Term licenses limit the licensee's/user's ( in the case of something like Autodesk's rental policy) access to their intellectual property and forces one into a partnership of sorts that seems unconscionable. It's so one sided.
An interesting paper on this - "The Evolving Doctrine of Unconscionability in Modern Electronic Contracting"
https://scholarship.shu.edu/cgi/viewcontent.cgi?article=1675&context=student_scholarshipIt's like the shiny shoes business guys are forcibly wedging themselves between users and their data. That's not cool.
As stated in this document:
https://www.fenwick.com/FenwickDocuments/Patent_Licensing.pdfby the law firm that did the first shrinkwrap software license for Jobs and Wozniak in 1975, on page 9:
"
“Quiet Enjoyment”
Licensees, having paid for the right to use licensed technology, generally seek to ensure that
nothing interferes with the benefits they have received. For example, licensees are concerned
with their ability to obtain assistance from the licensor in fixing defects that are discovered in
the technology, to have the right to fix the defects themselves if the licensor is unable to do
so, to obtain periodic upgrades and other maintenance services from the licensor, to transfer
their rights if they sell their business and to continue enjoying the technology even if the
licensor becomes bankrupt.
"
Note that under various sections of the USC, a licensor basically loses a lot of the rights to the licensed product. For instance, in the sale of a record - which is interesting since the USC uses this analogy for computer software - Led Zeppelin can not prevent the sale of the original copies that is in the collection of an estate. The law limits the licensor to protection fro pirating and that's about it.
Licenses seemingly should fall under First Sale Doctrine.
https://www.justice.gov/archives/jm/criminal-resource-manual-1854-copyright-infringement-first-sale-doctrineJohn Deere tried pulling that shit with limiting owners of their products the right to repair their equipment. The "Right to Repair" -
https://en.wikipedia.org/wiki/Right_to_repairNote the mention of DRM...
Now, here's the difference that has yet to be tested in law. That citing of DRM usually involves a passive activity. Listening to Led Zeppelin. Using a John Deere tractor. OK...
But with software AS A TOOL - something that a licensee uses to create THEIR OWN Intellectual Property - this falls under seemingly different consideration. The aforementioned having to maintain a relationship - in perpetuity - with a licensor so that a licensee can enjoy the fruits of their work... their IP.
Recently, there are stories of the legality of Non-competes and certain rights a skilled employee has to practice their craft without being encumbered to a single entity that they currently work for. You cannot enslave some one; ie. prevent them - without compensation - from earning a living with their skills. That's a violation of the 14th amendment.
Of course there are limitations to prevent things like IP theft from the previous employer.
OK...
So far we've covered what a license is and how it's typically limits the licensor.
But now think about this - as previously stated, all of this is a blatant attempt to build a business with a passive activity that denies the rights of access to a licensee's IP with a forced, construed partnership...
So what does that mean?
Now I'm sure all of you that have actually read a EULA - which is questionable in the first place since it's agreed to under duress, another issue that makes the agreement very one-sided. In those EULA's the software licensor usually has a liability clause that states if you use their software to make a product that eventually - due to the licensee's ignorance/fault - cause harm or death, they are only liable for a paltry amount ($200 or similar).
This limitation of liability is usually reserved for things under the first sale doctrine. A car company is not responsible for you getting drunk and killing a mother and her child.
So in a very one-sided way, they themselves are trying to invoke a first sale.
But now - since you as a user have to maintain a relationship with them to access your IP - they kinda nullify that since they are acting as an implied partner. Partners are typically liable for the actions of the partnership, including debts. Debts, such as lawsuits.
And as brought up to me during a conversation, if I do discover a safety issue and no longer maintain a relationship with the licensor, I can be prevented from rectifying that issue due to the lack of participation of the licensor.
So it comes down to a simple contractual obligation from both sides - You have your limited liability, I have my right to access my data in perpetuity. Simple, two sided, fair solution.
Again, I'm guessing that post Vernor v. Autodesk, this was a consideration to restructure Autodesk into a "rental" scheme.
Now the problem of a rental scheme for the user of that rented software. That user is now investing a lot of time and money utilizing that rental property - a very unique rental property unlike some retail lease where a company may invest a large sum of money to build out a leased property. The uniqueness is due to the fact that the investment is now tied to a proprietary binary format - so a user can't easily take their IP/business model to any other "storefront" - it's stuck in that renter's format.
It would be like investing $30,000 in some house you rent. All that effort would be gone once the rental agreement ends - whether due to business reasons or the renter no longer offering the rented property.
Now one can argue that a renter can just export their IP/data in some third party format. But again that would most probably entail a significant duplication of effort to get back to where they were.
I for one, want "Quiet Enjoyment" - I want a guarantee that I can access my IP in perpetuity. I worked long and hard to develop that, spent considerable sums of money to obtain it, and I want to limit the risk of not being able to access it.
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