Oxford Aviation / Transair CD-ROM Fair Use Legal Issues

[splatt]

Hi all,

I found this out the hard way today and thought I would let you all know so you don't run into the same hassles as me. If like me you weren't told anything about not being able to resell, give away or even lend your copy of the CDs to someone at the time you bought them then, like me, when you got them home and popped them into your computer you probably also assumed a certain amount of leeway for fair use.

I'm done with my set of CDs and genuinely but wrongly believed I could resell them as they cost about £300 at the time I bought them direct from Oxford Aviation. So I setup an eBay sale for them yesterday but today I received notification from eBay that Oxford Aviation Media had requested they cancel my sale because it breaches the license I agreed to when I used the CDs on my computer. Here is the email I got back from Oxford when I queried this.

Dear Simon
Thank you for your email.
The reason your item was requested for removal from eBay is because you
have breached the intellectual property rights of OATmedia trading as
Oxford Aviation Training Limited. eBay's description of this is rather
vague, but basically, you have breached these rights by attempting to
sell the item on. This breaches the End User Licence Agreement which
you agreed to when you installed the computer based training on your PC,
and which states that you may not lend, copy or resell the item.
All new or second hand OATmedia products found on eBay are requested for
removal. Previous sales on eBay have been a result of listings being
missed by search functions, or prior to the eBay VeRO programme
recognising OATmedia.
I hope this answers your questions
Best wishes
Becky

Becky Simms
Product Sales and Administration
OATmedia


So there ya have it. Apparently for £300 all I actually own are the CDs on which the software is written and I can't get rid of them because they contain software which Oxford own the rights to. Go figure because there is copy protection on these CDs that enforces copy protection anyway so it's not like I'm printing off dozens of the things and giving them away for free.

Beware all and don't get caught out by not reading the legalese like me!

Simon

[powdermonkey]

Thanks Simon, good to know....but then how can we re-sell manuals, books, or any other item like movies etc, these all have copyright issues! By that token then a second hand market should not exist, in order to constantly guarantee 100% new product sales.......complicated I'm sure, but good to know. What if OAT were to get a % of your sales profit!:}

[scroggs]

This is exactly what we have told wannabes several times on this forum, whenever people have attempted to advertise such things here.

Sometimes it really does pay to read the small print - such as the terms and conditions of use of this site, for instance!

Scroggs

[Martin1234]

OAT's approach sounds weird.

If you buy a book, cd, dvd, magazine etc you own that particular copy. You are allowed to use it as much as you like, resell it or lend it out to a friend. You might, however, not be allowed to copy it, rent it out etc.

If you buy a cd-rom you assume that you can resell it without any limitation if nothing else has been clearly said. The so called "End User Licence Agreement" could state anything but I doubt that it's legally enforcable. It doesn't really matter anyway, because OAT will probably not be able to prove that you've actually used the cd-rom.

I bought the meteorology cd-rom second hand and I am selling it now when I don't need it anymore. OAT will not be able to stop me from doing so. If they really wanted to prevent this they should make the program available on-line (or a cd-rom to be bought at cost price) and then you buy a "personal licence" to use the program. This way should be ok, but they can't prevent me from selling a cd-rom I bought... as much as no one can prevent me from reselling a dvd or anything else I bought legally.

"By reading this message you agree to transfer all of your assets to Martin1234". Legally enforcable? Well, OAT might think so!

[potkettleblack]

Did you check the OAT EULA? My experience of places like ebay is that they have a big load of spin ready to fire off at the first wind of trouble which is probably what you got in that email. It is easier for them to close the auction rather than argue back and forward. Can you imagine them ever actually reviewing a copy of the EULA themselves - yeah right! Probably best to try and sell it privately by going back to a flight school if you are confident that the rules aren't being bent.

[scroggs]

EULAs are a bit of a legal minefield, and as far as I know there's no definitive answer to whether they are fully legal or not. If the EULA is not readable before the software packaging is opened (which may be achieved by a page on the licencer's website), it is possible that parts of the EULA may be unenforceable. That said, the rules of copyright are fairly explicit and can be researched quite easily.

This article (http://www.eff.org/wp/eula.php) gives a good, amusing, though US-centric, view of the situation. It may serve as background material, though it is perhaps useless in a legal sense vis-a-vis OATmedia's EULA. Here (http://www.gripe2ed.com/scoop/story/2004/12/20/8257/4850) is a Californian case history where EULAs were found to have little or no legal merit. This article (http://www.kevinboone.com/eula.html) examines the UK legal case, though it doesn't go into the problems of resale. One of the things it does say is: But what has Fred actually bought from CompuSave? He has bought the property rights to the physical materials (largely worthless) and the right to use the software in a particular way. He hasn't bought any rights to ownership of the software itself. To people who are unfamiliar with intellectual property law this sounds a bit odd, but really it's no different to the agreement you have with a landowner when you enter the premises on licence. A supermarket grants me a licence to enter their property for the purposes of shopping, but that does not give me the right to carry away the display counters. It's the same with software (or books, or audio recordings): the right of use is sold separately from the right of ownership. All this is governed by the Copyright Designs and Patents Act (1988).

This backs up what OAT says, at least in part, and the author of the article presents case history to suggest that the EULA is legally enforceable. He then goes on to suggest that the ruling (in the Scottish Court of Session) was flawed and gives his reasons, but this is just the opinion of one lawyer.

After some research, I've reached the following conclusions:


A EULA does not affect your rights to a refund if it is not visible at the point of purchase.
A EULA that contains reasonable provisions backed up by acts of UK Law is enforceable.
It would seem that, subject to some specific provisions (such as no copies remaining on any disks or computers in your possession), it may be legal in UK to sell software on once it is superfluous to your requirements.


The last point is suggested by several anecdotal references to the sales of secondhand Microsoft software and the protection offered by UK consumer legislation, but I haven't been able to pin down the legal references to give you. Unfortunately, there seems to be little case law surrounding these things - neither consumers nor software manufacturers seem to have been too keen to test EULAs in an English court!

In summary: a EULA cannot be enforced until you have had the opportunity to read it. Once you have had that opportunity, and you accept the EULA, a contract is formed between you, the retailer and the software originator. However, EULA conditions which directly contradict national legislation have no legal standing.

As far as I am concerned (and EBay obviously feels similarly), until you can show legal precedent that says you may resell intellectual property without the consent of the owner (as defined by the EULA), you are on dodgy ground. If you wish to group together to fund a test case (or you can find one that's already occurred), please let me know how it goes!

Scroggs

PS This will have no bearing on Pprune's prohibition of advertising!

[splatt]

Wow, thanks for contributing that bit of research Scroggs. Much appreciated.

New information has come to my attention since yesterday. Now, this may not be the intention but as a whole the suppliers and manufacturers appear to want to have it all their way.

According to the EULA the large sum of money you pay for these CDs (arguably more than most people ever pay for their Windows Operating system) gives you ownership of the physical CDs and a license to use the software (but which is not transferable in any way, shape or form as has already been established).

Here's the new information: A person on the flyer forums is requesting assistance in getting hold of a replacement for one of the CDs that has become damaged and will no longer run the software. By my reckoning since the CD is his property and its now damaged but his license to use the software should remain intact he should be able to pay a small fee to cover the cost of posting and packing a replacement CD and perhaps the cost of the CD but should not be charged for a new license for the software (which is mostly what you pay for when you buy these CDs). However it appears that he is being refused a replacement unless he pays for the license again. As far as I am aware not even the notorious Microsoft would take this stance, you CAN get replacements for damaged MS CDs so long as you can prove license to use the software.

:hmm: So put this guy's situation next to my situation and you end up with confusion all around - either as customers we own our copy of the software or we own the cds after sale - they can't still own both and us nothing because if they did that would mean we have paid for thin air and that amounts to theft. Stop me before I get carried away :}

I'm going to post a copy of the EULA as pasted to the flyer forums after this post ...

[splatt]

OXFORD AVIATION SERVICES LIMITED - IMC Rating.

COPYRIGHT STATEMENT - INDIVIDUAL LICENCE TERMS - PERMITTED USE - WARRANTY - LIABILITY

WE OWN THE COPYRIGHT IN THE ENCLOSED SOFTWARE. IT IS UNLAWFUL TO USE THIS SOFTWARE ON A COMPUTER OR TO LOAD THIS SOFTWARE ONTO A COMPUTER WITHOUT OUR LICENCE. WE ARE WILLING TO LICENCE THE ENCLOSED SOFTWARE TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT ALL THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE REMOVING THE ENCLOSED CD-ROM AND USING IT ON OR LOADING IT ONTO YOUR COMPUTER. BY USING THE CD-ROM ON YOUR COMPUTER OR LOADING IT ONTO YOUR COMPUTER YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS WE ARE UNWILLING TO LICENCE THE SOFTWARE TO YOU, AND YOU SHOULD, WITHIN 14 DAYS OF PURCHASE, RETURN THE UNUSED CD-ROM, PACKAGING AND ALL ACCOMPANYING ITEMS TO US OR YOUR SUPPLIER WITH PROOF OF PURCHASE FOR A FULL REFUND.


1. LICENCE

1.1 We own the copyright in the software contained within this package and all accompanying documentation (the "Software").

1.2 You own only the CD-Rom on which the Software is recorded, but we shall at all times retain ownership of the Software.

1.3 This licence is personal to you as the purchaser of the Software and this is given for your benefit only. This licence cannot, except as set out in this Agreement, be resold or transferred to anyone else.


2. PERMITTED USE

2.1 As purchaser of the Software you may load the Software onto and/or use it on a single computer which is under your control.

2.2 If you are an individual user, you may only use the Software for private study. The Software in your possession or under your control cannot be reused or transferred to training organisations, educational establishments of any description or other individuals, including students on any training course.

2.3 If you are a training organisation or educational establishment of any description using the Software for purposes other than individual private study, then you must NOT use this Software unless you have entered into a Training School User Licence Agreement with Oxford Aviation Services Limited. Your use of the Software and use by the students enrolled on your courses is governed by the terms of such agreement. Such Software copies in your possession or under your control cannot be reused or transferred to other training organisations, educational establishments of any description or individuals, including students. Where your Training School User Licence Agreement requires you to do so, you must purchase additional copies of the Software for each new student intake on your course. In connection with this you must, if we request, supply details of student numbers and provide us with reasonable access to conduct a verification audit.

2.4 You may not:
(a) run the Software on two or more computers at the same time;
(b) sub-license, assign, rent, lease, sell on or transfer the licence or the Software or except as permitted under 2.3, distribute copies of the Software;
(c) translate, reverse engineer, decompile, disassemble, modify or create derivative works based on the Software except as permitted by law; or
(d) make copies of the Software.


3 WARRANTY

3.1 We warrant that for a period of thirty (30) days from delivery:
(a) the CD-Rom on which the Software is recorded will be free from defects in materials and workmanship under normal use; and
(b) the copy of the Software in this package will materially conform to the documentation (whether hard copy or electronic) that accompanies the Software.

3.2 Failure of either warranty entitles you, as your sole and exclusive remedy, to obtain from us either a replacement free of charge or a full refund if you return the CD-Rom to us or your supplier during the warranty period with a dated proof of purchase.

3.3 We do not warrant that the Software will meet your requirements or that its operation will be uninterrupted or error free. In particular, you acknowledge that the Software is designed as a teaching and learning aid and accordingly we do not warrant that students instructed will pass their examinations or put what they have learned into practice.

3.4 Except as expressly provided in this Agreement, no warranty, condition, undertaking or term, express or implied, statutory or otherwise, is given or assumed by us and all such warranties, conditions, undertakings and terms are excluded to the fullest extent permitted by law. Notwithstanding 3.4, if you are an individual user, this Agreement shall be without prejudice to your statutory rights.


4. LIABILITY

4.1 Our liability to you for any losses shall not exceed the amount you originally paid for the Software.

4.2 In no event will we be liable to you for:
(a) loss of profits, business, data, revenue, goodwill or anticipated savings (both direct and indirect); or
(b) special, indirect or consequential loss or damage whether arising in tort (including negligence), misrepresentation, contract, breach of statutory duty or otherwise.

4.3 Nothing in this Agreement limits our liability to you in the event of death or personal injury arising from our negligence, breach of any obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982, or damage for which we are liable under Part I of the Consumer Protection Act 1987 or for fraud.


5. TERMINATION

5.1 This Agreement and the licence granted by it automatically terminates if you:
(a) fail to comply with any provisions of this Agreement;
(b) destroy the copies of the Software in your possession; or
(c) voluntarily return the Software to us.

5.2 In the event of termination, you must destroy all copies of the Software from all storage media in your possession. You may retain the CD-Rom on termination of this Agreement provided the Software is erased. If the Software cannot be erased you must destroy the CD-Rom and documentation.


6. GENERAL PROVISIONS

6.1 This Agreement constitutes the entire Agreement between you and us and supersedes all previous communications, representations, understandings or agreements with respect to its subject matter, except any fraudulent misrepresentation.

6.2 Any failure or delay by us to enforce any term of this Agreement shall not be deemed a waiver of such term.

6.3 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.

6.4 This Agreement is governed by and construed under English law. You irrevocably agree to submit to the exclusive jurisdiction of the English Courts.


OXFORD AVIATION SERVICES LIMITED 2005
Oxford Airport, Kidlington, Oxon
OX5 1QX, England
Tel: +44 (0) 1865 844290
email: [email protected]

©Copyright Oxford Aviation Services Ltd 2005.

Thanks to Blue Robin for originally posting this on the Flyer forums

[splatt]

Transair just called and agreed to replace the disc for P&P, so fair play to tham after all

my faith has been restored

Looks like they got their act together :) Well done Transair

[dwshimoda]

OK,

So what's the difference between all the books that are sold on ebay, and software?

There is regularly Oxford books and software up for sale - I know - I bought some of the books.

Presumably they would try to take a similar stand on the books, but can't? Or did I just get lucky and Oxford missed the auction?

It also begs the question of how ebay can sell so many DVD's, CD's and software, which presumably have the same copyright issues.

I'd be very interested to see if anyone with a legal background on here could make a comment?

DW.

[scroggs]

The difference between books and software is that when you purchase the item, the ownership of the physical material is transferred to you. In the case of a book, that includes all the print contained within. In the case of a CD, it includes the physical CD and any manuals and packaguing it's sold with. In neither case is ownership of the ideas, concepts or presentations within the material transferred. Copyright legislation accepts that it is impossible to stop you selling a book on, but at least (in practical terms) you can only sell it to one person; it is easy with software to pass it to many people, which is why software publishers are so sensitive.

Nevertheless, as condition 3.4 in OAT's EULA above makes clear, your statutory rights are not affected by anything contained within a EULA. Software publishers (including OATmedia) just hope that you never make the effort to find out what your statutory rights are!

A person on the flyer forums is requesting assistance in getting hold of a replacement for one of the CDs that has become damaged and will no longer run the software. By my reckoning since the CD is his property and its now damaged but his license to use the software should remain intact he should be able to pay a small fee to cover the cost of posting and packing a replacement CD and perhaps the cost of the CD but should not be charged for a new license for the software (which is mostly what you pay for when you buy these CDs). However it appears that he is being refused a replacement unless he pays for the license again. As far as I am aware not even the notorious Microsoft would take this stance, you CAN get replacements for damaged MS CDs so long as you can prove license to use the software

The contract here is between the buyer and the retailer, not the publisher. It's up to the retailer to replace the CD-ROM at reasonable cost, though they can legitimately insist on the return of the original, damaged disks. There is no requirement to purchase a new licence unless the material contained on the CD has substantially changed.

Scroggs

[too_sleepy]

Hi
Not an ideal solution, but from what I've so far about the OAT EULA there's no restriction on giving the CDs away. You won't gain very much but it certainly won't suit OAT

[king rooney]

The behaviour of OAT regarding this issue is a disgrace in my opinion. They may or not be legally entitled to prevent the cds from being sold on second hand, that doesn't matter.
Its the fact that they are prepared to spend time searching out people trying to sell their products on ebay and prevent them from doing so which I find offensive. All in the name of forcing people to pay full price for their expensive products, they really will go to any lengths to maximise their profits, to the extent of quibling over one lousy cd!

It is good that you can give the cds away, i suggest that in future anyone with OAT cds that they no longer need post them on pprune for anyone to take. That would i think not be advertising for commercial gain, so would be allowed on here, plus would be one in the eye for OAT!

[scroggs]

No, it would not be allowed on here. It would still constitute advertising, and that is not allowed.

This EULA condition:1.3 This licence is personal to you as the purchaser of the Software and this is given for your benefit only. This licence cannot, except as set out in this Agreement, be resold or transferred to anyone else. explicitly disallows the transfer of the licence, which would include giving the software away. You're not going to get around it like that. OAT is not unique or unusual in applying and enforcing software EULAs; I am sure you will find the other major schools acting similarly.

Scroggs

[flystudent]

Interesting topic.

I have a couple of questions about it.

If you purchased the software but did not use it, or as you installed it you disagreed with the EULA (i.e. didnt accept the YES I agree) then in this instance you have not accepted the EULA and are free to sell the product on ?

If you are the recipient of a 2nd hand product (e.g. it was given to you) and the EULA has been accepted by someone else (the original purchaser) can the same EULA for the same product be enforced on the 2nd user, i.e. the 2nd user could sell the product 2nd hand ?

And using the example below, could one reverse engineer the CD and sell it on, without ever installing the software, again not accepting the EULA.

There must be some case law somewhere

[flystudent]

Further information.......... from http://lwn.net/2001/1108/

____________________________________________________________ ___
License agreements and first sale doctrine. Below the radar of much of the free software community, another interesting case was coming to a conclusion in U.S. District Court in California. In this case, our old buddy Adobe Software was pushing for an injunction against SoftMan Systems. Softman, it seems, has been buying Adobe software collections, splitting them into their component parts, and selling those parts independently. Adobe's claim is that this reselling activity violates the end-user license agreement (EULA) covering the program, and is thus a copyright violation.

The court disagreed (this ruling, too, is available in PDF format). Essentially, the court has said that the EULA does not apply to SoftMan, for a couple of interesting reasons. One is that SoftMan never agreed to the EULA, and is thus not bound by its terms:


In the instant case, the Court finds that there is only assent on the part of the consumer, if at all, when the consumer loads the Adobe program and begins the installation process. It is undisputed that SoftMan has never attempted to load the software that it sells. Consequently, the Court finds that SoftMan is not subject to the Adobe EULA.
The ruling also casts doubt on whether agreeing to a click-through license can truly be binding to the consumer.

The other aspect of the court's ruling is that the software was sold - not licensed - to SoftMan:


The Court understands fully why licensing has many advantages for software publishers. However, this preference does not alter the Court's analysis that the substance of the transaction at issue here is a sale and not a license.
Since this transaction is a sale, the first sale doctrine applies:


In short, the terms of the Adobe EULA at issue prohibit licensees from transferring or assigning any individual Adobe product that was originally distributed as part of a Collection unless it is transferred with all the software in the original Collection. This license provision conflicts with the first sale doctrine in copyright law, which gives the owner of a particular copy of a copyrighted work the right to dispose of that copy without the permission of the copyright owner.

These conclusions are interesting, in that they have the potential to tilt the interpretation copyright law a little toward the rights of users of copyrighted material. For example:

Both DVD cases depend, partly, on the claim that a commercial DVD package was "improperly" reverse engineered. It is the software's EULA, however, that prohibits that reverse engineering. If the code is reverse engineered without installing it and agreeing to the EULA (by, say, disassembling it on a Linux system), the EULA does not apply. The Bunner case, in particular, could be affected by this ruling.

Reselling that unwanted Windows installation on your new computer should be legal.

Electronic books, too, are subject to first sale; it should be possible to resell them.
The ruling gives an out to software companies that wish to continue to "license" rather than sell a copy of their software. The transaction is considered a sale when it involves a single payment and use of the software for an unlimited time. Thus, the "rent-a-program" schemes being proposed by many are untouched.
This affirmation of the first sale doctrine is a welcome strengthening of the rights of consumers of copyrighted material. Here is an interesting scenario, though: suppose an unethical vendor obtains a copy of a program licensed under the GPL, makes a change, and resells the product under a proprietary license? Consider, for example, a Linux distribution where the C library has been replaced with a proprietary, value-added package. The vendor could argue that the tweaked copy can be resold under the first sale doctrine. Massive distribution could be made possible by "purchasing" a new copy of the GPL code for each copy sold. We may never see a vendor attempting this approach, but the possibility exists.

[flystudent]

from www.scl.org - society for computers and law a uk website which quoted the above case.

Jeremy Warner then picked up Lorne's strand on license strategies. A graduate of Aberdeen and Edinburgh Universities, he holds a Masters in IT and Telecommunications Law from Strathclyde and is an associate in Biggart Baillie's IP and Technology group.


Jeremy began his licensing presentation by saying he had typed "licence hunting" into an internet search engine and discovered that you have to be over 18 to hunt moose in Canada! But the basis of the discussion was use licence versus ownership, and the misunderstanding that can occur between the software industry and its customers. Lack of clarity can (and has) led to bad feeling, misuse of software, and litigation - as ever, prevention is better than cure.


Traditionally, the software licensing strategy would inevitably involve an end-user licensing agreement, where the customer is the end-user and not the purchaser. Thus, the licence is not a sale, only a licence to carry out activity that would otherwise be prohibited by copyright restrictions.


Jeremy took us back ten years when it was commonplace for software contracts to prohibit the software being moved onto a new piece of hardware. As networked computing became more commonplace, these reduced use restrictions became more painful for users. Licensing for a set number of users, rather than specific hardware, now takes precedence. We are also seeing a move towards software that cannot be used until the licence is accepted - shrink-wrap, click-wrap or web-wrap - where users are at least given the opportunity of becoming more aware of the licensing terms by accepting them up-front.


Jeremy added that another recent trend was a move towards fixed duration licensing. Traditionally, there has been a single payment for perpetual use, but we are beginning to see fixed-term licensing and Microsoft is an obvious example of this. Whether this is borne out of a desire to reinforce the license rather than sale point (perhaps in light of US product liability suits?), or simply to boost income, is a discussion that could continue into the small hours. Whatever your viewpoint, it is certainly a challenge for the industry, as demonstrated by Microsoft's recent delays and its desire to broker deals with major users.


Clearly there is an economic element to this on the part of developers, but Jeremy brought a US case to the audience's attention from November 2001 - Softman vs Adobe. Here, Softman was bulk-buying bundled software from Adobe and selling the individual programs separately on a Web site. There was no reseller contract in place, Softman had not accepted any EULA and, despite Adobe's protestations, the court favoured Softman and accepted that they were free to distribute the software they had purchased. Taken together with product liability that would apply to a sale but not a licence, and it becomes clear why large software developers such as Microsoft might be keen to reinforce the licensing point.

[mad_jock]

To be honest I have quite a bit of sympathy with OAT and Alex at Bristol.

The market for professional pilot training is quite small.

The standard of notes and training aids has come on leaps and bounds in the last 5 years with I should imagine quite alot of hard work and investment from all concerned.

You only need to see the CBT courses of some manufactures to see how advanced the material is from both parties. That old 737 CBT CD that was doing the rounds.

Most these days won't have had the joy of seeing some of the utter rubbish which was touted as learning material at the start of JAR.

The computer based training aids shouldn't in my opinion be viewed as a physical product. Its a service provided to you, to aid your learning. If you went to OAT or Alex and booked a revision course you wouldn't be suprised if they told you where to go if you turned up with a mate to watch with you. The only thing the CD-rom is allowing you to do is use the talents of the instructor who has created the CD with the help of some computer guru to learn at your own pace in your own home. Which presumably worked as you don't require them anymore.

Microsoft is of course a completely different kettle of fish who have manipulated the market and forced upgrades on customers who recieve little if any gain (quite often a hit due to upgrades of hardware required) from the dictates of a monopoly supplier. Who quite robustly use immoral practises to remove any innovation coming from 3rd parties. And I have no moral problems at all using a product which I didn't want to upgrade, and I certainly don't use any of the features which the upgrade has compared to my legal copy of an old vesion which they have decided I can't use anymore and didn't work properly in the first place.

[scroggs]

Interesting topic.
I have a couple of questions about it.
If you purchased the software but did not use it, or as you installed it you disagreed with the EULA (i.e. didnt accept the YES I agree) then in this instance you have not accepted the EULA and are free to sell the product on?

No. The software is not yours and must be returned to the retailer

If you are the recipient of a 2nd hand product (e.g. it was given to you) and the EULA has been accepted by someone else (the original purchaser) can the same EULA for the same product be enforced on the 2nd user, i.e. the 2nd user could sell the product 2nd hand?

No. You have received the goods illegally (assuming OAT's EULA is legal) and have no rights to use or transfer them.

And using the example below, could one reverse engineer the CD and sell it on, without ever installing the software, again not accepting the EULA.
There must be some case law somewhere

No. You are in breach of copyright (as I understand it), which would have nothing to do with any EULA.

As for the cases you quote, and the anecdotal info, they are US and not particularly relevant.I am not interested in posts telling us how to get around EULAs and I will not let Pprune be a vehicle for advocating software piracy. I advise you all to be aware of these EULAs, and to assume that they are legal until a precedent has been set that clarifies the situation.

Scroggs

[flystudent]

Hi Scroggs

I have no interest in getting around EULA's but am purely looking at it from a point of view of law (agreed it is US case law and not English)

With regard to your reply



No. The software is not yours and must be returned to the retailer

but is that not a term of the EULA ? and so by not accpeting it you are not agreeing ot the terms of it and so can not be held bound by the "if you dont accept it you should return it" statment ??

Ah well, I'm no legal eagle just interested in the topic. That's all, dont worry I dont have 20 machines copying the OATS met cd in my office. !! Honest:). SUrely there are some legal eagles who read this site... is there any case law out there in the UK ??

p.s. US case law - I wouldnt say its anecdotal. ;)

[scroggs]

I think you'd have to take this to a lawyer, but, as I said in an earlier post: If the EULA is not readable before the software packaging is opened (which may be achieved by a page on the licencer's website), it is possible that parts of the EULA may be unenforceable. That said, the rules of copyright are fairly explicit and can be researched quite easily.

I would read the rest of that post; as I understand the law, you do not own the software contained on the media and therefore if you do not wish to use it, and do not accept the EULA, you must return it to the retailer for a refund.

Scroggs

[Martin1234]

I am not interested in posts telling us how to get around EULAs and I will not let Pprune be a vehicle for advocating software piracy.
By "get around" implies that it is legal so why not let everyone know of it? Even if it's illegal, should everything on pprune that informs about a practice that's illegal be censored?
I advise you all to be aware of these EULAs, and to assume that they are legal until a precedent has been set that clarifies the situation.
If everyone adheres to the EULA we won't get any precedent.
As for the cases you quote, and the anecdotal info, they are US and not particularly relevant.
Not so sure about that. If the Oxford products are advertised, sold and used (especially if it's by a private consumer) in a non-uk country the UK legislation should in most cases not be applicable.

[scroggs]

Even if it's illegal, should everything on pprune that informs about a practice that's illegal be censored?

Yes. This is not negotiable, or up for discussion. You want to discuss how to engage in illegal activities, you can do it elsewhere.

Scroggs

[Martin1234]

This is not negotiable, or up for discussion. You want to discuss how to engage in illegal activities, you can do it elsewhere.

So now we can't mention that "parker time" exists or discussing a practice at a company that falsifies maintenance records because this could encourage others "to engage in illegal activities"?!

It's a big difference between informing about loopholes or illegal practices and to encourage others to engage in illegal activities.

[scroggs]

Firstly, your post gives the impression that you wish to learn, or inform others, about how to illegally extract software from copyright material. That will not happen on this board.

You inferred that the expression 'getting around EULAs' somehow means that such a practise is legal. It is not, as I understand the law.

The seem to think that this is an appropriate forum for discussing the finer points of pirating computer software. It is not, nor will it ever be.

There is no free speech here; you are allowed to post and/or read only that which we (the owners and moderators of Pprune) deem appropriate material for our site. If you have a problem with that, you are free to leave. If you attempt to 'get around' our rules and conditions, you will be banned from this site.

Scroggs

[Martin1234]

I am interested in discussing whether or not it is legal to not adhere to the wording of the EULA. I've never in any way encouraged anyone to deliberately brake the law. Facts should be presented and everyone should be able to make a decision of their own if the practice is likely to be legal or not. This is even more important in a case like the one discussed here which is a grey area. It's very hard to discuss this matter without mentioning both legal and illegal practices. I've never mentioned pirating computer software.
You inferred that the expression 'getting around EULAs' somehow means that such a practise is legal. It is not, as I understand the law.
Well, that's your interpretation and what you think... and probably some of the sponsors of Pprune as well...
Sorry for being cynical but I was very surprised that a subject that really matters to many readers of this forum can't be discussed as freely as we can do about much else.

[scroggs]

You can discuss the finer points of the legalities of EULAs as much as you like, though we've done it enough here; this is not the appropriate forum to do so. We even have a forum on Pprune that is expressly designed to address computer and internet issues, where you will find experts with a great deal of experience of the software indusry ready to debate with you all you like. But you will still not be allowed to discuss how to reverse-engineer software or otherwise avoid copyright issues.

It's the Computer & Internet (http://www.pprune.org/forums/forumdisplay.php?f=46) forum.

Scroggs

[smith]

So what's the difference between all the books that are sold on ebay, and software?


I think the reason they do this is because, although the CD will have security protection in it, there will be someone there ready to break it and copy the CDrom (the old saying, for every person there is devising new security methods there are 1,000 waiting in the wings to try and hack it).

Once the security code is broken it would be quite easy to burn a load of copies in jig time. With the book of say 500-1000 pages, standing over a photocopier reprinting each page would not be so easy. And if you are prepared to buy a 2nd hand copy rather than a legit copy, you are more likely to try and copy it for your mates or even, dare I say it, for profit.

Just my tuppence worth, but I do agree with a previous poster in that a lot of time and effort goes into making these CD's and quite rightly the owners should protect their property, in the future it may lead to more and improved computer based learning packages being produced.

[Flying Farmer]

Just a thought for you Scroggs et all. This product then cannot legally be bought as a present and given to a second party? :} Might be a few folks going to hell :E

[PPRuNe Towers]

What? You mean you ripped and rewrapped that Jethro DVD you sent us for Xmas FF???:uhoh:

What Scroggs said is policy.

Rob

[Flying Farmer]

DVDs have got as far as Cornwall :O

Ripped sounds awfully painfull not a clue what thats all about ;)

Points taken on board Rob, hope all is well :ok:

[BestAviation]

This is quite an interesting post as I believe it touches an area of the aviation training industry that many other non-aviators struggle with as well (ex. music industry, moves etc).

On one hand I understand OAT trying to protect their investment as I’m sure these software packages are quite expensive to develop. On the other hand I find it a bit stingy to try and prevent a poor flight student from selling it on ones he is done with it. All technicalities and lawyer lingo aside – what if he just sold the physical CD? Clearly he has ownership over this and is free to do with it what he pleases. If the buyer decides to put it in his computer (thus breaching the EULA) should then be a matter between the owner of the CD and the creator of the software.

On a slight digression I know of flight schools that make the students buy the Jeppesen student pilot package from them and refuse them to obtain them through other sellers. OAT is not alone in trying to squeeze an extra pound or two out of their students.

On the reverse engineering bit there is quite an interesting fellow one should look closer at – Jon Lech Johansen (http://en.wikipedia.org/wiki/DVD_Jon), otherwise known as DVD Jon, managed to crack the protection device on the DVD plates (to the industries big furry). And before you get exited scroggs – this has nothing to do with his methods of cracking it or reverse engineering.

What happened to DVD Jon was that the music and movie industry launched a big lawsuit against him (for obvious economical reasons). Jon won the lawsuit filed against him and the court drew (for us) two interesting conclusions:

1) Production of such software is not illegal – same way as selling a crowbar to a burglar isn’t – as long as it was not intended for illegal use. Ok – so that has very little to do with the OAT CDs. On the other hand number 2) has….

2) It is reasonable to allow a user to make backup copies of his purchased software, thus bypassing a copy protection created by a manufacturer is not an illegal act as long as the copy is for personal use and solely used to backup the licensed software (this means you cannot give or sell the copy or original ones you have done this). This is also why MP3 files are still in legal circulation – It is the media you purchased the rights to use. As long as you remain the user it is immaterial how it is streamed.

OK – So it doesn’t help you get rid of the OAT CDs and make some of your money back – but I thought it would be interesting to mention. After all this is a growing problem for most media producers regardless of what medium they sell – and rightfully so. On the other hand I believe you should be allowed to resell your product as used – of course given that it is the original copy. You never hear about the music industry cracking down on the sale of used CDs.

On a last note it can be interesting to mention other gray area usage – ever experienced in class that a video was played (ex. one of the many inflight videos)?

How many times have you seen pictures pinched from aviation picture websites in presentations held by your instructor?

Or – random pictures “borrowed” of the internet in a presentation?
As all schools are commercial establishments and groundschool is a commercial revenue creator such usage is actually very illegal without a licensed agreement between the creator/rightful owner unless this is specifically specified elsewhere. It all seems very innocent – in reality it isn’t.

Alright – all this law stuff has made be drowsy….

Btw, do you know what they call 10 lawyers at the bottom of the ocean? ;)
….a good start…. :hmm:

Off to study the OAT Met CD. My roommate bought one – and as I am not allowed to use it….I have to watch him watch his precious CD – all for the sake of legality. :ok: