate propaganda

[Delicieuxz]

Updated August 2020

 

 

Some of the bottom part of this post is a paste of a message I sent to Steam support following the seemingly-bullying actions of a Steam forum moderator who has been falsely telling people that Steam rents / leases games through their service and doesn't sell them, and who was intolerant of anybody telling them they're wrong. That moderator liked to do things like delete posts and lock any threads where people demonstrated otherwise.

 

To be clear, that Steam Discussions moderator's assertion is wrong, and top courts covering a sizeable amount of the world's population have ruled that they're wrong, and Valve themselves have also explicitly stated that they sell, not rent or lease, games to those people who purchase them through their Steam service (I've included that information in the second-half of this post). So, here is...

 

 

Software licenses and purchasing and owning software 101:

 

• A license is a right to use a property or intellectual property that belongs to somebody else. When you read "this software is licensed, not sold" in a software EULA, whether it's for an OS like Windows 10, a game, or an application, "this software" refers to the software Intellectual Property and not the copy of that intellectual property that you've purchased via a software license. Software licenses and the instances of a software's intellectual property that they represent are indeed and obviously sold. Both of the following phrases are simultaneously true: This software (IP) is licensed, not sold; This software (instance / license) is sold, not licensed or leased.

 

• All the mass-produced items you've bought, including your clothing, your vehicles, your TV, your computer hardware, are licensed instances of the intellectual property (IP) for those things. When you purchase any of those things, you aren't purchasing the intellectual property (IP) and so you don't become entitled to mass-produce, to control marketing, to receive profits from exploiting the brands of any of those things, and you don't gain any ownership of the patents for the patented technology in those things. But you are purchasing a one-off copy of the IP of those things, and upon the point of sale of the instances of those IPs there is a transfer of ownership over those instances and you become the sole owner of that instance of that IP. This is exactly the same with software as it is with physical goods - you own your non-reproduceable instance and have full property rights over it.

 

• In law, there are Goods and there are Services, and every thing you pay for is classified into one of these two categories. A service is a temporal and transient action (like a car wash, meal delivery, movie streaming) that may or may not deliver a good. A good, by definition, is an item and piece of property that undergoes a transfer of ownership upon its point of sale, from the seller to the buyer, granting the buyer full property rights over that purchased item, and removing all rights from the seller over the item which they sold. As of February 2020, there are 88 countries signatory to the Nice Agreement treaty. The Nice Agreement (called such because it was signed in Nice, France, in 1957), is a multinational treaty that contains the International Classification of Goods and Services (also known as the Nice Classification), and that treaty assigns the classification of goods and services for its signatory countries under the jurisdiction and authority of the World Intellectual Property Organization (WIPO). The World Intellectual Property Organization classifies all software as Class 9 goods. An elaborate look at what goods are under law is in this post.

 

• There are perpetual software licenses and there are subscription software licenses. A perpetual license is non-exhaustive, meaning that the right it grants is eternal, forever-lasting, and never expires. A subscription license is a duration-limited right to access a software or service. All the most common software including games, OSes, and programs are perpetual licenses. Some games that are sold via perpetual licenses, like MMOs, require an additional service subscription to use the base software with a publisher's own servers, with the software not being functional on its own due to the servers handling the game world's AI and other systems. Steam itself is a subscription service, but the games sold through Steam are perpetual licensed software and goods. The Steam service is used to purchase and deliver goods.

 

• A perpetual license is a good and a product, and whenever a perpetual license is sold it undergoes transfer of ownership upon the point of sale. Whoever owns a perpetual license owns the instance of software it grants a right to use the intellectual property (IP) of. After the transfer of ownership of a perpetual licensed software, the seller of the license no longer holds any rightful say over anything regarding that non-reproduceable instance of software represented by its perpetual license. This legal fact is not always honoured by perpetual license software sellers (for example, Microsoft with Windows 10 automatic updates and data-harvesting) and it can take lawsuits to force software companies to comply with their legal and moral obligations and to respect the property of others and not violate that property, including software, system, and data property.

 

• EULAs are not laws but are subject to laws. And corporations do not possess law-making powers. Many EULAs are not written by legal experts but by people who just see the formats of previous EULAs and make assumptions from seeing those about what the nature of an EULA is, and then just copy and paste the terms they like the sound of from other EULAs. And many EULAs even from large companies like Microsoft (for example, the Windows 10 EULA) contain made-up and non legally-enforceable stuff in them. Considering that it is even unreasonable to expect people to read EULAs, there is a question of how could an EULA-based argument pass the "reasonable person" or "the man on the Clapham omnibus" legal tests. An EULA can often be nothing more than an extremely long-winded and self-aggrandizing equivalent of printing a © symbol, with the parts of it that reach beyond the meaning of a © symbol being invalid.

 

• EULAs are also used as a tool of manipulation to psychologically ward off potential challenges and to provoke the type of customer behaviour a publisher wishes there to be, by claiming, or, by phrasing things (without outright saying them) in a way that suggests publisher rights and powers beyond what actually exist. There are countless examples of this, but one very familiar one is "this software is licensed, not sold", which plays on the semantics of "software".
  
   
• An EULA and a Terms of Service (ToS) are not the same thing. An EULA purports to apply to a good you've purchased and own, to impose conditions on how you use your own property, and so is invalid. A Terms of Service applies to a service, owned by someone else, that you use via a subscription license or a free account, and so a ToS can be valid. Someone else isn't entitled to set terms for your usage of your own property, which is what an EULA tries to do. But they are entitled to set the terms over your usage of their own property, which is what a ToS aims to do. However, a ToS can still be invalid depending on what terms it claims. And if a ToS tries to add in conditions about your usage of your own property, such as software you've purchased or perhaps modification of your hardware, then at least that part of it is invalid. Just as how some perpetual-license software might include a component that requires a subscription-license for its typical usage (as with some MMOs), a software good that you own might have an online component to which a ToS applies for the sake of accessing 3rd-party servers, with those 3rd-party servers not being a part of your ownership of the base game software you purchased.

 

• Ownership over a thing is what establishes one's decision-making authority over the thing. To sell something is to relinquish it as one's property and to relinquish all of one's decision-making authority over that thing and to transfer decision-making authority over that thing to the person who bought the thing. Anything sold via a perpetual (meaning non-exhausting, eternal, lasting-forever) license is a product that becomes the sole possession of whoever purchases it, and upon its purchase all property rights including all decision-making authority transfer from the seller to the purchaser. And then the seller no longer has any rightful say over anything regarding that non-reproduceable instance of software represented by its perpetual license.

 

• The European Union's highest court, the Court of Justice, has ruled that software, whether sold via a license and whether physically or digitally-distributed, represents a good rather than a service, and that any purchaser of a perpetually-licensed software becomes the exclusive owner over that instance of the software, just as when they purchase any physical good. Most, if not all of the European Union's countries (including the UK) are also signatories to the Nice Agreement, making software in those countries goods. The EU Court of Justice has specifically ruled [archive link], "the copyright holder transfers the right of ownership of the copy of the computer program to his customer".

 

• In a 2016 Australian case regarding Valve's refund policy for Steam, Australia's High Court carefully examined whether computer games sold through Steam are goods (and therefore property and consumer rights apply to them) or services (and therefore no property or consumer rights or apply to them), and concluded that they are fully goods, and that Valve doesn't merely sell a license to use the software, but in-fact sells the software itself, and that whoever buys a game from Steam becomes owner of the software that they purchased. Australia's High Court concluded: "Each of Valve’s challenges to the applicability of the Australian Consumer Law fails. The conflict of laws provisions in the Australian Consumer Law did not essentially carve out an exception for conduct by foreign corporations like Valve governed by a different contractual proper law. Valve supplied goods (which are defined as including computer software)."

 

• In Canada, pre-2019, the government of Canada declared as goods in its Goods and Services Manual (2018 edition), "all computer programs and software regardless of recording media or means of dissemination, that is, software recorded on magnetic media or downloaded from a remote computer network". Since June 2019, Canada has been another signatory to the Nice Agreement, putting its classification of goods and services under the administration of the World Intellectual Property Organization. As a good, software is therefore a private property that is sold and purchased, and which is owned by its purchasers. In 2016, Canada's Federal Court ruled [2] that software licenses are property that transfers to the purchaser at the time of purchase.

 

 

About software ownership in the USA:

 

I am giving this a section of its own because the US has a bit of a messy history on the topic of software ownership and because there's a lot of information about the US and this topic.

 

• A specific matter of software ownership has never gone to the USA's Supreme Court and it's likely that software publishers would prefer that it doesn't, because in all likeliness the verdict will be the same as it was in the EU and in Australia. Because this matter has never gone to the USA's Supreme Court and because regional court verdicts have conflicted with each other in their conclusions, it is baseless for anyone to claim that people in the USA don't own their purchased software. That said, there are plenty of other rulings in the US which give strong support to the view software ownership and rulings which seemingly shut down the main arguments against software ownership.

 

• In the USA, there have been some inconsistent lower court rulings on software licenses. But, they have not all been in agreement with each other and lower court rulings don't apply to all of the USA but only to the specific districts that the rulings were made in. Ninth Circuit rulings, for example, apply only to west-coast USA, representing around just 20% of the US' total population.

 

• The 2010 Ninth Circuit appeals court ruling that many people are familiar with didn't actually conclude that people within its jurisdiction don't own their software, but instead proposed a strange and extremely ambiguous litmus test for people to gauge whether they own a particular software item or not. That litmus test appears to me to based in ignorance of a lot of things, and so I think the Ninth Circuit appeals court was technically-illiterate in 2010 and had their ignorance and confusion exploited by the Autodesk lawyers who took the court for a ride in making them think a software license was some sort of new technology and mechanism that was outside of all existing precedence. But it wasn't. Also, the Ninth Circuit ruling was superseded by a 2013 ruling by the US Supreme Court and so is no more applicable.

 

• On March 19, 2013, the USA's Supreme Court ruled that people in the USA and elsewhere are entitled to resell their copyrighted goods, whether those goods are acquired from a domestic or foreign market, without needing the copyright-holder's permission, in accordance with the first-sale doctrine which states that a seller retains no decision-making authority over a product once they have sold it to someone else. The 2013 Supreme Court ruling supersedes the 2010 Autodesk vs Vernor ruling, as well as any other conflicting lower court ruling in the US. Therefore, any claim in an EULA that a license is non-transferable between people is deemed invalid in the USA just as it is in Europe.
  
   
• While giving the Supreme Court's reasoning for their judgment in the 2013 case, the judge specifically mentioned software as an example of something that the first-sale doctrine necessarily applies to: "A geographical interpretation would prevent the resale of, say, a car, without the permission of the holder of each copyright on each piece of copyrighted automobile software. Yet there is no reason to believe that foreign auto manufacturers regularly obtain this kind of permission from their software component suppliers, and Wiley did not indicate to the contrary when asked. See Tr. of Oral Arg. 29–30. Without that permission a foreign car owner could not sell his or her used car." And also: "For example, the Court observes that a car might be programmed with diverse forms of software, the copyrights to which might be owned by individuals or entities other than the manufacturer of the car. Ibid. Must a car owner, the Court asks, obtain permission from all of these various copyright owners before reselling her car?"
  
   
• Despite the confusion suggested by the US' lower court rulings on software, the US, likewise to Canada, Australia, New Zealand, the United Kingdom, Germany, Austria, France, and I think the rest of the Western world, is signatory to the Nice Agreement, which is a multinational treaty that contains the International Classification of Goods and Services (also known as the Nice Classification) which puts the classification of goods and services for those countries under the jurisdiction and authority of the World Intellectual Property Organization (WIPO). The World Intellectual Property Organization classifies all forms of software as Class 9 goods, including:

 

090829 - computer game software, downloadable

090670 - computer game software, recorded

090589 - computer operating programs, recorded

090658 - computer programs, downloadable

090373 - computer programs, recorded

090802 - computer screen saver software, recorded or downloadable

090717 - computer software applications, downloadable

090791 - computer software platforms, recorded or downloadable

090591 - computer software, recorded

 

Correspondingly, the US Patent and Trademark Office also classifies all software as goods.

 

 

So, in the US, people do definitively own their software. And, since software in the US are goods, this powerful 2017 US Supreme Court verdict against printer company Lexmark, which tried to control printers after selling them, might also apply to software and could say something against a claimed authority of EULAs, as the reasoning is perfectly analogous regarding items sold under copyright law:

 

"A patentee’s decision to sell a product exhausts all of its patent rights in that item, regardless of any restrictions the patentee purports to impose. As a result, even if the restrictions in Lexmark’s contracts with its customers were clear and enforceable under contract law, they do not entitle Lexmark to retain patent rights in an item that it has elected to sell. Pp. 5–13. (a) The Patent Act grants patentees the “right to exclude others from making, using, offering for sale, or selling [their] invention.” 35 U. S. C. §154(a). For over 160 years, the doctrine of patent exhaustion has imposed a limit on that right to exclude: When a patentee sells an item, that product “is no longer within the limits of the [patent] monopoly” and instead becomes the “private, individual property” of the purchaser."

 

And:

 

"Once a patentee sells an item, it has secured that reward, and the patent laws provide no basis for restraining the use and enjoyment of the product."

 

 

For me, this raises important questions about the Ninth Circuit Autodesk vs Vernor case and increases my impression that the judges of the Ninth Circuit court were simply outside of their of zone of comfort and familiarity when they made their ruling. The questions I have about that case are:

 

Did WIPO simply not yet have software added to their goods classification at the time of the appeals case in 2009 and 2010? The Nice Agreement has existed since 1957, but the oldest WIPO classification document on their website is from 2013, and WIPO had already classified all forms of software as Class 9 goods by then.

 

Or, was the topic of software ownership and digital technology in general at that time simply so foreign to courts and lawyers that they didn't realize this was already established in multinational treaties that the US is signatory to, and so and it just slipped by everyone's awareness?

 

Whatever was the case, the Autodesk vs. Vernor case is clearly an anomaly and outdated following the 2013 US Supreme Court ruling. And I expect that if the information about the US' participation in the Nice Agreement and WIPOs classification of software had been available and known by at the time of the Autodesk vs Vernor appeals case, that the outcome of that appeals case would not have been in Autodesk's favour.

 

 

 

 

Now, here is an edited-and-updated presentation of some excepted content from my message to Steam support proving that games are sold through Steam and not rented or leased, and that Valve has officially accepted in court that they sell games and that the games they sell are the owned property of those who purchase them through Steam, with all property rights for games sold through Steam belonging to Valve's customers and not Valve.

 

-------------------- start of excerpt --------------------

 

 

Steam's Australian Consumer Rights Notice Disappears From Front Page, ACCC Investigates

 

Here's the message that the Australian court has required Valve to display for 12 months following the loss of Valve's appeal of a ruling against the company concerning Valve's refund policy for Australians:

 

 

 

And here's that message still on the Steam website (archived version). The message presented on Steam says “When you buy video games from Valve Corporation”, which clearly states that people buy games from Valve through Steam, which means that people don’t rent or lease those games - they buy and therefore own them.

 

Here's the full verdict from the Australian court: http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2016/2016fca0196#_Ref445465996

 

 

The verdict carefully examines whether games sold through Steam are goods and concludes that the games sold through Steam are goods and not services, and that property laws apply to the goods (games) sold through Steam, and that the property rights rest with the purchaser of the games who is not Valve but is whichever of Steam's service subscribers have bought games through Steam.

 

Here are some excerpts from the High Court's verdict:

Quote

" 126    The second issue is whether there was a “supply of goods” by Valve. Valve accepted that if “goods” were provided by it to consumers then the goods had been “supplied” (ts 218). "

 

" 128    The definition of “goods” is inclusive. ... The legal meaning of “goods” can be analogised to the strict definition of “property” which is “a description of a legal relationship with a thing”: Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351, 365-366 [17] (Gleeson CJ, Gaudron, Kirby, and Hayne JJ describing the word “property”). "

 

" 137    Valve supplied consumers with a good. "

 

" 145    I reject Valve’s submission that goods supplied by licence are not a “supply of goods” "

 

" 340    ... "Each of Valve’s challenges to the applicability of the Australian Consumer Law fails." ... "Valve supplied goods (which are defined as including computer software). "

 

As a result of the Australian case's verdict, Valve has explicitly accepted and acknowledged on their website that games sold through Steam are goods (not services), AKA products to which property rights apply, and that Steam customers who purchase games through Steam are the sole owners of those games.

 

 

The European Union's top court has also ruled on the matter for over half a billion people that software licenses are property and goods that are sold and therefore bought, and that property rights over the instances of software that software licenses represent therefore belong to the purchasers of those licenses:

 

EU Top Court: When You Buy Software You Own It   [archive link]

 

The EU court also verified that EULAs are not laws, but are subject to laws. If what a publisher writes in an EULA is unreasonable, it risks invalidating the entire EULA.

 

EU highest court says software licence terms can be ignored
EU Court Says, Yes, You Can Resell Your Software, Even If The Software Company Says You Can't

European Court confirms the right to resell used software licences   [archive link]

Top EU court upholds right to resell downloaded software

EU court rules resale of used software licenses is legal -- even online

EU Court of Justice rules selling 'used' licenses for downloaded software is legal

 

 

A German court has also ruled that games bought through Steam are the properties of those who purchased them through Steam – but has also ruled that Valve as a private company is not obligated to build into their system’s design facilitation for people to transfer their games out of their Steam accounts and into other people’s accounts for the purpose of reselling them.

 

In 2019, a French court ruled [2] that Valve is violating the EUs law by not enabling people to resell their Steam games. This case is currently undergoing an appeal by Valve.

 

 

-------------------- end of excerpt --------------------

 

 

 

I hope that all software owners become aware of the fact that they personally own the software they've purchased licenses for and that claims they do not are baseless and urban myth at best, and at worst are deliberate malicious disinformation and corporate propaganda.

 

A lot of the abuses and software vandalism that software owners have experienced and are currently experiencing at the hands of publishers like Microsoft have only come about because software owners were ignorant and naive of the fact that they do own their software just like you own yours. So, if you want those publisher abuses to stop, then use this information to stamp out any misguided disinformation claims of people not owning their software anywhere you see such claims appearing.

 

 

 

 

 Here's an excellent video by Accursed Farms that's filled with meticulously-researched information and powerful arguments. It's well worth watching if this topic interests you:

 

 

Related threads:

 

 

[Froody129]

I really just skimmed over this because I'm on mobile but as I understand it when you buy a game you are just buying a right to use a copy of the software, and that right and the extent to which it holds true will be defined by the seller of the software.

 

 

[Delicieuxz]

On 29/07/2018 at 10:01 PM, Froody129 said:

I really just skimmed over this because I'm on mobile but as I understand it when you buy a game you are just buying a right to use a copy of the software, and that right and the extent to which it holds true will be defined by the seller of the software.

The right that you mention is the license, the right is to use the software IP itself, and not a right to use a copy of the software IP with the copy belonging to somebody else. The non-reproduceable copy of the software IP that you purchase is the right to use the IP.

 

What you're suggesting would be buying a license of a license of the software IP, and is one more layer of abstraction than what the reality is.

 

 

Here is an excerpt from the Windows 10 EULA.

https://www.microsoft.com/en-us/Useterms/Retail/Windows/10/UseTerms_Retail_Windows_10_English.htm

Quote

2. Installation and Use Rights.

 

a. License. The software is licensed, not sold. Under this agreement, we grant you the right to install and run one instance of the software on your device (the licensed device), for use by one person at a time, so long as you comply with all the terms of this agreement. Updating or upgrading from non-genuine software with software from Microsoft or authorized sources does not make your original version or the updated/upgraded version genuine, and in that situation, you do not have a license to use the software.

 

The definition of "the software" used in the Windows 10 EULA is the Windows 10 intellectual property. And everywhere in the Windows 10 EULA that it's said "the software", it is referring to the Windows 10 software IP, and not the Windows 10 software instances that are sold via licenses to use the IP.

 

Publishers play with the semantics of "software" in the manner that suggests more control and authority to the publisher. By using semantics of "software this way", the publishers aren't technically lying (though they are being conniving) and are telling the truth from a certain perspective, but they perceive a benefit to themselves by faking people out to think that this means the actual software instance that they paid for in a point-of-sale transaction somehow magically and against all logic doesn't belong to them after they just purchased (not rented or leased) it.

[KarathKasun]

Technically the "goods" are licenses, not games/software.

 

You OWN the license, not the underlying code.  The code IS the IP.

 

Also, modern licenses are not written as perpetual.  They are written as valid until the seller says they are not.  They can be revoked at any time.

[Delicieuxz]

On 29/07/2018 at 10:09 PM, KarathKasun said:

Technically the "goods" are licenses, not games.

 

You OWN the license, not the underlying code.

That's right, you don't own the code, which is a part of the intellectual property.

 

However, an instance of that code is also called "the game", just as "the software" can refer to the IP or licensed instances of the IP. And so, there is a matter of semantics at hand.

 

The goods, even as perpetual licenses with each granting an all-encompassing eternal right to use an instance of the IP including all property rights over that instance and the right to resell it per the holder's sole discretion, is fully indistinguishable from owning a non-reproduceable copy of the IP. The perpetual license and the ownership of an instance of the software IP are one and the same thing.

 

As the perpetual license is sold, bought, and owned, so is the non-reproduceable instance of the software IP that license represents.

 

On 29/07/2018 at 10:09 PM, KarathKasun said:

Also, modern licenses are not written as perpetual.  They are written as valid until the seller says they are not.  They can be revoked at any time.

Modern licenses are almost always perpetual. If you aren't paying a recurring subscription fee to keep renewing your software license, it's perpetual.

 

Contract laws do not allow a clause that a license can be terminated unilaterally by the publisher for any reason that wasn't pre-established before the contract was agreed to. Such a claim would be invalid and you won't see such a claim in any EULA that was written by a legal expert. In fact, I think you are unlikely to find such a claim in any modern EULA.

 

Such a claim flies in the face of the logic of selling something: Once something is sold the party that sold it no longer retains any decision-making authority over it. So, no publisher could claim to invalidate a license that they don't own because they already sold it to somebody.

 

That might have been one of the many made-up clauses that EULAs in the past have had before publishers realized that such a claim is invalid. As I've written, EULAs are not laws, and many times they aren't written by legal experts - and even when they are they are commonly filled with wording meant to suggest invalid things without outright claiming them.

 

Other old-school EULA claims that you don't see anymore because they were never legal in the first place include:

 

- By using this software you waive all rights to sue the publisher or developer

- You may not reverse-engineer this software

- this license is non-transferable

 

 

Another one that is mostly invalid but which you might see in modern EULAs (I think it was in the Windows 10 EULA until recently): If you're a US citizen then you may only sue the publisher or developer in a particular state. Various states in the USA specifically forbid any contractual claims that violate consumer rights, and the right to sue for damages and to seek justice.

 

As I said, I think that the Windows 10 EULA used to contain that mostly-invalid clause, though the Windows 10 EULA I've just looked at appears to have modified that clause to be more ambiguous and suggestive rather than declarative:

 

https://www.microsoft.com/en-us/Useterms/Retail/Windows/10/UseTerms_Retail_Windows_10_English.htm

 

Quote

you may sue us in small claims court in your county of residence (or if a business your principal place of business) or our principal place of business–King County, Washington USA if your dispute is with Microsoft

 

It used to claim that US citizens may only sue Microsoft in either California or Washington... I don't exactly remember which state though I thought it was California. The what I think is updated language is merely suggestive that people may (not may only) sue Microsoft in Washington... which is meant to get people to assume that that's the only state they can sue Microsoft in, when that isn't the reality.

 

As I wrote in the OP, EULAs are also used to trick people into assuming things that aren't necessarily true through strongly-suggestive though ambiguous wording, through intimidation by appearance of authority (despite EULAs not being laws), and through legally-indefensible claims.

 

It was against Microsoft's interest to claim that people could only bring lawsuits against Microsoft in a particular state because that is something outside of Microsoft's authority to decide and it was invalid for Microsoft to assert anything in that regard. So, Microsoft has changed the wording to merely sound as if people can't sue the company in states other than Washington, even though the EULA is not actually claiming such, and such wouldn't be true if it were claimed by Microsoft.

[mr moose]

23 minutes ago, KarathKasun said:

Technically the "goods" are licenses, not games/software.

 

You OWN the license, not the underlying code.  The code IS the IP.

 

Also, modern licenses are not written as perpetual.  They are written as valid until the seller says they are not.  They can be revoked at any time.

True and false in Australia, here you have a right to use the software indefinitely unless the software vendor specifically says the product will only work for X years.  Support is different than ability to use.  Here you have bought the rights to use the software, you have not bought a right to decompile it or copy it.  At best the courts might side with you if you modify the software to do something else but you don't  circumvent DRM, let anyone else use it nor make money beyond the original intent of the software (I.E you modify it to circumvent access fees to linked services).

 

 

[Delicieuxz]

11 minutes ago, mr moose said:

True and false in Australia, here you have a right to use the software indefinitely unless the software vendor specifically says the product will only work for X years.  Support is different than ability to use.  Here you have bought the rights to use the software, you have not bought a right to decompile it or copy it.  At best the courts might side with you if you modify the software to do something else but you don't  circumvent DRM, let anyone else use it nor make money beyond the original intent of the software (I.E you modify it to circumvent access fees to linked services).

According to Australia's ACCC:

 

“This important precedent confirms the ACCC’s view that overseas-based companies selling to Australian consumers must abide by our laws. If customers buy a product online that is faulty, they are entitled to the same right to a repair, replacement, or refund, as if they’d walked into a store”.

 

I think that the part about being entitled to repair software that isn't functioning as intended should include bypassing DRM if it's the cause of a person being unable to access a game they've purchased.

[Guest]

It is New Zealand law that when you are describing a product, that is explicitly what you get. For instance if a product is advertised as a self-stirring mug (I myself have 4), then you get a self-stirring mug, and you will keep it in a functioning condition until its lifetime is up (Consumer Guarantees Act applies to all goods and services, if you are dissatisfied you are entitled to either a repair, a refund or a replacement for the lifetime of the product, which is why the Apple warranty, not AppleCare, applies to 2 years instead of 1). 

 

So on steam if you want to buy a game off New Zealand servers, then New Zealand law applies. If you buy a game, then you get the game and are entitled to every bit thats advertised for as long as you want to play the game. If you are advertised as to buying the game, then you buy the game and not a licence. 

[Guest]

8 minutes ago, Delicieuxz said:

According to Australia's ACCC:

 

“This important precedent confirms the ACCC’s view that overseas-based companies selling to Australian consumers must abide by our laws. If customers buy a product online that is faulty, they are entitled to the same right to a repair, replacement, or refund, as if they’d walked into a store”.

 

I think that the part about being entitled to repair software that isn't functioning as intended should include bypassing DRM if it's the cause of a person being unable to access a game they've purchased.

You are not entitled to repair it yourself however (and if its the same as NZ, which it might not be), it's the seller's choice whether it's a repair, refund or replacement. 

[kirashi]

1 hour ago, Delicieuxz said:

--SNIP--

Sweet, so this means I only ever have to buy ONE copy of any software, period. So how does one go about transferring their Office software or Windows 10 Pro software or literally any other software between systems without having to deal with activating it and/or reinstalling each time?

[Delicieuxz]

4 minutes ago, kirashi said:

Sweet, so this means I only ever have to buy ONE copy of any software, period. So how does one go about transferring their Office software or Windows 10 Pro software or literally any other software between systems without having to deal with activating it and/or reinstalling each time?

If you move an instance of software from one system to another, activating it on the new system while deactivating it on the old system, it is still just one instance of the software IP - just like if you move your car from one parking spot to another, it still remains a single instance of the car, but in a different place.

 

One instance doesn't mean one installation. An instance means a one-off copy that can be installed anywhere - but may only exist and be used in one place at a time. A single instance of software may be re-installed many times.

[kirashi]

Just now, Delicieuxz said:

If you move an instance of software from one system to another, activating it on the new system while deactivating it on the old system, it is still just one instance of the software IP. One instance doesn't mean one installation. An instance means a one-off copy that can be installed anywhere - but may only exist and be used in one place at a time. A single instance of software may be re-installed many times.

Totally get that, and have been advocating this for years. However, until software developers remove the woes that are DRM, we're a long way off from being able to do this easily.

[KarathKasun]

1 minute ago, Delicieuxz said:

If you move an instance of software from one system to another, activating it on the new system while deactivating it on the old system, it is still just one instance of the software IP - just like if you move your car from one parking spot to another, it still remains a single instance of the car, but in a different place. One instance doesn't mean one installation. An instance means a one-off copy that can be installed anywhere - but may only exist and be used in one place at a time. A single instance of software may be re-installed many times.

Actually, there are provisions for this scenario in the license.  If it is OEM, the license is the hardware, not the software.

[Mira Yurizaki]

I wonder what would happen if you tell the Steam Discussion Moderator that I used keys from EA games I bought on Steam to add the games to my Origin account.

[Delicieuxz]

19 minutes ago, kirashi said:

Totally get that, and have been advocating this for years. However, until software developers remove the woes that are DRM, we're a long way off from being able to do this easily.

I guess that is a case of what a German court ruled regarding the ability to transfer games between Steam accounts for the purpose of reselling them:

 

https://www.rockpapershotgun.com/2014/02/10/german-court-rules-against-rights-to-resell-steam-games/

 

By the way, that article's title is misleading. The German court did not rule against people's right to resell Steam games and the right to sell games has already been established for all of the European Union (which Germany is a part of) by the European Union's top court. The German court ruled that although people are entitled to resell their software, Steam being a private company isn't obligated to design their Steam service in a manner that facilitates the transfer of games from one account to another:

 

“While the doctrine of exhaustion limited the rights holders’ powers with regards to an individual DVD, it did not require them to design their business in a way that facilitated the sale of used games and therefore did not make the Steam terms of service unenforceable.”

 

So, effectively people can't transfer games across digital distribution accounts, for now. However, I don't think that works out to be the same thing as not being able to resell a Steam or other digital distribution game. A license is a right, and while it is a tangible thing, it isn't a physical thing and it isn't necessarily defined by where a game sits in an online account just as a retail-bought game isn't in an online account at all. A person could hypothetically agree to transfer that right to somebody else in a profitable transaction and then choose to not ever access the game in their Steam account - and they could also permanently remove the game from their Steam account using Steam's available features.

 

 

11 minutes ago, M.Yurizaki said:

I wonder what would happen if you tell the Steam Discussion Moderator that I used keys from EA games I bought on Steam to add the games to my Origin account.

Lol! That's true, and I also mentioned that point in my full message to Steam support, along with many similar points:

 

When I responded him that that isn't the case, that the Steam Subscriber Agreement pertains to Valve's digital delivery service (which Valve doesn't sell licenses for) and the conditions and limitations of usage of that delivery service, while the games themselves are separate entities and perpetual licenses for them are (re)sold by Valve through Steam.

 

Hence there is no mention of leasing games or renting them in the SSA, hence games are sold at full retail price, hence many Steam games give access to the specific game license key in the right-click menu for them, hence many retail games have been redeemable on Steam, hence many such games have also been usable as a retail product, hence many Steam-bought games have been dual-registerable on other digital services such as Origin, GoG, and Uplay, hence all of Steam-bought games having EULAs from the publisher (most of the time there's even a link to it listed on the Steam store page for a game), and hence everything else.

 

There's nothing about anything to imply that people rent or lease games through Steam - game licenses are sold, and they are bought through Steam, while the Steam service is Valve's and isn't sold or bought and is conditional to the SSA. The Steam service and the game licenses for Steam-bought titles are separate entities and the SSA doesn't set the terms or ownership for other publishers' games.

[mr moose]

37 minutes ago, Delicieuxz said:

According to Australia's ACCC:

 

“This important precedent confirms the ACCC’s view that overseas-based companies selling to Australian consumers must abide by our laws. If customers buy a product online that is faulty, they are entitled to the same right to a repair, replacement, or refund, as if they’d walked into a store”.

 

I think that the part about being entitled to repair software that isn't functioning as intended should include bypassing DRM if it's the cause of a person being unable to access a game they've purchased.

 

They are entitled to a repair, replacement or refund.  Removing DRM is not a condition of that.   If software fails to work due to DRM then the customer is entitled to a full refund, not a modified version of the software.

[SquirrelChunk]

23 minutes ago, M.Yurizaki said:

I wonder what would happen if you tell the Steam Discussion Moderator that I used keys from EA games I bought on Steam to add the games to my Origin account.

Steam wouldn't care, you bought the game from them they've had their 30%.  If you're now downloading it on Origin all that's done is cut Steam's costs for hosting the files

[Sniperfox47]

The title of this thread is *incredibly* misleading.

 

As has been mentioned you buy a lisence to the software, *not* the software itself. Software is code and code is IP. It's no different than a book. When you buy a book you're buying an instance of that book. You aren't buying the book itself. You can't then go and make copies of that book or do other things that act against the book owners copyright, trademarks, or patents. Owning a copy of Red Fish Blue Fish doesn't mean you own Red Fish Blue Fish itself. You're buying the goods, not the IP associated with those goods.

 

*No* country equates selling a copy of a game/movie/music/book to selling the game/movie/music/book itself. Period. That would have massive sweeping consequences to other IP law and would defeat the whole point of IP law.

 

And before you say "well that's just semantics", yes. Yes it is. It's legal semantics and it's what these words mean in a context of ownership. At the end of the day all discussions of what a thing is are inherrently arguments of semantics so using that as a deflection is kinda silly.

[asus killer]

i think the moderator on steam has just misinformed, there were (I don't know if it still exists) rent or lease of games back in the day, it was legal. But that has nothing to do with steam, steam actually sells the games. They even have different legal consequences as to taxes i believe.

 

Another discussion is what they sell. They sell a copy of the game, not the actual IP or the code. The copy is yours by right.

[Delicieuxz]

15 hours ago, Sniperfox47 said:

The title of this thread is *incredibly* misleading.

 

As has been mentioned you buy a lisence to the software, *not* the software itself.

The title is exactly precise. People don't try to buy software IP when they make a software purchase. They try to buy a copy of that software IP, and they receive and own a copy of that software. Their copy is still the software of [software name], and so they have bough [software name].

 

You buy the software itself, represented by a license which is a right to use the IP. The instance of the IP is owned by the purchaser. "Software" doesn't inherently mean the IP just like watching [movie name] doesn't inherently mean that a person is watching the master reel, or that listening to [music name] doesn't mean that a person is playing the master recording, or that reading [book name] doesn't mean that a person is reading the original manuscript.

 

Quote

Software is code and code is IP. It's no different than a book. When you buy a book you're buying an instance of that book.

With the exception that "software" is explicitly the code IP, that's exactly what the OP and my follow-up posts say. Software can mean the IP, the code, the compiled data, the license, an archived copy of the IP...

 

It is true to say that when a person purchases software, they own that software, so long as the meaning isn't the IP. And the default meaning of "software" is not the IP, but is more likely to be the functioning compiled product - which people buy. That's what I think most people assume, and obviously a great many people do.

 

Quote

You aren't buying the book itself.

Again, that comes down to the semantics of "book". If meaning the book IP, then no. If meaning the book that a person holds in their hand with a particular title, then yes.

 

Quote

You can't then go and make copies of that book or do other things that act against the book owners copyright, trademarks, or patents. Owning a copy of Red Fish Blue Fish doesn't mean you own Red Fish Blue Fish itself. You're buying the goods, not the IP associated with those goods.

The OP says all of that.

 

Quote

*No* country equates selling a copy of a game/movie/music/book to selling the game/movie/music/book itself. Period. That would have massive sweeping consequences to other IP law and would defeat the whole point of IP law.

No country has an official stance on defaulting "software" to mean the software IP. The software instance is also "the software", depending on the speaker.

 

Quote

And before you say "well that's just semantics", yes. Yes it is. It's legal semantics and it's what these words mean in a context of ownership. At the end of the day all discussions of what a thing is are inherrently arguments of semantics so using that as a deflection is kinda silly.

Then you would be surprised to discover that most people don't understand that "this software is licensed, not sold" refers to the software IP and not the software instance. It seems like you understand that part, which is great, but then you assume that "software" automatically means the IP - which it doesn't necessarily at all, and I don't think that default interpretation is enshrined in any country's law, and I feel like I can assure you that isn't what the average person is thinking when they hear or say 'you don't own your software'.

 

Saying 'you don't own your software' is meaningless because software isn't different than any other retail product in the respect of what is owned and what isn't. Nit-picking about people saying they own their software is the same thing as chiding somebody calling referring to the clothes they're wearing as "my clothes" by saying 'you don't own your clothes, you own an instance of those clothes'. Well, they actually do own those clothes because they bought them and they meant their owned instances when they spoke "my clothes". In that context, "clothes" refers to the instances they've bought - and so does "software" in most discussions.

 

Semantics mean that multiple interpretations apply, and the context of the usage of "software" establishes what particular thing "software" refers to. But EULAs don't provide that context and so a lot of people, probably most, people assume that "software" refers to the instance they paid for, and they just assume that some black magic means that they've paid for something and been sold something yet didn't receive something that they own. That's how the urban myth of 'you don't own your software' has come about in the first place.

 

This post is to clarify that they did purchase the software - just not the software IP.

[TheLaserCucumber]

4 hours ago, Delicieuxz said:

Both the European Union and Australia's highest courts have definitively ruled that software represents a good (not a service) and that any purchaser of a perpetual software license becomes the exclusive owner over that instance of the software, just as when they purchase any physical good, and there has been ruling made by a comparable court anywhere in the world that contradicts the European Union and Australia's top court rulings.

We’ll isnt Microsoft’s EULA kind of illegal then?

If you buy something, you should be able to "do with it what you want", right?

But Microsoft locks keys that were installed on too many different computers. (Not at the same time btw)

[Delicieuxz]

1 hour ago, TheLaserCucumber said:

We’ll isnt Microsoft’s EULA kind of illegal then?

There is some bogus stuff in Microsoft's Windows 10 EULA, and there have been extremely absurd bogus stuff in past EULAs of Microsoft and other companies.

 

I've edited in some examples to this post:

 

Quote

If you buy something, you should be able to "do with it what you want", right?

Buying and selling is a matter of transferring ownership in exchange for currency. Whatever you bought you own, and therefore you are the sole decision-maker over the things you have bought. When you sell something, you no longer own that thing and so you've relinquished your authority over that thing - but whoever bought it owns it and has gained authority over that thing.

 

When Valve advertises games for sale and then sells games, those games have been purchased by the people who bought them, and they then possess authority to decide what they want to do with those games.

 

In the Australian case against Valve regarding Valve's refund policy, Valve submitted as an argument that Valve does not supply goods to people who bought games through Steam. Australia's High Court rejected that claim of Valve's

 

http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2016/2016fca0196#_Ref445465996

 

Detailing of the topic of what "goods" and services are starts at section 126 in the judgment. The establishment that Valve exhausting advertises games for sale is in section 140.

 

As mentioned in section 141, Valve submitted an argument that selling software licenses is not the same thing as selling software. Australia's High Court fully rejected that submission:

 

"141    Valve submitted that there was no supply of goods to any consumer because consumers require a non-assignable licence to access and use the video games and they must log on to Steam to verify their account and subscriptions to the game. Valve also submitted that the provision of any licence for the use of computer software is not the provision of computer software."

 

"142    This submission omits relevant facts and, in any event, cannot be accepted."

 

 

Australia's High Court also judged that the idea a license for software can be sold without selling the software itself is not rational because a right to use software only possibly exists when the software itself first exists:

 

"145    I reject Valve’s submission that goods supplied by licence are not a “supply of goods”"

 

"148    A contractual licence to use goods is, essentially, a hire without a bailment." 

 

In other words, a transaction for the purpose of using software (a good) that doesn't include the software itself (the supply of goods) is an an ineffectual transaction where one side isn't getting what they paid for.

 

A right to use a software can't exist without possession of the software itself, and so the Australian High Court rejected Valve's submitted argument and Valve accepted the High Court's judgment.

 

Quote

But Microsoft locks keys that were installed on too many different computers. (Not at the same time btw)

As far as I'm aware, that's to enforce the fact that one license = one software instance. If the instance is being installed on many machines, then it suggests that it might not be being used as an instance. But if it is being used as an instance then it's the right of the software owner (whoever purchased the instance) to install it on a different machine whenever they choose to.

 

If a person's Windows license key becomes locked by Microsoft due to being registered with too many different systems, that person can call Microsoft support and have the key de-registered from all the systems they aren't using it with. So, there's an inconvenience involved with having to contact Microsoft support, but it doesn't actually deny people's right to keep using their owned Windows instance.

[mr moose]

23 minutes ago, Delicieuxz said:

There is some bogus stuff in Microsoft's Windows 10 EULA, and there have been extremely absurd bogus stuff in past EULAs of Microsoft and other companies.

 

I've edited in some examples to this post:

 

Buying and selling is a matter of transferring ownership in exchange for currency. Whatever you bought you own, and therefore you are the sole decision-maker over the things you have bought. When you sell something, you no longer own that thing and so you've relinquished your authority over that thing - but whoever bought it owns it and has gained authority over that thing.

 

When Valve advertises games for sale and then sells games, those games have been purchased by the people who bought them, and they then possess authority to decide what they want to do with those games.

 

In the Australian case against Valve regarding Valve's refund policy, Valve submitted as an argument that Valve does not supply goods to people who bought games through Steam. Australia's High Court rejected that claim of Valve's

 

http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2016/2016fca0196#_Ref445465996

 

Detailing of the topic of what "goods" and services are starts at section 126 in the judgment. The establishment that Valve exhausting advertises games for sale is in section 140.

 

As mentioned in section 141, Valve submitted an argument that selling software licenses is not the same thing as selling software. Australia's High Court fully rejected that submission:

 

"141    Valve submitted that there was no supply of goods to any consumer because consumers require a non-assignable licence to access and use the video games and they must log on to Steam to verify their account and subscriptions to the game. Valve also submitted that the provision of any licence for the use of computer software is not the provision of computer software."

 

"142    This submission omits relevant facts and, in any event, cannot be accepted."

 

 

Australia's High Court also judged that the idea a license for software can be sold without selling the software itself is not rational because a right to use software only possibly exists when the software itself first exists:

 

"145    I reject Valve’s submission that goods supplied by licence are not a “supply of goods”"

 

"148    A contractual licence to use goods is, essentially, a hire without a bailment." 

 

In other words, it's like selling something but not delivering what was offered / paying for something but not receiving what you paid for. Or, it's like agreeing to sell somebody your car but then tricking the buyer into agreeing that they paid for the car but they don't actually get the car - they just get an idea that they have a right to use the car. It's like agreeing to something but not fulfilling your part of the agreement despite taking the other person's part of the agreement.

 

It's bogus to suggest that a license, a right to use a software can exist without possession of the software itself, and so the Australian High Court rejected Valve's submitted argument and Valve accepted the High Court's judgment.

 

As far as I'm aware, that's to enforce the fact that one license = one software instance. If the instance is being installed on many machines, then it suggests that it might not be being used as an instance. But if it is being used as an instance then it's the right of the software owner (whoever purchased the instance) to install it on a different machine whenever they choose to.

 

If a person's Windows license key becomes locked by Microsoft due to being registered with too many different systems, that person can call Microsoft support and have the key de-registered from all the systems they aren't using it with. So, there's an inconvenience involved with having to contact Microsoft support, but it doesn't actually deny people's right to keep using their owned Windows instance.

You have to be really careful when interpreting legal discourse.  You seem to have latched onto an idea that the courts have rejected valves assertion that they are not selling a physical good but a more a service.  What the courts have done is dismissed the notion that the services they are supplying is not relevant to Australian law which has a definition of goods for consumer law purposes.   The courts are only saying a game is considered a good because valve are selling it as such.  Therefore as a consumer good it is required to have all the consumer guarantees under Australian consumer laws, it is not saying it is a good that can be manipulated or change as a physical good might be, because in this case there are other laws (IP and copyright) that come into play.

 

 

[Guest]

Except the one loophole is that when you die, your account is nullified & your family loses all the games you bought. 

May be yours but it’s ONLY yours. 

It’s Not like you can will the username & password according to the company. 

[EPENEX]

Just use free (libre) software. If it doesn't respect your freedom, you shouldn't be using it unless you have a good reason- and then you should know the drawbacks and limitations. This is why I do not buy games on Steam.