FS: Cobb AccessPORT for 2005 Mazda RX-8 + MazdaManiac files
02-11-2010, 12:29 AM
#101
ROTFL, I already said before I posted even one comment in this thread that I am not a lawyer, so what makes you think I would be able to out gun you in an arguement over case law? In laymens terms, the ruling seem simple enough to me (desite the fact that our legal system is incredibly more complex than I realize)
I simply said to prove what your saying. You havent really disagreed with me, just said that I problably dont have full command of the issue. But, if you dont want to prove me wrong, I understand, people have lives other than trying to spend them to prove me wrong. But I guess as it stands, my thoughts on the matter havent changed and the evidence at present seems to agree with me and Red.
I simply said to prove what your saying. You havent really disagreed with me, just said that I problably dont have full command of the issue. But, if you dont want to prove me wrong, I understand, people have lives other than trying to spend them to prove me wrong. But I guess as it stands, my thoughts on the matter havent changed and the evidence at present seems to agree with me and Red.
To then say that the rulings seem simple enough to you.... does that mean that you have read the entire cases and the case quotes are accurate summations of the opinions therein? If you have, again, that is fine enough for me and I shall trust your word.
This isn't any kind of competition between us, just an exchange of ideas.
I have no need to prove anything with regard to my prowess of the law. Those close to me can vouch. So can a few fellow forum members whom I have helped stay out of trouble.
BTW, Riley, don't sell yourself short. When one reads the Rules of Criminal/Civil Procedure (whether Federal or State) they make complete sense and are really not that complex. Even the gamesmanship (which is why I chose to NOT join the legal profession) isn't that hard to decipher and deal with. Child's play, actually, and those lawyers who manipulate process are simply implicitly admitting that have no grasp of the case substance. That sort of thing happens in all of life, though, and even behind-the-scenes on this very forum.
Last edited by Charles R. Hill; 02-11-2010 at 12:38 AM.
02-11-2010, 02:07 AM
#102
The legal stuff is for discussion.
What the OP is doing is fairly clear and undeniable. Here's an example that kind of shows what the OP is doing, though slightly different since the AP requires you to uninstall the files for the AP to be usable on another vehicle.
Lets say someone is trying to sell a game they bought. They advertise the game to include the game itself as well as the key code to download the expansion. What the seller fails to mention is that he has already used this code on his computer and it wont be valid on any other computer. The OP has then ignored the ability to use everything advertised and is saying that the product is capable of more than it is.
The OP does not explicitly say that the maps will work with any other car, but he is clearly trying to sell it as such. The 250 hp is just a plain lie.
What the OP is doing is fairly clear and undeniable. Here's an example that kind of shows what the OP is doing, though slightly different since the AP requires you to uninstall the files for the AP to be usable on another vehicle.
Lets say someone is trying to sell a game they bought. They advertise the game to include the game itself as well as the key code to download the expansion. What the seller fails to mention is that he has already used this code on his computer and it wont be valid on any other computer. The OP has then ignored the ability to use everything advertised and is saying that the product is capable of more than it is.
The OP does not explicitly say that the maps will work with any other car, but he is clearly trying to sell it as such. The 250 hp is just a plain lie.
02-11-2010, 09:02 AM
#103
Registered
iTrader: (1)
Join Date: Oct 2007
Location: Fort Worth, Texas
Posts: 1,691
Likes: 0
Received 0 Likes
on
0 Posts
Basically, RC is arguing that you can't license stuff; That when you buy a device with software on it, you own the software and the device.
This is the same as saying that when you buy a record, you not only own the record, you also own the music.
Of course this is completely wrong and goes totally against the basis of copyright, but that probably doesn't matter since he has his opinion about this and its academic, anyway.
This is the same as saying that when you buy a record, you not only own the record, you also own the music.
Of course this is completely wrong and goes totally against the basis of copyright, but that probably doesn't matter since he has his opinion about this and its academic, anyway.
Lets say you are a book seller and sell me a book. I have every right to turn around and sell that book, as long as I sell ONLY that book. I OWN that copy of that book. Same goes for your files. If you sell me a copy of your files I own that one copy of files no matter what you say. This DOES NOT MEAN I can make infinite copies of that one file and sell those. To use your example, I would own that copy of the music. I would not own the right to duplicate the music and sell that too, that is the right YOU own.
This is not my opinion, this is FACT. If you are too stupid to see that, then that is not my problem.
02-11-2010, 09:04 AM
#104
Registered
iTrader: (1)
Join Date: Oct 2007
Location: Fort Worth, Texas
Posts: 1,691
Likes: 0
Received 0 Likes
on
0 Posts
This is not any different then me providing code to help someone run their applications. I did not write the application but my code is running on top it to meet the customers needs. They can not turn around and sell my code to someone else that is running the same software.
02-11-2010, 09:11 AM
#105
No, I'm not. You are misuing copyright. What does copyright infringement mean? It means that someone is COPYING your work. Aka I make multiple copies of a book on xerox machine. I then take these copies and sell them. THAT is copyright infringement.
Lets say you are a book seller and sell me a book. I have every right to turn around and sell that book, as long as I sell ONLY that book. I OWN that copy of that book. Same goes for your files. If you sell me a copy of your files I own that one copy of files no matter what you say. This DOES NOT MEAN I can make infinite copies of that one file and sell those. To use your example, I would own that copy of the music. I would not own the right to duplicate the music and sell that too, that is the right YOU own.
This is not my opinion, this is FACT. If you are too stupid to see that, then that is not my problem.
Lets say you are a book seller and sell me a book. I have every right to turn around and sell that book, as long as I sell ONLY that book. I OWN that copy of that book. Same goes for your files. If you sell me a copy of your files I own that one copy of files no matter what you say. This DOES NOT MEAN I can make infinite copies of that one file and sell those. To use your example, I would own that copy of the music. I would not own the right to duplicate the music and sell that too, that is the right YOU own.
This is not my opinion, this is FACT. If you are too stupid to see that, then that is not my problem.
02-11-2010, 09:13 AM
#106
Registered
iTrader: (1)
Join Date: Oct 2007
Location: Fort Worth, Texas
Posts: 1,691
Likes: 0
Received 0 Likes
on
0 Posts
I was not being sarcastic. I was giving you benefit of doubt that you may have read the cases you cited and, if you say you had, that was good enough for me. One does not need to be a lawyer, nor even a para-legal, in order to be quite good at this stuff and I was allowing for the notion that you might know what you are talking about and I was willing to take your word for it.
To me this is the most important part of that case:
"When a copyright holder chooses to sell a copy of his work, however, he “exhaust[s] his exclusive statutory right to control its distribution.”
Quality King Distribs., Inc. v. L’Anza Research Int’l, Inc., 523 U.S. 135, 152 (1998).
Case 2:07-cv-01189-RAJ Document 31 Filed 05/20/2008 Page 6 of 21
"Because a
first sale exhausts the copyright holder’s distribution right, future distributions of the
copy do not implicate the Copyright Act. United States v. Wise, 550 F.2d 1180, 1187
(9th Cir. 1977) (noting that after “first sale,” a vendee “is not restricted by statute from
further transfers of that copy”). A first sale does not, however, exhaust other rights, such
as the copyright holder’s right to prohibit copying of the copy he sells."
BTW, Riley, don't sell yourself short. When one reads the Rules of Criminal/Civil Procedure (whether Federal or State) they make complete sense and are really not that complex. Even the gamesmanship (which is why I chose to NOT join the legal profession) isn't that hard to decipher and deal with. Child's play, actually, and those lawyers who manipulate process are simply implicitly admitting that have no grasp of the case substance. That sort of thing happens in all of life, though, and even behind-the-scenes on this very forum.
02-11-2010, 09:18 AM
#107
Registered
iTrader: (1)
Join Date: Oct 2007
Location: Fort Worth, Texas
Posts: 1,691
Likes: 0
Received 0 Likes
on
0 Posts
The legal stuff is for discussion.
What the OP is doing is fairly clear and undeniable. Here's an example that kind of shows what the OP is doing, though slightly different since the AP requires you to uninstall the files for the AP to be usable on another vehicle.
Lets say someone is trying to sell a game they bought. They advertise the game to include the game itself as well as the key code to download the expansion. What the seller fails to mention is that he has already used this code on his computer and it wont be valid on any other computer. The OP has then ignored the ability to use everything advertised and is saying that the product is capable of more than it is.
The OP does not explicitly say that the maps will work with any other car, but he is clearly trying to sell it as such. The 250 hp is just a plain lie.
What the OP is doing is fairly clear and undeniable. Here's an example that kind of shows what the OP is doing, though slightly different since the AP requires you to uninstall the files for the AP to be usable on another vehicle.
Lets say someone is trying to sell a game they bought. They advertise the game to include the game itself as well as the key code to download the expansion. What the seller fails to mention is that he has already used this code on his computer and it wont be valid on any other computer. The OP has then ignored the ability to use everything advertised and is saying that the product is capable of more than it is.
The OP does not explicitly say that the maps will work with any other car, but he is clearly trying to sell it as such. The 250 hp is just a plain lie.
02-11-2010, 09:35 AM
#109
Registered
iTrader: (1)
Join Date: Oct 2007
Location: Fort Worth, Texas
Posts: 1,691
Likes: 0
Received 0 Likes
on
0 Posts
"When a copyright holder chooses to sell a copy of his work, however, he “exhaust[s] his exclusive statutory right to control its distribution.”
The court has made clear that even though its in the license that it goes against the law of copyright.
As I've said before EULA's are notoriously (historically) unenforcable. You can put whatever you want in a EULA but you can not take away another persons rights.
02-11-2010, 09:59 AM
#110
Here's where some things are being confused;
1)There is a difference between the hardware and the intellectual property which created the Calibrations in the first place.
2) It is impossible to use MM's Calibrations on another car simply through passing the AP onto which it/they are loaded to another party. Am I understanding that properly, MazdaManiac?
3) There is probably no case precedence that will illuminate this concept for us....... yet.
4) Because of this, the industry's varying points of view will have to define and refine themselves, get to discussing them amongst ourselves (which will happen amongst those who actually DO the tuning/Calibration services and retail their products and services), and where conflicts exist the battles and wars will be waged. The industry has not had to get to that point yet because each "tuner" has their own perspectives and ways in which they do things that has kept the conflict to a minimum.
5) As such, the legal system will not define for the "tuning" industry what can/should be done. The industry will define the arguments, present them in court, and let the adjudication begin.
When.....?
1)There is a difference between the hardware and the intellectual property which created the Calibrations in the first place.
2) It is impossible to use MM's Calibrations on another car simply through passing the AP onto which it/they are loaded to another party. Am I understanding that properly, MazdaManiac?
3) There is probably no case precedence that will illuminate this concept for us....... yet.
4) Because of this, the industry's varying points of view will have to define and refine themselves, get to discussing them amongst ourselves (which will happen amongst those who actually DO the tuning/Calibration services and retail their products and services), and where conflicts exist the battles and wars will be waged. The industry has not had to get to that point yet because each "tuner" has their own perspectives and ways in which they do things that has kept the conflict to a minimum.
5) As such, the legal system will not define for the "tuning" industry what can/should be done. The industry will define the arguments, present them in court, and let the adjudication begin.
When.....?
02-11-2010, 09:59 AM
#111
[[Oops! CRH got a post in the middle there. This is for RC.]]
1) Clearly, you don't have a full grasp on what you are asserting
2) You lost the "argument" the instant you decided that ad hominem was a tactic
3) Regardless of the outcome of this discourse, I've already had the efficacy of my contract tested with a positive result. So, it doesn't matter.
1) Clearly, you don't have a full grasp on what you are asserting
2) You lost the "argument" the instant you decided that ad hominem was a tactic
3) Regardless of the outcome of this discourse, I've already had the efficacy of my contract tested with a positive result. So, it doesn't matter.
02-11-2010, 10:07 AM
#112
Registered
iTrader: (1)
Join Date: Oct 2007
Location: Fort Worth, Texas
Posts: 1,691
Likes: 0
Received 0 Likes
on
0 Posts
[[Oops! CRH got a post in the middle there. This is for RC.]]
1) Clearly, you don't have a full grasp on what you are asserting
2) You lost the "argument" the instant you decided that ad hominem was a tactic
3) Regardless of the outcome of this discourse, I've already had the efficacy of my contract tested with a positive result. So, it doesn't matter.
1) Clearly, you don't have a full grasp on what you are asserting
2) You lost the "argument" the instant you decided that ad hominem was a tactic
3) Regardless of the outcome of this discourse, I've already had the efficacy of my contract tested with a positive result. So, it doesn't matter.
2. Then the same goes for you. I dont attack people unless I am attacked myself. Thing of it as internet based self defense.
3. Well then please tell me the case so I can look it up and see what the judge said, otherwise you've proven nothing.
Edit
PS, just because I used an ad hominem tactic does not mean I lost anything other than perhaps respect. You still have yet to disprove anything else I've said.
Last edited by Riley Craven; 02-11-2010 at 10:11 AM.
02-11-2010, 10:10 AM
#113
I have no responsibility to enlighten you. I couldn't possibly care less what you know or think.
Try being a bit more responsible autodidact.
I didn't call you stupid. I just said you are incorrect. If you feel being wrong makes you stupid, then you have a long road to walk.
The contract has proven itself.
Try being a bit more responsible autodidact.
I didn't call you stupid. I just said you are incorrect. If you feel being wrong makes you stupid, then you have a long road to walk.
The contract has proven itself.
02-11-2010, 10:37 AM
#115
Registered
iTrader: (1)
Join Date: Oct 2007
Location: Fort Worth, Texas
Posts: 1,691
Likes: 0
Received 0 Likes
on
0 Posts
You do if you want to prove I am incorrect.
The feeling is mutual
Responsible? That's rich coming from somone trying to argue points without actually providing evidence to back them up. Further, the fact that you are using autodidact as a derogatory term is further evidence that you were attacking me.
Being wrong does not make somone stupid, it makes them wrong, but that is not what you were saying.
Unlike you.
The feeling is mutual
Responsible? That's rich coming from somone trying to argue points without actually providing evidence to back them up. Further, the fact that you are using autodidact as a derogatory term is further evidence that you were attacking me.
Unlike you.
02-11-2010, 12:35 PM
#116
I think you might be too invested in your dogma to see what is going on here.
I'm not arguing with you. The license to which I contractually obligate my customers has already proven itself. I'm just pointing it out.
I don't need some other case law or whatever. Its already a done deal, as they say.
It got "tested" very early on and the results were satisfying.
You know the Roosevelt quote about speaking softly? Well, the calibrations are their own big stick.
I'm not arguing with you. The license to which I contractually obligate my customers has already proven itself. I'm just pointing it out.
I don't need some other case law or whatever. Its already a done deal, as they say.
It got "tested" very early on and the results were satisfying.
You know the Roosevelt quote about speaking softly? Well, the calibrations are their own big stick.
02-11-2010, 01:02 PM
#117
http://www.citizen.org/documents/vernororder.pdf
Page 6, line 8
The Judgment states that since the software was sold to the individual without stipulations comparable of a license or lease (The product is intended for permanent use with no 'renewal' or reestablishment of the licensing contract required for continued / permanent use of the product), that the licensing agreement doesn't hold because it falls under the First Sale Doctrine due to the fact that the product itself is a purchased product.
contract or not, and it's validity do not apply to this situation. You cannot claim copyright violation in this sale. You can however claim breach of contract if such provisions exist in a / the contract itself. However, after looking at the website, I would have to dispute the contract on the basis that it's not presented to me before the sale of the service. There is no link to the contract on the main page, access port page, or after clicking the "Buy Now" button before you are routed to a check out.
If you're basing your security solely on a copyright notice, then you're effectively giving up some of your standing. All you're stating is that they can't copy or sell copies of your original work.
You should be making them agree to a contractual code of conduct before purchase of your services dictating the use of specific AP files you create for the purpose of tuning their cars under your service. This could specify that no resale or even gifting of the product is allowed, and that when finished, all files must be returned or destroyed. Then you could sue on breach of contract. The judge stated in the above case that the seller had the right to dictate rules to how the first sale owner could use the product, but only under the guise of a licensed product, which the product was deemed to not be since there was a single money transaction with permanent ownership imbued.
To make a long story short...
Make everyone sign a contract upfront, and reserve your copyright for your program that generates the AP compatible files, and your own personal branding. If someone duplicates your core program, or even tries to sell multiple copies of your software or it's files, then you have a copyright case, but not if they're selling their only copy.
DMCA
If he wants to sell your files, he can, but he no longer has rights to them without purchasing more files from you. In other words, you always have to be paid for the first sale / generation of the files. What happens to them after that is up to the buyer if not otherwise previously agreed upon before purchase of the product (contract prior to sale).
I cant sell you tires, spend my time to put them on your rims, then tell you before I put them on your car "BTW, here's your contract... you can't rotate these tires or you're breaking the contract and I am void of any maintenance agreement." By that time, I'm owed for labor in stripping your old tire, putting the tire on the rim, and balancing it. So, if you refuse the contract after purchase, you still owe me the time involved in stripping your old tire, mounting the new ones, balancing the new ones, stripping the now ones, reinstalling the old tires, re-balancing the old ones, and putting them back on your car, but I cant charge you for this time or it would be extortion. So I'm betting on you just signing it anyway or taking a huge loss in labor hours.
Point is, you have to be upfront with your obligations and expectations for your services, and what you expect from your customers and what your customers can expect from you. Otherwise it can appear as extortion (not saying that you would ever extort from someone as I personally like BHR, and those they associate with) when presented with a contract after the fact if you demand money for a return. However, if you do not demand money for a return then you lost even more money in labor hours.
It's just easier to just handle it upfront. That's all I'm saying about it.
Page 6, line 8
The Judgment states that since the software was sold to the individual without stipulations comparable of a license or lease (The product is intended for permanent use with no 'renewal' or reestablishment of the licensing contract required for continued / permanent use of the product), that the licensing agreement doesn't hold because it falls under the First Sale Doctrine due to the fact that the product itself is a purchased product.
contract or not, and it's validity do not apply to this situation. You cannot claim copyright violation in this sale. You can however claim breach of contract if such provisions exist in a / the contract itself. However, after looking at the website, I would have to dispute the contract on the basis that it's not presented to me before the sale of the service. There is no link to the contract on the main page, access port page, or after clicking the "Buy Now" button before you are routed to a check out.
My base calibrations are not locked. But they do contain a copyright notice that you must accept when you install the file and press the "OK" button.
You should be making them agree to a contractual code of conduct before purchase of your services dictating the use of specific AP files you create for the purpose of tuning their cars under your service. This could specify that no resale or even gifting of the product is allowed, and that when finished, all files must be returned or destroyed. Then you could sue on breach of contract. The judge stated in the above case that the seller had the right to dictate rules to how the first sale owner could use the product, but only under the guise of a licensed product, which the product was deemed to not be since there was a single money transaction with permanent ownership imbued.
To make a long story short...
Make everyone sign a contract upfront, and reserve your copyright for your program that generates the AP compatible files, and your own personal branding. If someone duplicates your core program, or even tries to sell multiple copies of your software or it's files, then you have a copyright case, but not if they're selling their only copy.
DMCA
Notwithstanding the provisions of section 106(3) [17 USCS § 106(3)], the
owner of a particular copy or phonorecord lawfully made under this title, or
any person authorized by such owner, is entitled, without the authority of
the copyright owner, to sell or otherwise dispose of the possession of that
copy or phonorecord.
owner of a particular copy or phonorecord lawfully made under this title, or
any person authorized by such owner, is entitled, without the authority of
the copyright owner, to sell or otherwise dispose of the possession of that
copy or phonorecord.
I cant sell you tires, spend my time to put them on your rims, then tell you before I put them on your car "BTW, here's your contract... you can't rotate these tires or you're breaking the contract and I am void of any maintenance agreement." By that time, I'm owed for labor in stripping your old tire, putting the tire on the rim, and balancing it. So, if you refuse the contract after purchase, you still owe me the time involved in stripping your old tire, mounting the new ones, balancing the new ones, stripping the now ones, reinstalling the old tires, re-balancing the old ones, and putting them back on your car, but I cant charge you for this time or it would be extortion. So I'm betting on you just signing it anyway or taking a huge loss in labor hours.
Point is, you have to be upfront with your obligations and expectations for your services, and what you expect from your customers and what your customers can expect from you. Otherwise it can appear as extortion (not saying that you would ever extort from someone as I personally like BHR, and those they associate with) when presented with a contract after the fact if you demand money for a return. However, if you do not demand money for a return then you lost even more money in labor hours.
It's just easier to just handle it upfront. That's all I'm saying about it.
02-11-2010, 01:26 PM
#118
Registered
iTrader: (1)
Join Date: Oct 2007
Location: Fort Worth, Texas
Posts: 1,691
Likes: 0
Received 0 Likes
on
0 Posts
If this is true, what is the harm in directing us to the case?
02-11-2010, 02:01 PM
#119
One thing I think is being overlooked is that many, if not all of MM's maps are not even sold, they are a free service licensed to the original purchaser for their use only. Maybe if someone paid only for the calibration service,your arguement might work. Even then the calibrations are only licensed to the original buyer and as it's been said unable to be used on another vehicle.
02-11-2010, 02:03 PM
#120
I can think of a couple of reasons why he might not be directing us to the case, other than his personal unwillingness.
1) settled out of court
2) confidentiality.
I realize it should be a public record, but it could involve someone on the forums etc if it is pertaining to the AP contract. He could be holding back out of respect for the other involved party.
1) settled out of court
2) confidentiality.
I realize it should be a public record, but it could involve someone on the forums etc if it is pertaining to the AP contract. He could be holding back out of respect for the other involved party.
02-11-2010, 02:13 PM
#121
Registered
iTrader: (1)
Join Date: Oct 2007
Location: Fort Worth, Texas
Posts: 1,691
Likes: 0
Received 0 Likes
on
0 Posts
I can think of a couple of reasons why he might not be directing us to the case, other than his personal unwillingness.
1) settled out of court
2) confidentiality.
I realize it should be a public record, but it could involve someone on the forums etc if it is pertaining to the AP contract. He could be holding back out of respect for the other involved party.
1) settled out of court
2) confidentiality.
I realize it should be a public record, but it could involve someone on the forums etc if it is pertaining to the AP contract. He could be holding back out of respect for the other involved party.
02-11-2010, 02:31 PM
#122
Administrator
iTrader: (7)
MM: you're a paying vendor (BHR) so why not just report the post and have the Admins change the title / post.
I'm sure the Admins / IB don't want upset vendors on here.
I'm sure the Admins / IB don't want upset vendors on here.
02-11-2010, 03:02 PM
#125
Riley Craven,
It's pretty much time to give it up...
The only way to settle this is for you to buy and sell MM's maps, then let MM sue you... lol
Then you can let the court decide, but until then, it's just banter and means absolutely nothing.
bose,
That's debatable as a judge would have to decide if the derivative maps (the product of a paid service) were considered as a license-able object, or as a purchased product. Much like the case I posted regarding AutoDesk. They claimed that their products were simply licensed, but the judge ruled that they were purchased due to the fact that they were intended to be kept forever by the purchaser with no intent of return or or further license renewals. So in that light, one could argue that the maps are my property because they are intended for the indefinite use by me on my car once I pay for his tuning service, and if that is the case, then I'm entitled to resell them under the First Sale Doctrine.
Regardless, it's a risk you'd have to take. You'd have to ask yourself if its worth being sued to prove you're right.
It's pretty much time to give it up...
The only way to settle this is for you to buy and sell MM's maps, then let MM sue you... lol
Then you can let the court decide, but until then, it's just banter and means absolutely nothing.
bose,
That's debatable as a judge would have to decide if the derivative maps (the product of a paid service) were considered as a license-able object, or as a purchased product. Much like the case I posted regarding AutoDesk. They claimed that their products were simply licensed, but the judge ruled that they were purchased due to the fact that they were intended to be kept forever by the purchaser with no intent of return or or further license renewals. So in that light, one could argue that the maps are my property because they are intended for the indefinite use by me on my car once I pay for his tuning service, and if that is the case, then I'm entitled to resell them under the First Sale Doctrine.
Regardless, it's a risk you'd have to take. You'd have to ask yourself if its worth being sued to prove you're right.
Last edited by reddozen; 02-11-2010 at 03:12 PM.