Quick question

[G-ERTI]

Just checking something about selling on aircraft. When I posted something on this topic at X-Plane org they got very annoyed and went into panick mode moderating me etc. telling me I was a software pirate.

But my question is, and this does not apply to any x-aviation planes because I think they are all brilliant, but are you allowed to sell on aircraft if you adhere to the rules of selling second hand software? Eg you delete all the concerned files on your hard drive once you have sold it.

I did check and check again and in the EU you can sell second hand software, I told this to Nicolas and he still said it was illegal. I then asked him to offer a reason as to why he thought it would be illegal he failed to do so. I likened it to selling a second hand copy of XPX on eBay, that is certainly legal or a lot of people would be in trouble. He still just went for a weak line of argument just stating it was illegal and gave no basis of evidence... Therefore can someone please offer me a good LEGAL reason as to why it should or should not be allowed . Personally I believe the reason behind his saying it was illegal, to be a frightened tantrum rather than an actual legal objection with any kind of solid basis. The end came when I posted my findings to try to alert other org users to Nicolas being so rude and untruthful, it was of course deleted but that was to be expected. Poor customer treatment from the org all round...

I really hope this does not upset the Mods here as well, as I know X Pilot to be a truthful place where the Mods want what is best for their members and not themselves. Any answers are appreciated. Finally I would just like to say I was really annoyed at Nicolas for being so rude torwards me as I have spent well over $200 at his store! Thank God good and truthful websites such as X-Pilot exist and we are not left with tyrannical oppressive forums such as the org who do not value their customers! Viva X-Pilot and their belief in the customer actually being worth something!

[sqrt(-1)]

First thing I would check is the EULA of any of the software in question.  The fear on the part of the original author of the software is that the software could theoretically be sold "second hand" multiple times thereby costing the original developer revenue.  I'm not suggesting that it is what you might be doing, but that is an issue very difficult to verify.  Unfortunately, one's word is often not enough.

 

For the most definitive answer, the thing to do is to take this issue up with the developers of the software, not the distributor.

[G-ERTI]

But technically it is legal if you play by the rules? As I would of course do.

Edited June 8, 2014 by G-ERTI

[sqrt(-1)]

Like I said, take it up with the developers as they 'technically' still own the software.  You only bought a license to use it.

Edited June 8, 2014 by sqrt(-1)

[G-ERTI]

I thought you bought a license to own 1 copy and with that you can do as you wish? I might be wrong there though...

[sqrt(-1)]

You bought a license to use, not own.

 

(That's why it's a EULA, as in End User's License Agreement.)

Edited June 8, 2014 by sqrt(-1)

[G-ERTI]

Just looking at the FF copyright, there does not appear to be anything concerning and end user agreement only copyright. As far as I know I was never asked anything or asked to agree to anything concerning a EULA. Thank you very much for your replies, you have been very helpful. Although considering the copyright does not seem to address the issue of EULA I still cannot see any issues with selling that particular software.

[sqrt(-1)]

You still don't get it...

 

From the same question you asked on the Org forum, it appears you wish to sell your license of the FF 757.

 

Send an email directly to Ramzzess or Philipp.  Their response, not your opinion, is the only one that will matter.

Edited June 8, 2014 by sqrt(-1)

[G-ERTI]

Thanks again for your replies, I would like to but my messenger on the org does not work, I will try to find another way.

[hobofat]

You are asking a legal question that only an attorney in your jurisdiction would be able to answer. An EULA is a contract between you and the author of the software you are licensing, and your use of the software is basically your agreement to uphold the contract.  Most EULA prohibit re-sell, although I have not read Flight Factor's EULA as I do not own the software. Some jurisdictions (in Europe, for example) refuse to enforce these provisions. In others, however, they are a valid binding contract and you would be in the wrong to re-sell the software.

 

My personal feeling is that within the flight simulator community you are playing with fire. Just chalk up your dissatisfaction with the software as a loss and move on.

[G-ERTI]

Please, I do not think of it as a loss at all, in fact it has been very useful as I have learnt a lot about that aircraft. But now I need money for a PPL and if selling a 757 simulation is a way to achieve that whilst also allowing someone else to have the joy of flying it, I cannot see why people would mind. Especially considering the main aim of a flight sim is to make flying a possibility. Thanks for your reply, I will look into it further, as yet I have not found an EULA relating to FF products.

[sqrt(-1)]

Thanks again for your replies, I would like to but my messenger on the org does not work, I will try to find another way.

 

FF's email address is given in the Manual and Operations Manual in the DOCs directory of the aircraft.

 

For future reference, EULA'a are often agreed to implicitly by your use of the licensed software.

 

You'll get the info you need from FF.

Edited June 8, 2014 by sqrt(-1)

[Leen de Jager]

In Europe selling second hand-software (originally legal obtained) is 100% legal.

This sounds odd, nevertheless its a fact.

A tipical example of how things go in Europe, act first and think later.

In Europe there are several companies specialized in selling second hand software.
The European Supreme Court declared these transactions NOT to be illegal.

They even go a step further, whenever a EULA says its not permitted to sell the software in the second hand circuit , this EULA itself is illegal at this point.
So even people who agreed with the EULA during the install of the software are allowed to sell the software ( illegal restrictions do not count in European-court)
200 meters from my home there is a shop (big shop) selling second hand games.
Even BOL.com ( biggest internet-shop in the Netherlands) is selling second hand games and other used-software.

MIND!!!!!! I am just talking about Europe.

 

www.computerweekly.com/opinion/EU-court-legalises-second-hand-software

Edited June 10, 2014 by Leen de Jager

[hobofat]

this EULA itself is illegal

 

Mind however that only the provision prohibiting re-sell is unenforceable. The entire EULA is not void.

[Leen de Jager]

Yes you are right there, 

Thats why I wrote  ;  this EULA itself is illegal at this point.

 

You must have been typing your reaction while I added  "at this point"

 

A am not a lawyer, nor native english speaking , most informative is the linked article itself.

 

 

In addition to the purchase of the licence and product itself, existing contractual obligations transfer legally from seller to buyer. This includes maintenance and upgrade contracts that still recognise and uphold the licence in question.

 

This means when re-selled software needs to be activated via the internet after being installed on the new-licence-holders-computer ( various add-ons need such a registration even periodically) the initial vendor must cooperate and has to register the new user enabeling him to use the software AND provide him with updates the same way he does with first hand users.

Things get really complicated at this stage.

 

Vendors from outside europe might refuse to co-operate ( they are not operating under european law) vendors from inside Europe can be forced to follow the european rules.

This brings us to an interesting phenomena .

IF you buy a licensce and you want to sell it  ( after a period of use, or not  )  on the second-hand-maket in Europe , just buy it at an european vendor.

Developers-vendors who do not like the idea of being sold on the second hand market ( and being forced to re-activation, service and maintenance), they should just not use european resellers.

 

No need to say, on-line activating is a good way to keep things a bit in hand.( at least outside Europe)

Just providing the customer with a zip file without any need to activations is quiet normal and the same time madness.

 

In my opinion giving the second-hand-software-market the green light is madness too.

 

BUT thats not the question here, the question here is, is selling used software legal.

For the European Community the answer is YES.

Edited June 10, 2014 by Leen de Jager

[hobofat]

You must have been typing your reaction while I added  "at this point"

 

I simply misinterpreted "at this point"! Your post is very informative, I just wanted to clarify the point. Contracts can be very tricky!

[Cameron]

IF you buy a licensce and you want to sell it  ( after a period of use, or not  )  on the second-hand-maket in Europe , just buy it at an european vendor.
Developers-vendors who do not like the idea of being sold on the second hand market ( and being forced to re-activation, service and maintenance), they should just not use european resellers.

 

Which brings us to the final point that X-Plane.org is actually a vendor located in the USA. They are controlling and distributing the license, as well as have the publishing rights to the products in question, so I think the answer is rather simple here. Nicolas said no to transferring the license, and that's what stands. He does not have to comply with the EU law if he chooses not to.

[Leen de Jager]

You are right ,on the other hand , the moment european law gives  re-selling of software the green light, things get interpreted differently in Europe.

Fact  stays ,selling second hand software will not be punished in Europe, no matter where the software comes from.

On line registration is the key-word here.

There is even a chance European vendors will be forced to neglect the EULAS and give service to second hand software following the european rules., or even forbid selling products having EULAS like these.

A simple example is the rule about warranty there is more warranty on American cars in Europe.

On my Yamaha receiver there is more warranty in the Netherlands than in Japan.

You might say thats madness , I hope you are right, the same time I am doubtfull.

 

These European developments with second-hand-software-sales are dangerous.

Edited June 10, 2014 by Leen de Jager

[Cameron]

There is even a chance European vendors will be forced to neglect the EULAS and give service to second hand software.

 

I'm sure that's where it's headed, but again, it cannot be applied to software published or distributed from the USA. It's especially true if the product has some form of a license/activation scheme, which in this case it does, so if a user wishes to even sell their software they still need compliance from someone in the USA...and we both know how that will likely turn out.

[G-ERTI]

Thank you everyone for looking into this. I really appreciate the time you have put in. My conclusion after doing a little more research myself is that the EULA no matter where it came from cannot be applied in the EU as by selling it in the country where it is legal to sell second hand software I am not breaking any laws. Therefore even Nicolas in his ivory tower of power has no jurisdiction over my selling on second hand aircraft. He cannot do anything beyond banning on his forum... I have also tried to find some examples of it online and I found one guy on eBay selling a load stuff for x-plane. The FF757 and a load of Carenado stuff included. I snatched myself a Carenado for £8! Brilliant. So I think I will follow that example and sell my 757 on eBay. My only reason is that it is not illegal and although it may not please say Nicolas. His sentiments are not my concern as I will not have broken the law.

The point that Nicolas does not have to comply with EU law can be equally applied in the other direction, I do not have to comply with US laws. He cannot stop me and he does not know what my account at his store is. Secondly if he was to deactivate my account at the org store, which incidentally uses a different email to my forum email (good luck finding it Nicolas), he would certainly be breaking the law in any country as he would be depriving me of the products I have purchased.

Edited June 10, 2014 by G-ERTI

[ointment]

Thank you everyone for looking into this. I really appreciate the time you have put in. My conclusion after doing a little more research myself is that the EULA no matter where it came from cannot be applied in the EU as by selling it in the country where it is legal to sell second hand software I am not breaking any laws. Therefore even Nicolas in his ivory tower of power has no jurisdiction over my selling on second hand aircraft. He cannot do anything beyond banning on his forum... I have also tried to find some examples of it online and I found one guy on eBay selling a load stuff for x-plane. The FF757 and a load of Carenado stuff included. I snatched myself a Carenado for £8! Brilliant. So I think I will follow that example and sell my 757 on eBay. My only reason is that it is not illegal and although it may not please say Nicolas. His sentiments are not my concern as I will not have broken the law.

You have totally missed the points that have been made.  You are wrong, but you keep twisting and turning to justify your actions.  I'm afraid no matter what anyone says, you will disregard the law and do whatever you please.  Just because someone else is doing it does not make it legal.  Banks are robbed every day, but that doesn't make it okay for you to go rob a bank.  You have been told by several people in this thread that you are breaking US law by reselling your software.  End of story.  Whether it is Nicolas from the org or Cameron from X-Aviation or the developer of the software, if they do not give you permission to resell the software, you are breaking the law.

 

As for the Carenado purchase you just made, you, along with the individual who sold it, have violated copyright law.  Here's what the copyright states:

 

"All the material contained in this pack is exclusive copyright of

Carenado and no part of any of the models contained in this package, or any other files

within, in part or in whole, may be copied, re-distributed, disassembled, re-packaged or

in any way be exploited for any commercial purpose without the express permission of

Carenado."

 

 

 

The point that Nicolas does not have to comply with EU law can be equally applied in the other direction, I do not have to comply with US laws. He cannot stop me and he does not know what my account at his store is. Secondly if he was to deactivate my account at the org store, which incidentally uses a different email to my forum email (good luck finding it Nicolas), he would certainly be breaking the law in any country as he would be depriving me of the products I have purchased.

Your logic is flawed.  You have purchased a US product online.  By doing so, you have agreed to abide my the copyrights under which the product was produced and provided.  Just because you live in a different country does not mean you are free to disregard copyright law.  As for your org account, Nicolas has already supplied you with the product so how can you think he could deprive you of the product which you already have in your possession?  He would not be breaking any law by refusing to do business with you.  In fact, I wouldn't blame him at all for doing so.  If you think he doesn't know who you are or what your e-mail addresses and IP address are, you are certainly mistaken.

[sqrt(-1)]

Ointment, you're wasting your time.  He had his mind made up from the very beginning.

 

Besides, by his own admission, he needs the money to get a real pilot's license.  Selling the FF 757 might likely pay for a half-hour of instruction.

[ointment]

Ointment, you're wasting your time.  He had his mind made up from the very beginning.

 

Besides, by his own admission, he needs the money to get a real pilot's license.  Selling the FF 757 might likely pay for a half-hour of instruction.

I'm sure you're right.  Half an hour of instruction?  Maybe 15 minutes.  

 

In his heart he knows he's wrong.  That's why he asked in the first place and continues to twist things until they look right in his head.

 

But you're right.  He disregards those who don't agree with his logic and he will do what he wants.

[G-ERTI]

I completely agree with you about the bank thing etc. However, I am not a US citizen, nor am I residing in the US. Therefore the laws of the US do not apply to me when I am not in the US. I am sorry but no matter what you say US law does not apply to me, I am sorry if you think I am trying to twist evidence. But all the evidence applying to EUROPEAN laws are in my favour. It is only US law that goes against European law.

As Leen said that EULA in Carenados copyright does not apply in the EU and it is actually illegal for a company to put that in its copyright in the EU. Nicolas sold it to a European market, he does not have to sell to it. My address on his website is within Europe, I have not lied. If he wants to sell in Europe, he has to play by the EU rules, as I am buying it in the EU I do not have play by US rules.

As for your logic with a US product, an IPOD is a US product but under my use of it in the EU, EU laws apply to it not US laws. So I think you are the one with logic flaws. By depriving me of the product I have paid for I did not make myself clear, but I meant updates associated with the purchase of the product. I am sorry you think I am trying to play this to my advantage, but I will play by the laws of where I live, not your country.

[sqrt(-1)]

You still talking?