Monday, November 5, 2007

Adobe v. One Stop Micro

As I mentioned in the preceding post, the courts have not yet arrived at an agreement as to whether software is sold or licensed. We've already looked at SoftMan v. Adobe, where the court found that Adobe was selling their software. On the other side of the fence is Adobe v. One Stop Micro. In this case the court ruled that Adobe was licensing their software.

The line of reasoning used in the One Stop Micro case isn't very persuasive, especially when viewed in light of the more recent ruling in SoftMan. Let's look at how the judge in One Stop Micro came to the conclusion that Adobe was "licensing" their software, not selling it.

One Stop Micro was selling "Educational Versions" of Adobe software, and Adobe claimed that One Stop was violating Adobe's reseller license agreement, the OCRA. Adobe argued that the OCRA specifically made the transaction a license, not a sale. One Stop Micro, of course, argued that the OCRA was actually a contract for sale. One Stop Micro pointed out that the OCRA itself used terminology such as "purchase" and "own". But the judge observed that the OCRA also used other language indicating that it established a license. Since the OCRA itself seemed contradictory and ambiguous, the judge deemed that it would be necessary to find other evidence by which to determine whether the OCRA constituted a license or a contract for sale.

One piece of supposed "evidence" that supported the position that the software was licensed, was Adobe's inclusion of an EULA with the software. The judge wrote:
"It would be incongruous to conclude that educational resellers are owners of the Adobe educational versions, while the end users who the resellers distribute to are granted a mere license."
How the judge jumped to the conclusion that under the "sale" theory, Adobe sells a copy of the software to the reseller, but the reseller must then sell a license to the end user is unclear. And inexplicable. Clearly, if the reseller "owns" the copy they purchase, then when the reseller sells that copy to the end-user, the end-user would now "own" the copy for the same reasons that the reseller owned the copy previously. Adobe's claim to be licensing to the end-user via the EULA is by no means evidence that supports their other claim that they are licensing to resellers via the OCRA. That's just one dubious claim supporting another virtually identical dubious claim. Nevertheless, the judge found this reasoning to be, and I quote, "particularly compelling".

Next, the judge relies on a statement from Adobe's Vice President and General Manager for North America:
"Adobe's intent in drafting and signing these documents to create a license, rather than a sale of our software." (sic)
He uses similar statements from others, including at least two other Adobe resellers, and one or two other experts who all testify to the effect of, "It's standard practice in the industry to license software instead of selling it. Everybody does it this way." The judge presents these statements as evidence that supports Adobe's position. But there is never any evidence shown as to how these transactions within the industry at large are indeed licenses and not sales of goods.

By this line of reasoning, used car salesmen could sell their cars claiming them to be "new" so long as every other used car salesmen does the same. Obviously this would never happen, because the fact is the cars are used. What the salesmen claim doesn't change reality, even if they all collectively claim the same thing. Just because every software publisher in the industry claims they license their software, it doesn't make their claim any more true than the used car salesmens' claim.

The judge's biggest error here is that he fails to look at the economic realities of the exchange in question. His line of reasoning is so weak, and neglects to address the most important questions (i.e. does the transaction fit the definition of a lease or a sale under the Uniform Commercial Code), that it's no wonder the judge in SoftMan v. Adobe wrote this about it:
"To the extent that the court in One Stop found that the transaction at issue was in fact a license, and not a sale, this Court simply declines to adopt that analysis."
I think that's the legal way of politely saying, "What the hell were they thinking?"

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