# Dispute with Macspeech



## nxnw (Dec 22, 2002)

I bought a copy of iListen from another ehmacer a few months ago. I have the disk, registration card, the whole deal, but I have not been able to register it, because MacSpeech insists that I need the original vendor to contact them and tell them to register it to me. Well, I have not been able to reach him, and I think macspeech is being extremely unreasonable.

Yesterday, they explained that, back in 2001, a they transferred a license to a guy who had the disk and registration card, but it turned out he had stolen them. This, to me seemed to be a really specious basis to make life difficult for the majority of us non-thieves. Here, without further ado, is the unexpurgated content of today's exchange:


> Allan:
> 
> Here's the problem. Please take a look at a portion of our End User License Agreement:
> 
> ...


And here is my response:


> 1. When people buy a software licence. like most things, they have the expectation that they can resell it if they decide it does not fill their needs. In my view, as a lawyer, a license that you do not see until you have opened the sealed box cannot unilaterally be imposed on customers to deprive them of rights they reasonably expected to have when they lay their money down.
> 
> 2. What law school did YOU go to? It is bad enough that you (or one of your fellow anonymous cowards hiding behind the name "The Macspeech team") imply that I am dishonest, by asserting that I cannot be trusted to have come by my disk, registration card, etc. honestly. Now, you now employ your imagined legal acumen to claim that the guy I bought the software from is dishonest: "The person who ripped you off is not us, but the owner who failed to tell you he does not have the right to transfer the software". No, I think he just did what any reasonable person would expect t have the right to do.
> 
> ...


I am really ticked.


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## ehMax (Feb 17, 2000)

nxnw, I don't think you have a single thing to be upset about with Macspeech. If anything, I'd totally commend Macspeech for taking the time they did to reply to your message. I'm amazed at the lengthy detailed message you got. 

Their license is right there in black and white. You really don't have a leg to stand on for this argument. If anything, I think you're reply to them is rude and full of attitude. 

Just calling a spade a spade my friend.


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## dona83 (Jun 26, 2005)

Wow it's like people aren't allowed to feel upset around here.


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## contoursvt (May 1, 2005)

I hate to say this but I think the problem is not macspeech. I mean why would they have to do anything for you when it comes to license transferring. They didnt write the licensing agreement that came in that box and they directly did not tell you that you can transfer the license. Its an assumption that was made and as you said, the license is in a sealed box so how is one to know...but isnt this then the problem with the manufacturer of the software then? The are the ones that wrote the licensing agreement and sealed it in the box. The software vendor is only going by what the licensing agreement says to protect themselves. 

I'm no lawyer or businessman but it doesnt seem logical to expect a software vendor to do what you're asking them to do. I think you need to contact the manufacturer of the software to fix this... my opinion...


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## contoursvt (May 1, 2005)

PS.. You can be upset but your reasons for being upset is not Macspeech's fault so you're not going to get sympathy from anyone


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## MannyP Design (Jun 8, 2000)

I agree... it's absolutely retarded for companies to have the licence agreement only visible until a user attempts to install the software -- and what's worse is that most stores won't offer a refund on software where the box has been opened (not that it's applicable in this case.) Obviously this is a case of companies trying to get a cash grab... there are those who offer transferability with(out) additional costs.

There had been some talk several years ago where people were getting pissed at software vendors for not making the EULA clearly stated prior to the purchase of their product and retailers not honoring refunds on opened software. Not much has changed with respects to consumers' rights... thank piracy and greed for that.


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## simon (Nov 2, 2002)

You have to wonder why these software companies complain about rampant piracy when they are no better themselves on how they treat their own customers.

There should be a big label (like the ones the stick on cigarette packages): 

WARNING! You are purchasing the right to use this software only! You may not sell, give, transfer, disclose or otherwise redistribute the software to a third party without our express permission in advance. If you break the software seal and discover the software is buggy, doesn't do as promised, or is basically a piece of sh!t, sorry for your luck - it's not our fault as you have no rights.


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## nxnw (Dec 22, 2002)

contoursvt said:


> ...why would they have to do anything for you when it comes to license transferring. They didnt write the licensing agreement that came in that box and they directly did not tell you that you can transfer the license. Its an assumption that was made and as you said, the license is in a sealed box so how is one to know...but isnt this then the problem with the manufacturer of the software then? ...
> 
> I'm no lawyer or businessman but it doesnt seem logical to expect a software vendor to do what you're asking them to do. I think you need to contact the manufacturer of the software to fix this... my opinion...


MacSpeech IS the manufacturer.


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## darkscot (Nov 13, 2003)

totally agree with you nxnw! very valid and logical argument you made with them and as simon says (no pun intended) a disclaimer should be on the box, with exactly that message


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## ehMax (Feb 17, 2000)

Its not "us" against "them", the evil software manufacturers.  They are people just like you and me, trying to make a living. If you're ever at a Macworld, you can go right up to Macspeech's booth and talk to the people. They are very nice, just trying to make a living. 

Macspeech are not giving anyone a hard time for buying a used copy of their software and using it. I don't think its reasonable to expect all the rights of ownership from the company when buying used. 

Manny, if you do some design work for a client, you probably have set guidelines of what they can do with your work. What if you did an illustration for company A. Then company A sells your illustration to company B. Then company B calls you, wanting a copy of the contract so they can use the illustration. 

Perhaps you would even go along with this, but would it be unreasonable for you to want to contact company A to make sure they did indeed sell the illustration?


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## ehMax (Feb 17, 2000)

I don't agree... 

Before you buy software, you can read reviews, ask friends, check web forums, download trial versions etc... 

If you want to read a End User License agreement before even cracking the shrinkwrap, just look on the companies web site, and in a rare case they don't list it there, send them an email.


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## MannyP Design (Jun 8, 2000)

In the instance of my work, the client pays for complete ownership of any and all works I create. However, this does not entitle them to the original work files... which they would never be able to get without additional costs.

When I sit down with a client I outline everything they are entitled to (and what they own) _before_ I begin any work and explain to them that they are paying for the final product including the files necessary to reprint the project. If they want the "work" files (layered PSD files, or original documents that would necessitate amendments outside of simple text or picture changes) they need to pay extra...

Why?

Because I want the client to come back to _me_ for extensive changes. This, however, doesn't limit them from reusing the existing work (flattened images, etc.) that I have given them, nor does it limit them to transferring the work to another designer (or company, or individual) to do what they will with it.

No client ever enters an agreement with me without knowing what they are paying for and what they are entitled to (and what I am obliged to do.) Any dealings between the client and a "third party" are up to them.

If the client then asks me to send something to the 3rd party: $$$.

If the 3rd party calls me up asking for the files, I kindly ask them to get them directly from the client, or: $$$.

It's kept me happy, and healthy as far as work goes.


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## ehMax (Feb 17, 2000)

Ok... so in the case of MacSpeech, when a 3rd party client called them up, they not only did not ask for $$$, they took the time to explain the agreement with the original client. They were willing to extend the same agreement, all they asked was to confirm the original client did indeed sell the software. 

To me, it appears that Macspeech went out of there way to may someone happy who isn't even a customer of theirs. 

At best, they should be commended. At the very least, they don't deserve a thread that calls them a bad vendor.


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## ehMax (Feb 17, 2000)

For a highly regarded piece of software that only costs $99... why not just purchase it from them if you want a registered version?


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## CubaMark (Feb 16, 2001)

I certainly appreciate your frustration, nxnw, but I sympathize with MacSpeech's position on this. They do seem to be trying, within the limits of their policy, to assist you. And in return, they are called "cowards" and you further insult them with phrases such as 'what law school did YOU go to" and "what BUSINESS school did you go to" - words which certainly do nothing to help your case and only serve to increase the animosity.

Have you exhausted all attempts to find the person from whom you bought the software?

M


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## ArtistSeries (Nov 8, 2004)

« MannyP Design » said:


> In the instance of my work, the client pays for complete ownership of any and all works I create. However, this does not entitle them to the original work files... which they would never be able to get without additional costs.
> 
> When I sit down with a client I outline everything they are entitled to (and what they own) _before_ I begin any work and explain to them that they are paying for the final product including the files necessary to reprint the project. If they want the "work" files (layered PSD files, or original documents that would necessitate amendments outside of simple text or picture changes) they need to pay extra...
> 
> ...


That's one way of doing business but it sounds like you have the client by the short and curlies.
If you had complete confidence in your work, you would not hesitate to give those files, knowing that if the client was truly happy, they would return.


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## Vexel (Jan 30, 2005)

As far as the company knows.. it could be stolen. I tend to agree with ehMax.. they are making a lot of effort to please someone who doesn't actually support the company. (yet)

I think more software companies should do so... last thing I'd want is for someone to be able to use something they stole from me. Be it a robbery.. I think it should be cleared/registered with the company to work. If it's not in your name.. you shouldn't be allowed to use it. Think of how the theft/piracy of software would come to a hault.

You can't use a Visa any other way.. if people would check for ID that is.


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## Vexel (Jan 30, 2005)

ArtistSeries said:


> That's one way of doing business but it sounds like you have the client by the short and curlies.
> If you had complete confidence in your work, you would not hesitate to give those files, knowing that if the client was truly happy, they would return.


False.. once the beef work is done.. how many people would return.. when they can just get adjustments made from a clip art shop? The bulk of the Design/Art is done. I think Manny actually protects the status of designers as should be. This doesn't show any dis-content or lack of confidence in his work.

It would be like KFC giving everyone the recipe for their chicken. Why would people want to go to KFC anymore if they knew they could make it cheaper by themselves at home?


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## ArtistSeries (Nov 8, 2004)

Vexel said:


> False.. once the beef work is done.. how many people would return.. when they can just get adjustments made from a clip art shop? The bulk of the Design/Art is done. I think Manny actually protects the status of designers as should be. This doesn't show any dis-content or lack of confidence in his work.
> 
> It would be like KFC giving everyone the recipe for their chicken. Why would people want to go to KFC anymore if they knew they could make it cheaper by themselves at home?


Vexel we will have to start a new Tread on this one - 
We have great repeat business and always give the "raw" files. 
Why? Because the work we do is technically great, design wise good and we build a relationship with the client.
We often received files from "designers" that have to be completely redone as they look like they were done someone who is just learning. We have to explain basics to the "designers" (please include the fonts you used, no you can't upsample to get 300dpi.....)

Even if I know the KFC recipe, I would return because I don't have the proper equipment to fry chicken like they do or the range of products.... At home maybe less expensive but not as quick or delicious....


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## guytoronto (Jun 25, 2005)

NXNW is in the wrong here. MacSpeech is in the right.

If you want a legitimate piece of software, buy it from a legitimate vendor.

Buying it from a third party who already registered it is just asking for problems.


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## MacGYVER (Apr 15, 2005)

NXNW,

Have you ever bought Windows XP Service Pack 2. Registered it, and then sold the copy to a stranger? Guess what? When you need to call Microsoft up to register that copy again, they will tell you the same thing, or in my opinion freak out actually at you. 

MacSpeech is in the right here, instead of buying their software at FULL price, you got it for probably cheap, and now you want to be able to register it under your name, when it already has a previous owner. This is not only for software, this applies to automobiles as well. If you're a lawyer, then you will already know this and realize where MacSpeech is coming from.


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## thejst (Feb 1, 2005)

This is a great thread- I'm learning lots!


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## nxnw (Dec 22, 2002)

Hello EhMax.

If you believe that there is something illicit about people reselling used software, why do you permit it to be done in your bailiwick? You're criticising me for buying something that was openly sold here, in accordance with your own guidelines (assuming I recall them correctly, you have no problem as long as original disks are included)?

As I noted, I bought it all, original disk, everything and even have an exchange of email respecting the transaction. 

MacSpeech's position on what is legal and illegal, and its characterisation of the guy who sold it to me as having "ripped [me] off", was gratuitiously offensive and arrogant. Moreover, if they have no reason to believe that I stole the software, they should not treat me as if I had.

Your assessment of the legality of the transaction is also, in my opinion, incorrect. Respecting consumer transactions, the law in Ontario is that EVEN WHERE YOU SIGN A STANDARD FORM CONTRACT the business issuing the contract must alert you to provisions in the contract that the typical consumer would not expect. Here, the contract is hidden, sealed in a box (and BTW, it looks like Macspeech did not post its EULA online until after the seller had already bought and resold the software to me). Macspeech is trying to give contractual force to a provision that the consumer could not have seen before he purchased the goods, and would not have expected. It's not enforceable. Good title in the software was passed to me for good money. I own it.


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## guytoronto (Jun 25, 2005)

nxnw said:


> Moreover, if they have no reason to believe that I stole the software, they should not treat me as if I had.


They have no reason to believe you obtained it legally, as it was previously registered to another user, therefore, they should not treat you like a customer.

Dude, at this point, you are really coming off as a first-class jerk, just because you got screwed in the end. Suck it up, eat your humble-pie, and learn from your experience. Your continued rants will not bring your money back, nor will it generate sympathy for your cause.


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## MacGYVER (Apr 15, 2005)

So what you're saying is that you have never bought, sold, installed, had any knowledge, could not foresee the future of any licensing issues when it came to any software purchase either new or used? I find that a little hard to believe.

This purchase you made of and the complaint of a licensing issue is exactly what you can read over at eBay on a daily basis. Thousands of people get caught with licensing issues, but there are now more people asking questions prior to buying used or new software from a non vendor or brick and mortar store. 

The sad thing I find is that you're a lawyer from what I understand? Do you not investigate things or think of things a little more carefully when making buying decisions? Or do you just sign on the dotted line of any given document handed to you? 

The big question here is, why won't the original owner hand over the rights that MacSpeech is asking for? Pretty simple if you ask me, but seems trivial from the original owner not to when they no longer own the software.


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## ehMax (Feb 17, 2000)

nxnw said:


> Hello EhMax.
> 
> If you believe that there is something illicit about people reselling used software, why do you permit it to be done in your bailiwick? You're criticising me for buying something that was openly sold here, in accordance with your own guidelines (assuming I recall them correctly, you have no problem as long as original disks are included)?


From the ehMac user agreement that everyone agrees to when they become a member:



> Software sold in the "Trading Post" must comply with the software's license agreement. Questionable posts will be removed.


The bottom line. You are NOT a customer of MacSpeech. You have not purchased a product from them, and you are expecting a certain level of service from them. They are taking the time to explain their license agreement, even willing to go outside that license agreement to accommodate you. 

As they explained they have been ripped off in the past. Why would they not expect you to be ripping them off. By the nice, friendly tone of your email?

You can make as much noise about it and through around some legalese if you like. Software license agreements have been around for a long time without vendors having to paste the entire agreement on the outside of the box. 

Clearly the original owner of the software voided that license by selling it to you. Its there as clear as day in black and white. Macspeech has absolutely zero responsibility to you to offer you a full license of the product. 

Even still.. they are trying to accommodate you, but your still upset. Whatever...


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## MannyP Design (Jun 8, 2000)

ArtistSeries said:


> That's one way of doing business but it sounds like you have the client by the short and curlies.
> If you had complete confidence in your work, you would not hesitate to give those files, knowing that if the client was truly happy, they would return.


Horse****.

It's actually a way of doing business that most companies do... in fact, they tend to charge INSANE amounts of money for the "layered" or "work" files. The client can do whatever they want with the "print" files. That's what they've paid for. That's all they WANT to pay for. I've yet to meet a client that will pay extra for all the source files... and I won't just give it a way for nothing.

Short and curlies? Ha ha ha! No, if I claimed complete ownership of *all* the files, rather than just the work files, then yes. Clients rarely show any loyalty to designers regardless of the quality -- if they have any "out" to get a cheaper designer, they will. How often would you _give_ clients the .FLA source files to any Flash work with extensive programming? I'd wager none. Why? Because there are "proprietary" coding, or skills that I, you, and a lot of people have that go into our work that people would love to peer into the inner workings and exploit for their own use without acquiring them through study and experience.

Interesting that you would call neophytes who who use Dreamweaver for web development as profiteers, yet in the same breath accuse me retaining clients by holding them by the nutsack. Clearly you're relatively new to the industry... it used to be much more stringent, especially in design industry.

I give my clients options... they choose the cheapest one that suits their needs. I've yet to hear one complaint, so I (and a lot of people I work with) must be doing something right. My prices are very reasonable... much more than I would wager than some. I've seen a company in Toronto (who shall remain nameless for their sake) try to charge a client $1000 for a cheesy 75px x 100px Flash animation of a seashell changing colour. What's worse... the photo of the seashell was stock, which I bought it from GettyImages for under $50, and redid the entire animation, with including the amendment the client needed, for a fraction of the cost the other company wanted.


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## nxnw (Dec 22, 2002)

guytoronto said:


> They have no reason to believe you obtained it legally, as it was previously registered to another user, therefore, they should not treat you like a customer.


Well, I have the disk. I have the blank registration card. I have the email between me and the guy who sold it, negotiating the transaction. I'd say that they have plenty of reason to believe I am the legitimate owner. They know all this, and don't care. In fact, they have taken the contradictory positions that the original owner ripped me off (their words, not mine) but they will protect that person by not transferring the licence.


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## ArtistSeries (Nov 8, 2004)

« MannyP Design » said:


> How often would you _give_ clients the .FLA source files to any Flash work with extensive programming? I'd wager none.


Manny, I'm starting a new Thread... but to answer your question I give the .FLA files everytime. No matter how complex the coding. 



« MannyP Design » said:


> Clearly you're relatively new to the industry... it used to be much more stringent, especially in design industry.


If 10 years + is new to the industry....


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## nxnw (Dec 22, 2002)

> The big question here is, why won't the original owner hand over the rights that MacSpeech is asking for? Pretty simple if you ask me, but seems trivial from the original owner not to when they no longer own the software.


I was unable to reach him by email. In fact, however, I found a phone number in one of the old email messages today, and was able to reach him. He has agreed to send an email to MacSpeech.


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## MannyP Design (Jun 8, 2000)

ArtistSeries said:


> Manny, I'm starting a new Thread... but to answer your question I give the .FLA files everytime. No matter how complex the coding.


And you've never had a client take the files to competitor? 




ArtistSeries said:


> If 10 years + is new to the industry....


Yes, actually, it is considering the web development/multimedia market was on the upswing when you started.


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## nxnw (Dec 22, 2002)

> As they explained they have been ripped off in the past. Why would they not expect you to be ripping them off. By the nice, friendly tone of your email?


The posted email was the culmination of several exchanges. I had offered all kinds of evidence that I had legitimately bought the licence, and they only fell back on the EULA in the face of pretty clear evidence that I was telling the truth.


> You can make as much noise about it and through around some legalese if you like. Software license agreements have been around for a long time without vendors having to paste the entire agreement on the outside of the box.
> 
> Clearly the original owner of the software voided that license by selling it to you. Its there as clear as day in black and white. Macspeech has absolutely zero responsibility to you to offer you a full license of the product.


There is nothing clear about the enforcability of the EULA at all 

1. The "legalese", which I take is intended to derogate my statement of the law in consumer transactions, is sound. I suspect you would agree with the principle behind it if I explained the cases and policy to you. Most people have an uncritical and unwarranted deference to "it's right there in black and white" until they run afoul of some unfair provision in the fine print in their insurance policy or a car rental agreement, and end up with a huge problem. The legal principle I stated is far less abstract and "legalese" to anyone who has had the bad luck to become involved in such a dispute;

2. It alarms me to see people say that the EULA IS the law. Do you really feel that Microsoft, for instance, has the right to impose its will on you, just by printing it on a sheet of paper in a box. It doesn't, and we should all be thankful for that. The EULA is evidence of a contract, but the enforceability of the contract is SUBJECT to the law. Would you have it any other way? What if the EULA said the licence is only valid in the hands of white Protestants? 

3. Here's an example. In NY state, Network Associates was sued when it tried to enforce its EULA to suppress a negative review. The EULA said that users are forbidden from reviewing or benchmarking the product. Network Associates claimed that the review was illegal and the reviewer was breaking the law. Network Associates lost. 

4. As for pasting the EULA outside the box... The reason you now find EULAs posted on vendors' websites is a class action in the US, a couple of years ago, where a woman sued Microsoft, Best Buy and others. She didn't agree with the EULA and tried, unsucessfully, to return the now opened package. The settlement contained a bunch of remedial measures, including:


> "The Settlement Agreement provides to the General Public of California, amongst other things, the right of consumers to return applicable Symantec, Adobe and Microsoft software for full monetary refunds even if the shrink-wrap has been opened ... In addition, Symantec, Adobe, and Microsoft agreed to provide EULAs for the applicable software products on their web site and notices on their respective software packaging of the web addresses to such EULAs so consumers can review such EULAs prior to purchase of the software." CompUSA, Best Buy and Staples "agreed to provide such EULAS to consumers upon request prior to sale of the above software at their retail stores in California and to provide notices to consumers in such stores to effectuate the above."


 The only "legalese" is in the EULA. there will be loads of challenges to these EULAs in the next few years. 

I don't know why your nose seems to be so out of joint on this issue. While my problem may not be a big deal, the EULA issue is huge and serious.


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## contoursvt (May 1, 2005)

Oh then I take everything back. I thought macspeed was a vendor of this software and nothing else. Ok in that case, yes its crazy that the manufacturer of the software is not trying to help out more.

Do you have a bill of sale signed by the other person with their info on it? If you dont have anything signed, then I can understand macspeech's hesitation for transferring anything over. What if they transfer it over and the other guy comes back and say "hey I didnt sell this... where is there a bill of sale to someone else...etc". If you do have a bill of sale then they should be more compliant.


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## chuck.rogers (Jul 22, 2005)

*MacSpeech's Comments...*

Hello everyone.

An alert ehMac! member sent us a message regarding this thread. I thought you might like to hear our side of the story. The person who started this thread shared a portion of our correspondence. We'd like to give you the back story, and let you judge everything with all the facts at hand:

Sometime last November the person who started this thread (who we shall refer to as "NXNW") contacted us saying he was having problems registering. At the time we were converting to a new support system and do not have a complete record of the communication, but we did tell him we were experiencing problems and provided a suggestion for dealing with the situation, since our support staff assumed he was one of our customers.

On July 16th NXNW contacted our support department saying he was still having trouble registering. Not a common problem, but it does happen occasionally. Here is the text from that request:

NXNW: "I am still trying to register this software. I own the disk, manual, 
everything, but I am getting a message that the registration code is 
already in use.

Please help. I bought this months ago, and want to use it already."

Our Support Team assumed alerted our IT department that he was having trouble registering. Our IT department responded he was not the original licensee, and on July 17th we sent the following:

MACSPEECH: "Our IT people discovered the problem. The Activation Code you are registering was already registered to a different person in our database, and we have no record for you in the database.

You should be aware that our End User License Agreement does not allow for more than one person to own the license to the software, or to install iListen on any computer on which the registered user of the software is not also a user on the computer.

So what is happening is that your attempts to register are being rejected because you are not the person who originally registered that Activation Code."

On July 18th, he responded 

NXNW: "I own this package - the license, disk, documentation. I purchased it. The previous record should be deleted.

Please correct your records so that I may register the product."

At this point our Support Team made the assumption he purchased this from an authorized reseller since we could find no record that he purchasing from us. We asked him to fax us his proof of purchase.

Later on July 18th, he replied:

NXNW: "I bought it privately. I reiterate, I have the disk, I have everything. I paid for it and I own it. I don't appreciate this back and forth.

Do you want me to scan the disk to prove I'm not a software pirate?"

The problem with this is that anyone can borrow a friend's copy, take a picture, scan the disk, etc. and claim it as his own. Possession is not proof of ownership, especially when we have someone else registered as the owner. No proof of purchase was ever submitted to us. Here are the subsequent emails:

MACSPEECH: "A scan of the disk is not considered proof of purchase. If you purchased iListen from another individual they must contact us about transferring the license (and supply their proof of purchase)."

NXNW: "I am really offended by your attitude. I resent being treated like a 
crook and consider your attitude toward your customers to be offensive 
and disrespectful. Please pass these emails on to a more senior 
authority to resolve this problem promptly, without inconveniencing and 
offending me further.

When you respond, please furnish your name, so that your objectionable 
comments are not anonymous."

(FYI - NXNW was responded to by numerous people on our support staff, which is why no one name is associated with our side of the thread.)

MACSPEECH: "I'm sorry you find our policies objectionable. Software piracy is a fact of life. By insisting on proof of purchase we protect *both* the customer and ourselves from false claims. There is simply no way for us to validate the integrity of every customer; so all customers are required to supply proof of purchase in such instances."

NXNW: "I want your name, please. Since you are accusing me of dishonesty, it 
is a cowardly and morally bankrupt to hide behind "the macspeech team".

Who are you?"

(I have read and re-read the above exchange. At no point does anyone accuse NXNW of dishonesty. All we are saying is we need a proof of purchase. Lacking that doesn't mean he stole it. It means he can't prove he purchased it - an entirely different matter. The difference is if we accept his word, and it turns out he actually did acquire it dishonestly, it really causes a heck of a problem for both us and the customer whose rights we have a responsibility to protect. 

The exchange continues, on July 18th and 19th:

MACSPEECH: "We have multiple staffers who answer e-mail--hence the team reference. All staffers are obliged to follow company policies.

1) It is company policy to ask ALL customers for proof of purchase in such situations. 

2) Everyone gets treated equally. We are not now , and never have accused you of dishonesty. 

3) We are following a company policy we have been forced to implement to protect both our customers and the company from those individuals who are being dishonest. Once again this does not mean we are accusing you specifically of being dishonest."

NXNW: "I have everything that comes in the box, and I paid for it. If you are 
not accusing me of dishonesty, what are you doing?

If you don't have the authority to correct this problem, please refer 
it to someone who does."

MACSPEECH: "Thanks for your email.

We have an obligation to the customer who registered the software originally. We aren't accusing you of anything. We are simply protecting the rights of the original purchaser. Think of it this way: if you originally purchased iListen from us and all of the sudden you found your software inaccessible because someone else somehow got hold of your Activation Code, you wouldn't be very happy. This policy protects our customers.

There is a very simple resolution: please have the person from whom you purchased the software send us an email that contains the following information:

- the name under which they registered iListen
- the email address they used when they registered
- Your full name
- the email address to which the license should be transfered

Once they do this, we can have our IT team make the appropriate changes in our registration database and you will be able to register and use the software. Once you are in our db, you will enjoy the same privilege: the software will be "locked in" to your name and email address which will insure your continued use, and prevent someone else from using your Activation Code illegally. This policy protects both us and our customers.

We understand your frustration, but please understand that we simply can't transferring a license on the word or the purchaser opens us up to all sorts of problems -- including legal, should we transfer a license when the original owner does not actually approve it.

Once we receive the above information from the original license holder, we will happily make the switch in our records and make you the owner of record of that particular license."

(At this point, our support people have really tried to drive home we are not accusing him of anything and all he has to do is get the original owner of the license to send us an email.)

NXNW: "I'm not asking you to transfer this on my word. I have the disk. I even 
have the registration card with the licence on it. You are not 
protecting anyone. You haven't the slightest reason to doubt that I 
legitimately own the package, and I have more than adequate proof. I 
consider this a deplorable way to treat a customer."

We again tried to explain why our policy is the way it is. I will not relate it here because it adds nothing over what has been said above, and all it does is lead up to the information he posted that started the thread.

Apparently, he has been able to get a hold of the original license holder and we should be getting an email from that person shortly. (It had not arrived as of this writing.) When we receive that email, we will gladly transfer license and all privileges of ownership to NXNW.

At no point did anyone suggest that NXNW had obtained the software dishonestly or illegally. It was brought to his attention the original license holder did violate the license agreement by selling it (which is prohibited under terms of the agreement). But we routinely overlook this as long as the original purchaser requests and approves the transfer. Lacking this, we do not assume a person is dishonest. The original license holder has rights. It is those rights we are protecting.

...continued on next post...


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## chuck.rogers (Jul 22, 2005)

*MacSpeech (conclusion)...*

(continued from previous post)

To summarize:

- NXNW has not once been accused of doing anything dishonest.

- Our license agreement is available on our web site.

- Had NXNW either taken the time to send us an email, we would have gladly told him that all he has to do is have the original licensee send us an email approving the transfer and we would gladly transfer the license to him.

The only unfortunate thing from our stand point is that the phrase "ripped off" was used by NXNW to improperly characterize the original owner. While it was probably a poor choice of words on the part of the support staff member, the intent was to try to demonstrate that his argument was not with MacSpeech, but with the original owner, who was actually contractually obligated not to resell the software.

To be fair, we do not doubt NXNW purchased the software fairly, and that no one intended to deceive anyone else. While ignorance of the law (or our policies, in this case) is no excuse, we understand his frustration. But, as we pointed out several times, and has also been pointed out by others in this forum, NXNW is not, in fact, our customer. He has not spent any money with us, and he asks that we risk alienating someone who did based solely on the fact he can produce proof he has the software in his possession (but not proof the original owner sold it willingly).

We totally understand his position: he bought the software at a discount, got a deal (probably), and wants to be able to use it. We only wish he could understand our position: our customers are our most cherished asset. We cannot accommodate someone who has not spent money with us (either directly or through an authorized reseller) at the expense of those who have. The rights of our EXISTING customers (those currently on record) will always come first.

Sorry for the long post, but now you have the whole story - and a bit of insight into the mind of at least one software developer.

Best Regards,

Chuck Rogers, Chief Evangelist
MacSpeech, Inc.


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## contoursvt (May 1, 2005)

Well that pretty much sets everything straight and makes sense. So if the purchaser of the software had gotten a signed letter from the original person who registered the software saying it was to be transferred, would that have worked or should it be a voice call? I'm assuming they still need to call in...


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## tikibangout (Jul 19, 2005)

One simple solution: buy everything new. I'm always iffy on buying certain things used, especially electronics/computer related items.


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## guytoronto (Jun 25, 2005)

Wow! I don't think MacSpeech could have spelled it out any clearer.

It seems that NXNW doesn't seem to know the difference between possession and ownership.

Hey dude! You're a lawyer! Why don't you know the difference between possession and ownership?

It appears you possess the package, but your don't own the license. What is so complicated about that? I know, you'll go off on some legal tirade (but I HAVE the disks and the registration card!!!), but in the end, it doesn't change a simple fact.

You don't have a clue.


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## darkscot (Nov 13, 2003)

good to see your side of things chuck.rogers aka macspeech. seems nxnw should have been more proactive at getting previous owner removed from your records. maybe more polite, too. i'll remember this next time i purchase used s.w.


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## Phil_MTL (Nov 26, 2004)

*So...*

Can someone now edit the title of this thread? 
It seems the original problem is now resolved.

Chuck are we to understand that your company keeps and archive every interaction with every customer?

With other companies there is usually a warning at the begining of a phone conversation to the effect that it can be monitored for quality control but reposting the entire transcription on the internet seems a little bit far-fetched...


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## nxnw (Dec 22, 2002)

Chuck.Rogers said:


> The only unfortunate thing from our stand point is that the phrase "ripped off" was used by NXNW to improperly characterize the original owner.


Since Mr. Rogers has opened up the discussion, I will also respond publicly.

First, I never said anyone ripped me off. "The MacSpeech Team" used this phrase to characterise the guy who sold me the product. I have quoted "The Macspeech Team's" derogatory reference to my seller in my comments, and objected to it. I would be grateful if Mr. Rogers will edit his thread to correct this.

Aside from MacSpeeches characterization of the guy who sold me the software, I have sought to address any reasonable doubts they might have that I bought the package, they respond with the scenario that one might steal it and try to register it. Sorry, there is an implication there. If they do not intend to question my honesty, they can attempt to solve this problem in good faith. If there is any doubt that I purchased this software, they could work with me to find a solution where they are reasonably satisfied that I really did buy the software rather than steal it or make a photocopy of the disk and documents (the specific scenarios thay have assertedd to justify their position).

For instance, I would be prepared to send in the original registration card, proving that I have not merely made a copy of someone else's card. I could forward the emails between me and the vendor negotiating the transaction. I could even send them an affidavit stating that I genuinely bought it. True, it would still be *possible* that I negotiated the deal, met the guy and robbed him, and he is now suffering from amnesia so he couldn't call the police. Let's be reasonable, however.

The fact is, if they don't have any serious doubt that I am on the level, they should be more cooperative. I am not asking them to do anything but unlock my licence — and it is mine.


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## chuck.rogers (Jul 22, 2005)

Phil_MTL said:


> Can someone now edit the title of this thread?
> It seems the original problem is now resolved.
> 
> Chuck are we to understand that your company keeps and archive every interaction with every customer?
> ...


 The "conversation" posted was entirely through email. We do not record phone conversations. I posted the rest of the story so people on this forum could judge for themselves whether or not we are being fair.


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## chuck.rogers (Jul 22, 2005)

nxnw said:


> Since Mr. Rogers has opened up the discussion, I will also respond publicly.
> 
> First, I never said anyone ripped me off. "The MacSpeech Team" used this phrase to characterise the guy who sold me the product. I have quoted "The Macspeech Team's" derogatory reference to my seller in my comments, and objected to it. I would be grateful if Mr. Rogers will edit his thread to correct this.
> 
> ...


 As I said in my original post, our tech support staffer chose an unfortunate choice of words. He should not have used the term "ripped off." The use was designated to inform that we are only abiding by our policies, but the original purchaser did not, and to encourage the buyer to contact the original license holder - that it was with that person he has a beef, not us.

NXNW, having in your possession a registration card does not prove you are entitled to own the license. It simply means you acquired the software. Since you did not acquire the software from us or an authorized reseller, it means nothing. We cannot verify you simply didn't "find" the package laying around somewhere.

Once again, we are not accusing you of any impropriety. We are protecting the rights of the original purchaser. When that person relinquishes those rights, we will immediately transfer ownership of the license to you, and not a second before. As stated by our support staff, should the original purchaser authorize the transfer of the license, you will then enjoy all the privileges of ownership. Until then, no matter what you have in your possession, all we have is your word. We need the word from our customer, not you. I don't know how I can make it any clearer than that.

Whether we do or don't doubt you is totally beside the point. We have no reason to believe you are anything other than as pure and trustworthy as heaven itself. But that has no bearing on the fact the original owner has not given us permission to transfer the license to you. We are tied by the fact that we will ALWAYS err on the side of our customers, and if that inconveniences those who are not our customers, we are truly sorry - but that is the way it is.


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## nxnw (Dec 22, 2002)

guytoronto said:


> ...It seems that NXNW doesn't seem to know the difference between possession and ownership.
> 
> Hey dude! You're a lawyer! Why don't you know the difference between possession and ownership?
> 
> It appears you possess the package, but your don't own the license. What is so complicated about that? ...


 In fact, I DO know the difference, and I suspect I understand the issues much better than you. 

My possession of the disks is not equivalent to ownership of the licence. It is, however, excellent evidence of it. Further, it is common for people to transfer ownership of something by transferring possession. When you buy something, do you always get a formal bill of sale stating that john Doe herely transfers good title in this can of beans to guytoronto? Maybe you do.

In virtually all cases, however, INCLUDING WHEN YOU BUY SOFTWARE IN A STORE, all you get is a receipt. The receipt is not a bill of sale or assignment of title. It is nothing more than evidence that title was passed with possession. Just like here.


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## chuck.rogers (Jul 22, 2005)

No - not "just like here." When you purchase a piece of software from a store or from the developer, the Activation Code (or serial number, or registration number, etc.) is "virgin." It has not been used by anyone and therefore has not been allocated as proof of ownership of the license to any one individual. Since goods can be passed from one person to another, the unique ID assigned to a customer is a perfectly reasonable way to verify ownership of the license.

The reason this situation is different is because you are asking us to take your word over that of our customer. We have an established relationship with that customer. For the benefit of all our customers, we need to protect that, and we will.

Had you purchased from an authorized dealer or our online store, the Activation Code you received would have been in "virgin" condition, and therefore been uniquely assigned to you.

Something else to consider: once approval is given for transfer from the original owner, suppose he then claims he changed his mind and wants it back? Suppose he even tells us he refunded your money and it is once again his? Guess what? At that point, he will have relinquished his status as a MacSpeech customer and it is you will benefit from this policy. Absolutely no amount of cajoling on his part will induce us to transfer the license back to him unless YOU approve it.

What is astonishing to me personally is that our EULA is very clear (and very accessible) that we don't even allow users to re-sell the software and we have every right to insist that you purchase from us. Yet, we aren't doing that. We ARE overlooking that part of the EULA. We ARE trying to accommodate you, even when we don't have to. Yet you continue to expend inordinate amounts of energy arguing a position you have no possibility of winning, and to which the majority on this forum is apparently overwhelmingly not in your favor. Incredible!

You can think this is a lousy way to treat customers, but our experience with our customers (and indeed, just with those on this forum - most, if not all, of whom are NOT our customers), suggests otherwise.

We will continue to defend our policies and our steadfastness in protecting the rights of our customers as long as you want to continue the dialog, but your energies would really be better spent on getting the original license holder to send us that email so you can begin enjoying your purchase.


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## nxnw (Dec 22, 2002)

chuck.rogers said:


> We have no reason to believe you are anything other than as pure and trustworthy as heaven itself. But that has no bearing on the fact the original owner has not given us permission to transfer the license to you. We are tied by the fact that we will ALWAYS err on the side of our customers, and if that inconveniences those who are not our customers, we are truly sorry - but that is the way it is.


If we are past the red herring of the EULA, the only issue is reasonable proof that the seller intended to transfer the licence to me.

The solution you propose, have him email you, is notable in two ways:
- It is not conclusive proof, one can cook up a phoney email just as easily as one can make a photocopy of a disk;
- It is not within my control to get him to do it.

My sense, therefore, is that MacSpeech is not really after proof — I can give you proof that is as good or better than what you are asking for. You want to discourage the resale of licences by making it difficult. In my opinion, this is contrary to the reasonabble expectation people have when they buy your product, and I do not believe it is legitimate.


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## chuck.rogers (Jul 22, 2005)

NXNW has asked me privately to make it clear that he did not accuse the original licensee of the software as ripping him off. I thought I did that, but here we go again:

A MacSpeech staff member used the phrase "ripped off" in an attempt to illustrate to NXNW that his argument was never with us, but with the original licensee who probably didn't realize his license was not transferrable. Neither the staff member specifically, nor MacSpeech in general intended to imply our original licensee was in any way dishonest, or intended to deceive.

While we totally admit that our staff member first used the phrase "ripped off," my reference to it was in regards to NXNW's mention of it in his post, a portion of which I will re-post here for your convenience:

=============================
"2. What law school did YOU go to? It is bad enough that you (or one of your fellow anonymous cowards hiding behind the name "The Macspeech team") imply that I am dishonest, by asserting that I cannot be trusted to have come by my disk, registration card, etc. honestly. Now, you now employ your imagined legal acumen to claim that the guy I bought the software from is dishonest: "The person who ripped you off is not us, but the owner who failed to tell you he does not have the right to transfer the software". No, I think he just did what any reasonable person would expect t have the right to do.
=============================

NXNW clearly states we are implying the person he bought the software from is dishonest. That was never our intent, and I repeat that it is unfortunate that NXNW took the opportunity to mislead those in this forum into perhaps thinking that it was.

I once again apologize for MacSpeech and our staff member for that unfortunate choice of words. We uttered it first, NXNW repeated it inferring something we did not intend.


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## chuck.rogers (Jul 22, 2005)

NXNW:

Again, you totally miss the point. We gave you the conditions under which the email has to be received at least twice. I'll post it here for the edification of these readers that are so entertained by our discourse:

In order for us to verify the person requesting the transfer is who they says they are, we would need him or her to send us the following information:

- the name under which they registered iListen
- the email address they used when they registered
- Your full name
- the email address to which the license should be transfered

It really doesn't matter what email addressed is used to send this to us - we realize that people do change email addresses over time. In similar situations we have had people give us several email addresses they have used over the years. If any one matches the information in our database, then we will grant the transfer (as long as the other information jives as well).

No, NXNW, we are not discouraging the transfer of licenses. While we are under no obligation to grant such transfers, we routinely do. In fact, the only time we do not grant them is when the person trying to register cannot get the original licensee to authorize it.

We feel that if a person provides the name under which the software was originally registered, the email address used to register it, the name of the individual the license is to be transferred to, as well as that email address. That will be sufficient. We also ask, but usually do not require, other information such as address, phone number, etc. The more information we receive, the faster we can process the request for transfer.

The bottom line is you cannot provide better proof than the permission of the original licensee. Having a car, the owner's manual, and the license plates is not the same as owning the license. What you have purchased is paper and a CD. The license to use was not transferable. WE own the software, not you. Therefore WE grant its use, as well as the terms under which we allow the software to be used. You may own the materials, but the right to use them is an entirely separate matter, and you have not satisfied our extension and exception to our EULA sufficiently for us to grant said right to use.


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## nxnw (Dec 22, 2002)

Hey guytoronto. I've noticed your comments. Each one makes it clearer that your choice of a giant phallic symbol as your icon is no accident.


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## thejst (Feb 1, 2005)

nxnw said:


> Hey guytoronto. I've noticed your comments. Each one makes it clearer that your choice of a giant phallic symbol as your icon is no accident.


I don't see what good it will do you to attack GuyToronto- YOU posted this thread on this public forum and are subject to other points of view as long as they are on topic. And, IMHO- your rant against the company is getting you nowhere. They have clearly explained their procedure for granting their licence to you, which they don't even HAVE to do. YOU ARE NOT THEIR CUSTOMER. THEY ARE NOT BOUND TO SERVICE YOU IN ANY WAY, SHAPE OR FORM. 

Get over it! You are wasting your time.


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## tikibangout (Jul 19, 2005)




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## nxnw (Dec 22, 2002)

Well, I do think the level of discourse has improved.


chuck.rogers said:


> The bottom line is you cannot provide better proof than the permission of the original licensee. Having a car, the owner's manual, and the license plates is not the same as owning the license. What you have purchased is paper and a CD.


No, I purchased a licence. It was conveyed to me by physical possession of the disk and unused registration card. I can provide evidence that would satisfy any reasonable person that ownership of the licence was ttransferred to me, but you don't want to be reasonable.


> The license to use was not transferable. WE own the software, not you. Therefore WE grant its use, as well as the terms under which we allow the software to be used.


Back to the EULA. Yes, you own the software, but I own one licence to use it. Whether you can enforce an unreasonable and unfair provision in a EULA that comes sealed in a box is a question of law. The EULA is not the law, just an arrogant and disreputable effort of many software vendors to strip away the rights of their customers in the fine print.

Only software companies are arrogant enough to tell their customers they can't resell what they bought in good faith for good money. If I buy a can of beans or a car or a computer, will heinz or ford or apple say, "hey, you don't have the right to resell those beans, that car, that computer! There's a piece of paper in the back of the glove compartment that says only you have the right to use it and it cannot be resold. We don't make any money if you resell our prouct to someone else"

EULAs with unfair and oppressive provisions in them are on the way out - like the network associates EULA forbidding prchasers from benchmarking or reviewing their product. Such EULAs reflect badly on the industry and on those who use them. I urge you to change yours to make appropriate provisions for honest resale.


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## thejst (Feb 1, 2005)

"Yes, you own the software, but I own one licence to use it."

Not according to the company, you don't. Until you satisfy their requirements, which they have explained to you, time and again. They really have been quite reasonable- badgering them is clearly not going to get you what you want. You write well, and some of your arguments are valid in the face of 'general' software EULA politics- but I get the impression that the company is trying to do what is right for their customers- of which you (at this time) are not one.


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## tikibangout (Jul 19, 2005)

Ayy, Chuck Rogers will be at my local Apple store tomorrow. I'll have to go and see him.


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## chuck.rogers (Jul 22, 2005)

*No, you do not own a license.*

NXNW - you are very mistaken. The only legal entity that can transfer a license to our software is MacSpeech. As an example, try transferring your driver's license to your next door neighbor. You can give him your license, but that does not grant him the privilege of driving a motor vehicle.

Same thing here. Our original owner can give you tons of paper work, but until WE grant you a license, you don't have one. PERIOD.

No matter how "right" you think you are - your just aren't. We have a responsibility to protect the rights of our customers and you cannot subvert that right simply by saying you have pieces of paper and a disk with software on it. 

I have expended tons of time trying to drill this into your head. No matter how wrong you may think we are, and no matter how right everyone else thinks we are, it doesn't matter. In the end, the only thing that gets you a license is an email with specific information from the original owner of the license.

To be honest, NXNW, my patience is wearing thin. We would like you to have a pleasant experience with our software, but I wonder if that is now possible. If you continue to argue what you will not win, I may decide NOT to grant you that license even when the original owner grants his approval! I remind you, we are under no obligation to do so (but it would be the very first time we did not, given the appropriate information to verify the original licensee).

We are not afraid of saying that we don't want you as a customer. We have done it before. Cooperation is a two way street. We have provided a very reasonable path for you to acquire the software from a third party, with absolutely nothing to gain financially from doing so. If you can't accept that, then I am afraid the only recourse I will be able to offer you is to purchase the software legally from either our web site or an authorized reseller.

I will continue to volley with you to your heart's content, but this is your last warning. If you persist, we will not grant you license to use the software unless you purchase it through our web site or an authorized reseller. 

I would like to reiterate: you DID NOT purchase a license. Only MacSpeech can grant a license. What you purchased is a box, a CD, a registration card, and (presumably) a headset. Absolutely no license was transferred or purchased.

Your comment regarding Network Associates' EULA is totally irrelevant in this case. We routinely grant licenses for those with proper media credentials to review our software and we accept all reviews - both good and bad. That is not what is going on here. We are not trying to suppress free speech. We are simply protecting the rights of our customers. An entirely different thing.

Chuck Rogers, Chief Evangelist
MacSpeech, Inc.




nxnw said:


> Well, I do think the level of discourse has improved.No, I purchased a licence. It was conveyed to me by physical possession of the disk and unused registration card. I can provide evidence that would satisfy any reasonable person that ownership of the licence was ttransferred to me, but you don't want to be reasonable.
> Back to the EULA. Yes, you own the software, but I own one licence to use it. Whether you can enforce an unreasonable and unfair provision in a EULA that comes sealed in a box is a question of law. The EULA is not the law, just an arrogant and disreputable effort of many software vendors to strip away the rights of their customers in the fine print.
> 
> Only software companies are arrogant enough to tell their customers they can't resell what they bought in good faith for good money. If I buy a can of beans or a car or a computer, will heinz or ford or apple say, "hey, you don't have the right to resell those beans, that car, that computer! There's a piece of paper in the back of the glove compartment that says only you have the right to use it and it cannot be resold. We don't make any money if you resell our prouct to someone else"
> ...


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## thejst (Feb 1, 2005)

Good for you Chuck. I cant believe that you have put up with this for this long.


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## nxnw (Dec 22, 2002)

Chuck:


> Your comment regarding Network Associates' EULA is totally irrelevant in this case. We routinely grant licenses for those with proper media credentials to review our software and we accept all reviews - both good and bad.


My point was simply that your EULA is not conclusive. A court could choose not to enforce your restriction against transfer, just as it chose not to enforce Network Associate's restriction against benchmarking and reviews. I do not say the two restrictions are equivalent. The attempt to restrict free speech is, in my opinion, significantly worse than your restriction against transfer.

Now, speaking about free speech — you say this:


> We are not trying to suppress free speech.


but it seems that you are:


> If you continue to argue what you will not win, I may decide NOT to grant you that license even when the original owner grants his approval!


 You and I clearly have a difference of opinion about what is right and fair. Am I not entitled to my opinion and to express it without threat of reprisal?

One more thing, the original owner did grant his approval. The issue is what kind of proof you require.


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## scootsandludes (Nov 28, 2003)

Who was the original seller? Has NXNW contacted the original seller and ask them to provide a email to MacSpeech to authorize the license transfer? This seems like it can be solved very easily. It seems to me that MacSpeech is not only bending over backwards for you, but also juggling 6 bowling balls in the process. You should be so lucky that Chuck Rogers is even on this board trying to help you out with your problems, that's like having Steve Jobs helping us out in the tech section.

If I went into the ministry, and asked them to change over ownership of a car I bought, but my seller didn't sign the back of the ownership papers, because I neglected to ask them to sign it, but I demand that they change it because I have the factory keys, and the car is parked in their parking lot, and a picture of my seller giving me the thumbs up. They'd tell me to come back with a signed transfer slip, and if i got pissed at them for saying it can't be done, they'd call the police on me for trespassing and causing a disturbance. This situation is no different, they told you what you need, and you refuse to play by their rules that covers their ass. 

I'm sorry if it sounds harsh, but you're clearly in the wrong in this situation, and from what ehmacers here have read, I'm sure if we set up a poll, you'd see how many members are not on your side. 

vince


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## nxnw (Dec 22, 2002)

scootsandludes said:


> Who was the original seller? Has NXNW contacted the original seller and ask them to provide a email to MacSpeech to authorize the license transfer? ...
> 
> If I went into the ministry, and asked them to change over ownership of a car I bought, but my seller didn't sign the back of the ownership papers, because I neglected to ask them to sign it, but I demand that they change it because I have the factory keys, and the car is parked in their parking lot, and a picture of my seller giving me the thumbs up. They'd tell me to come back with a signed transfer slip, and if i got pissed at them for saying it can't be done, they'd call the police on me for trespassing and causing a disturbance. This situation is no different, they told you what you need, and you refuse to play by their rules that covers their ass.
> vince


I bought this over a year ago, initially tried to install it in the fall (without success, apparently due to some problem with the macspeech licencing server) and again recently, which led to the emails. I was able, eventually, to locate the seller's email address, but he did not respond. I reached him on the phone the other day, and he said he would send an email, but he appears not to have done so.. I am not suggesting he is doing something wrong, but clearly this is not on the top of his list.

As for the MTO example you mention - I don't know how it works with cars, but I do know how it works with a much more significant thig - mortgages:

Lets say you have a private mortgage for $250K on your house. You make your payments and have paid the mortgage in full. because this is a private lender, and things may not be as methodical as a bank, you don't get your discharge right away and, as long as the mortgage is on your title, it looks to all the world that there is a big mortgage on your house. You try to call the lender for a discharge - you discover he is gone. His office is vacant. His name is Smith, and you don't know where to begin looking. You cannot get his signature on a discharge.

Are you faced with the devastating problem that you can never sell your house, because there is a big mortgage on it? Fortunately not. You can make an application to the court for an order discharging the mortgage. Primarily, you have to prove that you paid what you owe and are entitled to the discharge. 

Unfortunately, so far, the only proof that will satisfy MAcSpeech is proof I don't have the power to deliver.


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## chuck.rogers (Jul 22, 2005)

*Free speech and approvals*

NXNW: I clearly stated I would volley with you to your heart's content. So I clearly recognize your right to free speech.

But you continue to insist the owner of the license granted approval of transfer, yet the only thing you can offer as proof are things that could clearly be provided WITHOUT his approval! As you pointed out, emails can be fabricated, as we pointed out, you may have found the box of goodies lying around somewhere.

The owner of the license has not given US (MacSpeech) approval for the transfer in such a way to meet our criteria. In fact, we have yet to hear from the original owner of the license at all. This policy is in no way designed to increase our profits. It is simply designed to protect the rights of our customers. 

You continually speak of your rights as though they are somehow more important than those of our customer or those of MacSpeech. That's only natural - we all want to get our own way. But the exasperating thing here is that you can't seem to get it through your head that we won't budge. I'm just saying I've had enough. 

You are playing in our sandbox here, not yours - and if you don't start playing nice, we will take our toys and go home!

Chuck Rogers, Chief Evangelist
MacSpeech, Inc.



nxnw said:


> Now, speaking about free speech — you say this: but it seems that you are: You and I clearly have a difference of opinion about what is right and fair. Am I not entitled to my opinion and to express it without threat of reprisal?
> 
> One more thing, the original owner did grant his approval. The issue is what kind of proof you require.


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## chuck.rogers (Jul 22, 2005)

*$250,000 vs $150. Hmmmmm.....*

That's an amusing comparison, NXNM. Because what you are referring to is a Quick Claim here in the states. I don't know about Canada, but what happens here is that if Mr. Smith returns at some point in the future he can stake a claim for his $250,000 against you. I believe there is a statute of limitations on it, but it is certainly much more than a year.

The purpose of a Quick Claim is to allow someone with a valuable asset a way of liquidating that asset when clear title cannot be established. Such situations, despite what you may believe, do not apply to smaller purchases.

Is it within our power to grant you a license? Certainly. I never said it wasn't. What I clearly said was that we will protect the rights of our customers at all costs. And by your own admission, the original license holder has not vanished into thin air. You spoke with him by phone.

Come on. Now you are just being silly.

Chuck Rogers, Chief Evangelist
MacSpeech, Inc.




nxnw said:


> I bought this over a year ago, initially tried to install it in the fall (without success, apparently due to some problem with the macspeech licencing server) and again recently, which led to the emails. I was able, eventually, to locate the seller's email address, but he did not respond. I reached him on the phone the other day, and he said he would send an email, but he appears not to have done so.. I am not suggesting he is doing something wrong, but clearly this is not on the top of his list.
> 
> As for the MTO example you mention - I don't know how it works with cars, but I do know how it works with a much more significant thig - mortgages:
> 
> ...


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## guytoronto (Jun 25, 2005)

chuck.rogers said:


> If you continue to argue what you will not win, I may decide NOT to grant you that license even when the original owner grants his approval!


Good on ya MacSpeech. You have a lot more patience than me. I would have cut him off ages ago.


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## iKV (Oct 3, 2004)

First, I wish you guys would have all had this discussion back in November when the software and/or license was first acquired -- it could have served as my legal education and saved me countless hours of reading legal drivel during an introductory law course I recently took! 



simon said:


> There should be a big label (like the ones the stick on cigarette packages):
> 
> WARNING! You are purchasing the right to use this software only! You may not sell, give, transfer, disclose or otherwise redistribute the software to a third party without our express permission in advance. If you break the software seal and discover the software is buggy, doesn't do as promised, or is basically a piece of sh!t, sorry for your luck - it's not our fault as you have no rights.





ehMax said:


> I don't agree...
> 
> Before you buy software, you can read reviews, ask friends, check web forums, download trial versions etc...
> 
> If you want to read a End User License agreement before even cracking the shrinkwrap, just look on the companies web site, and in a rare case they don't list it there, send them an email.


A bit off-topic now, but why should cigarette manufacturers have to label their cigarette packages with HUGE warnings, when smokers can simply read such warnings on health-oriented Web sites, news reports, the companies' Web sites, etc., while computer software manufacturers don't have to label their products with warnings that average new owners don't know about??? Not trying to take sides, just trying to understand your thinking + the legal process.

(Really, I just wanted to interact with our mayor  j/k)

**********

I was surprised -- and greatly educated, btw!! -- at the process involved in transferring a non-virgin software license / registration key to a new user/owner. Not too sure I'd want to purchase used software, but great educational value! 

And nxnw, it's a lousy $99 bucks, no? Go out and buy it new! 

**********

Btw, I greatly respect "the MacSpeech team" for going to such great lengths to educate customers & wannabes on their policies and procedures, and for taking a stand on ehMac. Good on you!


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## nxnw (Dec 22, 2002)

chuck.rogers said:


> That's an amusing comparison, NXNM. Because what you are referring to is a Quick Claim here in the states. I don't know about Canada, but what happens here is that if Mr. Smith returns at some point in the future he can stake a claim for his $250,000 against you.
> ...
> 
> And by your own admission, the original license holder has not vanished into thin air. You spoke with him by phone.


The right I was referring to, in Ontario, is under the Mortgages Act, s 12(8), which says, where the mortgage is paid and the mortgagee is dead, or "...in any other case it appears that all money due upon the mortgage has been paid and for any reason a discharge or reconveyance cannot be obtained without undue delay and expense the court may make an order discharging the mortgage."

To be sure, this specific law only applies to mortgages. I am not saying you are bound by the mortgages act. The point is that, while you can get a mortgage discharged without the mortgagees word if you prove you paid your money, you insist that only the seller's word will do in this comparatively trivial transaction.

Also, while you correctly point out that Mr. Smith could sue for the mortgage debt if, in fact it was still owed, that would usually be a hollow remedy, because the valuable property that secured the debt is now gone. Also, I think you mean "Quitclaim".


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## chuck.rogers (Jul 22, 2005)

Yes - QuitClaim. A word speech recognition software does not know, and I did not catch.


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## nxnw (Dec 22, 2002)

chuck.rogers said:


> ...you continue to insist the owner of the license granted approval of transfer, yet the only thing you can offer as proof are things that could clearly be provided WITHOUT his approval! As you pointed out, emails can be fabricated, as we pointed out, you may have found the box of goodies lying around somewhere.
> ...
> This policy is in no way designed to increase our profits. It is simply designed to protect the rights of our customers.


I insist he agreed to transfer it because he did! I paid good money, in good faith, for the software. He is not stopping me from using it, you are.

You can make all the fanciful hypothetical scenarios you like about the illicit means I may have employed to get my hands on the disk and blank registration card. I know came by these legitimately. I can provide evidence that would satisfy any reasonable person that I am telling the truth, and moreover, I think you believe me.


chuck.rogers said:


> You continually speak of your rights as though they are somehow more important than those of our customer or those of MacSpeech. That's only natural - we all want to get our own way. But the exasperating thing here is that you can't seem to get it through your head that we won't budge. I'm just saying I've had enough.


I respect your rights and do not consider them any less important than mine. I respect your right, for instance, not to have your software pirated. You, in contrast, purport that your honest customers don't have the right to honestly resell their copies of iListen. You rely on an unfair and untested provision in your EULA to assert that position. I feel that this does not respect the rights of your customers.

I do not "want my way". I do want you to be fair and reasonable. 



> ...if you don't start playing nice, we will take our toys and go home!


If you were merely insisting that the discussion be courteous, that's more than fair.


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## thejst (Feb 1, 2005)

chuck.rogers said:


> Yes - QuitClaim. A word speech recognition software does not know, and I did not catch.



Have you been using your software to dictate these posts? If so, sign me up!


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## chuck.rogers (Jul 22, 2005)

Look - as many times as you want to reply you are right, that's fine. Go right ahead. But you continue to assert that because you have everything, we should believe you. I continue to tell you it doesn't matter whether we believe you or not. Our EULA has been tested before and has served us quite well.

You say we are not respecting the rights of our customers. What about this do you not understand:

- the customer has no right to transfer a license. It is not theirs to transfer. PERIOD. Just because he agreed to the transfer (to you) doesn't mean he can transfer it. There ain't no quitclaim here, and even if there was, it wouldn't apply - the original owner has not vanished.

- we ARE looking out for our customer's rights. You are not a customer. In the unlikely event that you really did acquire the software without his permission, he will be forever grateful for this policy. In the more likely event he did intend to sell you the software, granting permission to transfer should be no big deal. We simply will not grant transfer without the original holder's permission. No way, no how. When and if you become entitled to a license you will enjoy the benefits of this policy as well.


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## nxnw (Dec 22, 2002)

This argument is what we, in legal circles, call "sucking and blowing at the same time". You try to impose an oppressive EULA provision to deprive your customers of the usual and expected right to resell what they bought. You insist he had no right to sell it to me "PERIOD". But you are protecting HIM by not letting me use what I paid him for. 

So, what is good enough proof that I am telling the truth? Please pick any combination of the below:

- the original registration card, now filled in by me, registering the software licence in my name?
- the original disk?
- the exchange of email between me and the seller, negotiating the transaction?
- the seller's name, email address and phone number, as provided by him to me?
- an affidavit of the assistant in my office saying that he came to my office and gave her the disk and registration card in exchange for my money?
- the ads he posted here, that are still online?


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## teeterboy3 (May 22, 2005)

Why not just get the seller to send the info MacSpeech requires to transfer the license? It seems like 5 minutes to do that is less work than arguing on the internet on a message board at length for days, weeks, or months… Unless, of course the person who sold you it, doesn't have that info?

Call me crazy, but I think there is a very easy solution to all of this you are overlooking to argue about how the company that is trying to accommodate you is oppressing you. But, that's just me…


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## MacGYVER (Apr 15, 2005)

nxnw said:


> This argument is what we, in legal circles, call "sucking and blowing at the same time". You try to impose an oppressive EULA provision to deprive your customers of the usual and expected right to resell what they bought. You insist he had no right to sell it to me "PERIOD". But you are protecting HIM by not letting me use what I paid him for.
> 
> So, what is good enough proof that I am telling the truth? Please pick any combination of the below:
> 
> ...


Remind me not to use your law firm that you work for, if this is how people in your office deal with things, then you and all the other lawyers should be ashamed.

This is not a court room, and you sound to me like you just graduated from some law school and are now trying to pull a mister know it all crap on some software company that you couldn't deal with 9 months ago. 

Another thing, what kind of lawyer buys software from a 3rd party without asking for a receipt of purchase (Or even a receipt)? You truly must be a rookie to using computers. You are a rookie as a lawyer as you don't even know the laws behind handing over ownership of used vehicles etc.. 

MacSpeech has been nothing but kind, has shown you several times what is needed for proof of purchase and to this day, you refuse to work with MacSpeech to register your software.

At this point your case is closed and you shouldn't even deserve to register your software anymore. MacSpeech has given you what you need, as soon as you deliver on your end, MacSpeech will hand over the registration number. 

Case dismissed!

NEXT!


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## thejst (Feb 1, 2005)

OOOOH-"legal circles!" Better watch out MacSpeech!

I wonder what NXNE would say if he were in the other seat (aka acting on MacSpeech's behalf?)

if indeed you are a lawyer, you must be a very young one- FYI, bushleague articling students are the ones most apt to try and throw the "I'm a Lawyer" weight around. You sound elitist and pretentious when you write things like that- Are you aware of this?

Hey, and-Guess what!..a lot of other people are lawyers too- thus far, your enlightened 'status' has had no effect in helping you achieve the desired result- In fact, your pedantic behaviour is producing the opposite result that (methinks)  you wanted by posting this on EhMac in the first place- namely a protest by the users of this board against MacSpeech that may have helped in getting you what YOU want.

The company had offered you a reasonable fix to your problem, even though they have no real vested interest in doing so (who would want to deal with imperious, belligerant (non)customers like you?) And MacSpeech deserves credit for taking it even this far. 

Until you become a customer of theirs- you have no claim against them. 

So grow up, Okay Sweetie?


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## guytoronto (Jun 25, 2005)

pe·dan·tic • adj.
Characterized by a narrow, often ostentatious concern for book learning and formal rules

os·ten·ta·tious • adj.
Characterized by or given to ostentation; pretentious.

os·ten·ta·tion • n.
Pretentious display meant to impress others; boastful showiness.

pre·ten·tious • adj.
Claiming or demanding a position of distinction or merit, especially when unjustified.
Making or marked by an extravagant outward show; ostentatious.

clue·less • Pronunciation Key (klls) adj.
Lacking understanding or knowledge.


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## thejst (Feb 1, 2005)

Rotflmao!


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## scootsandludes (Nov 28, 2003)

nxnw said:


> I bought this over a year ago, initially tried to install it in the fall (without success, apparently due to some problem with the macspeech licencing server) and again recently, which led to the emails. I was able, eventually, to locate the seller's email address, but he did not respond. I reached him on the phone the other day, and he said he would send an email, but he appears not to have done so.. I am not suggesting he is doing something wrong, but clearly this is not on the top of his list.[/QUOTE
> 
> 
> As for the MTO example you mention - I don't know how it works with cars, but I do know how it works with a much more significant thig - mortgages:
> ...


See the problem here? You should be bitching and complaining to the person you bought it from and not MacSpeech! Again, they have privacy rights to protect. If it's not a priority for this seller to help you get this out of the way, maybe you should make it your business for them to get this done, a confirmation email only takes a minute to send. Then this seller should do it. If that doesn't work then...

How about a compromise? PM Chuck Rogers here the sellers phone number, MacSpeech can call the number and have the seller verify the email or whatever they require to verify that a legal transaction has taken place. 


For a car, if you look on the back of your automobiles ownership paper, you see a line that you need to sign when you sell your vehicle. If the ownership is missing and is legite, and the transaction is legal, you get a signed reciept, take it down to the Justice of the Peace, Judge or lawyer to sign a affidavit, take it back to the ministry, and they'll stop laughing at you and give you rightful ownership of the car. That's legal proof that you bought the car.

What you need is proof. You can bitch and complain to MacSpeech all you want, but you still need legal proof that you acquired the software legitimately. 

vince


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## nxnw (Dec 22, 2002)

Actually, what is really pretentious is the opinion of some of you, which is not based on any education, knowledge or experience. Some of your comments are so crude and abrasive they are likely embarrassing to the person who you are supporting.

By the way, my purpose in posting was not to twist MacSpeech's arm. It was, and is, my view that their EULA is unprincipled and unfair. While some of you may not agree with me, I suspect that others who are not so - outspoken - have read the exchange and, at the least, been surprised to see MacSpeech insisting that nobody has the right to resell iListen.


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## ehMax (Feb 17, 2000)

> been surprised to see MacSpeech insisting that nobody has the right to resell iListen.


  But they haven't been insisting that. They have stated several times, they WILL let someone resell iListen. All they require is confirmation from the original seller via the registered email address. 

If I was a Macspeech customer, I would feel really great about how they would protect my license. I have no need for voice dictation software, but if I did... I would feel really great about buying from Macspeech. It's rare to see a vendor care so much about their customers and a software vendor who would take so much time explaining their policies to someone who isn't a customer.


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## _Outcast_ (Oct 17, 2003)

nxnw said:


> Actually, what is really pretentious is the opinion of some of you, which is not based on any education, knowledge or experience. Some of your comments are so crude and abrasive they are likely embarrassing to the person who you are supporting.
> 
> By the way, my purpose in posting was not to twist MacSpeech's arm. It was, and is, my view that their EULA is unprincipled and unfair. While some of you may not agree with me, I suspect that others who are not so - outspoken - have read the exchange and, at the least, been surprised to see MacSpeech insisting that nobody has the right to resell iListen.


 Whatever. The bottom line is that MacSpeech has a set of rules in place to protect their (paying) customers. So far, this is not you. They were kind enough to allow you to transfer the license provided certain conditions were met. Conditions that were/are clearly spelled out in the EULA. And you don't aggree so you carry on like a petulent child. 

Are those pretty much the facts so far? Just checking.

Most software companies have similar EULAs. I know a few years back when I sold the PC versions of my Adobe packages that I had to fill out a form and send it in to Adobe before they would let the person I was selling the software to register it under their name. Both parties involved had no problem with this as we knew about it going into the transaction because we had read the EULA and had also searched Adobe's website to see what the rules were ahead of time.

Maybe the seller should have warned you about this before agreeing to selling you the software. Maybe he didn't know about it. Maybe you didn't know about it. Ignorance is still no excuse. You, as someone in the legal profession, should know that.

I just don't understand what you're trying to accomplish here. If you're trying to alienate and offend the users here, drag a software company's name through the mud, and make yourself look like a whining malcontent then I guess you've succeeded. If not, maybe you should rethink your strategy.

Not trying to piss anyone off here, it just seems that you're bent on making the rest of hate MacSpeech. To what end I don't know but as far as the rest of us can tell they seem to be clearly in the right and have been far more accomodating than you deserve. You posted a little while back that your problem has been rectified. Great. So why does this continue?

Good luck.

Jerry


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## thejst (Feb 1, 2005)

nxnw said:


> Actually, what is really pretentious is the opinion of some of you, which is not based on any education, knowledge or experience. Some of your comments are so crude and abrasive they are likely embarrassing to the person who you are supporting.



Tread Carefully Here, my friend. Whatever crudeness and abrasiveness you are percieving/speaking of here is directed squarely at YOU- for your arrogance, elitism and, to be frank, plain stupidity. 

It is one thing to post here with an issue that may be relevant for those that participate on this (multi-party DISCUSSION) board...it is another to use this forum as a soap-box for your righteous, snivelling, pretentious and imperious POV. Not to mention your pathetic arguments that are going nowhere.

I don't think I'm alone in saying that the only embarrassment felt here is reserved for you, and you alone. 

Try a little courtesy before the snotty outrage next time, Okay?
Cheers,

James


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## CubaMark (Feb 16, 2001)

> While some of you may not agree with me,...


Um... has <i>anyone</i> in here agreed with you?

I'd say you have the perfect characteristics to be a top-notch litigator: complete confidence that your opinion is the only right one; commitment to the goal, regardless of material evidence; a crusading attitude to "make law" when circumstances do not favour your case.

And in the event that it's not clear, that was not a compliment.

I side with MacSpeech on this one.

M


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## nxnw (Dec 22, 2002)

thejst said:


> ... Whatever crudeness and abrasiveness you are percieving/speaking of here is directed squarely at YOU


 I noticed. At least you recognize that you have been crude and abrasive. It woul be nice if you stopped, and tried to respond more thoughtfully and intelligently.


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## Randy B. Singer (Jul 23, 2005)

*Another Attorney's View Of This*

Hi folks! Let me introduce myself before I interject myself into this thread. I am a practicing attorney of 20 years. I specialize in civil litigation. 

I am also the head of The MacAttorney User Group, a user group for attorneys who use the Macintosh computer. At this moment we have over 5,200 Mac-using law firms that are members.
http://www.macattorney.com

I was the largest contributing co-author to The Macintosh Bible, 4th, 5th and 6th editions. (That was back when TMB was the world's best-selling book about the Macintosh.) I've also written for a bunch of other Macintosh publications. I have a few OS X troubleshooting sites that are fairly popular. 
http://www.macattorney.com/ts.html
http://www.macattorney.com/tutorial.html 
http://www.macattorney.com/panther.html 

I caught wind of the discussion going on here, and I wanted to say a few things about it. As you can see, I have a tiny bit of experience with the law, with computers and software, and with dealing with other attorneys.

First, I want to apologize on behalf of attorneys everywhere for "nxnw". I've known literally hundreds, maybe thousands, of attorneys as a result of my position with MacAttorney. The overwhelming majority of attorneys are not jerks. Most act very professionally and they don't make endless, illogical, vexatious arguments in public. Unfortunately, in every profession there are exceptions, and those exceptions make the rest of us look bad. Please don't judge all of us based on "nxnw."

Second, I've dealt with MacSpeech on and off for a bunch of years now. Speech recognition is very important to attorneys, as you can imagine in a profession where you are constantly writing documents. MacSpeech has always been great to deal with, and more than that, they have always been a Mac-only company. I have great appreciation for software companies that are committed to the Mac, and only the Mac. Chuck hasn't always worked for MacSpeech, in fact he used to work for Apple, but I consider him to be an excellent reason to be very impressed with, and loyal to, MacSpeech. I'm sure that you can see why from his posts here.

MacSpeech is currently the only software company that is actively developing voice recognition software for the Mac. IBM's Via Voice has been outsourced to ScanSoft for sales and support (used very loosely in this instance, ScanSoft is not known for their support) and there will be no more development done on ViaVoice. MacSpeech attends just about every Macintosh show, they often speak at Apple stores, and they are very responsive to their customers.

Now, let me deal with the matter at hand. I haven't read it, but I suspect that the MacSpeech iListen end user license (EUL) states that U.S. law applies to its interpretation, because MacSpeech is a U.S. company. (I'm sure that Canadian law is similar. Both countries have based their law on British common law.)

It has been clearly decided by U.S. courts that a software company can sell a license to their software and that when they do so the end user has not purchased the software itself, just the right to use it. 

For a while there was a controversy over whether an end user was agreeing to the terms of the EUL (which is necessary for them to be enforceable) when the end user didn't see them until after he got the software home and opened the box. This has long since been decided. The end user is free to return the software for a refund if he does not agree to the terms of the EUL, before opening the inner envelope in the box and/or before installing the software. So, EUL's, even if you think that they are "unfair," are entirely legal and enforceable.

As for transferability, I see that a couple of folks have pointed out here in this thread, correctly, that it is perfectly legal to sell software licenses that are not transferable. In fact, it isn't even all that uncommon. Mostly companies that are trying to get by on a minimal number of sales (such as MacSpeech) don't allow you to transfer your license to software. Some companies (notably the music creation software companies) even go so far as to require you to have and use a hardware dongle to make your software work. The dongle only allows their software to run on one computer, and that's it. Even if you sell the software and dongle to someone else, it won't work on any computer other than the single computer it is licensed for. 

So, MacSpeech has a right to sell a single license to their software for use on one computer, and/or for the benefit of one end user. They also have the right not to allow that software license to be transfered to a new end user. That is the state of the applicable law, and there is no argument to be made that it isn't. 

If "nxnw" wants a functional copy of iListen to use on his computer, he is free to purchase his own license like anyone else. If he feels that he didn't get value for the money he paid to the owner of the license to iListen, the copy of which "nxnw" has in his possession, then it seems to me that he has an excellent cause of action against that person...and no one else. He may want to contact that person and ask for his money back, and if that fails he may want to consider a small claims action against that person.

My recommendation to MacSpeech is to tell "nxnw" that they would love to have him as a customer, but otherwise there isn't anything that they can do for him. His recourse is solely with the owner of the software license. And really, that is the end of the discussion. 

A true professional would accept that, handle the matter in the manner outlined above, and move on. Arguing semantics, under color of being a legal professional, so as to twist the reality of the law, or of the facts, in a public forum, not only isn't becoming, or professional, it demeans the entire legal profession. Personally, I'm very offended by that. I sincerely hope that it doesn't continue.

Once again, I'd like to apologize on behalf of all attorneys. This matter should have been handled privately, and in a gentlemanly fashion. Please don't judge all of us by the silliness in this thread.


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## ehMax (Feb 17, 2000)

> Once again, I'd like to apologize on behalf of all attorneys. This matter should have been handled privately, and in a gentlemanly fashion. Please don't judge all of us by the silliness in this thread.


Just when I was about to start writing lawyer jokes.


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## Fink-Nottle (Feb 25, 2001)

Hi Randy,

Nice to hear from you... you probably don't remember me but I did Mac tech support for Gavel & Gown/Amicus before they canned their Mac version and I spoke to you a couple of times. Cheers!


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## nxnw (Dec 22, 2002)

Randy B. Singer said:


> It has been clearly decided by U.S. courts that a software company can sell a license to their software and that when they do so the end user has not purchased the software itself, just the right to use it.


That has never been an issue here.


Randy B. Singer said:


> For a while there was a controversy over whether an end user was agreeing to the terms of the EUL (which is necessary for them to be enforceable) when the end user didn't see them until after he got the software home and opened the box. This has long since been decided.


Has it been decided in a court that this is so, or is it a practice arising from the settlement in the Baker case in California?


Randy B. Singer said:


> So, EUL's, even if you think that they are "unfair," are entirely legal and enforceable.


This is not so. A EUL, like any contract, is subject to the law. There are a broad variety of reasons any contract may not be enforceable including, for instance, illegality. IN NY state, for instance, a provision in a EUL forbidding benchmarking and reviewing certain software was successfully attacked. 

In Ontario, there is a line of authority following our Court of Appeal's judgment in Tilden v. Clendenning, where the court said: “In modern commercial practice, many standard form printed documents are signed without being read or understood. In many cases the parties seeking to rely on the terms of the contract know or ought to know that the signature of a party to the contract does not represent the true intention of the signer, and that the party signing is unaware of the stringent and onerous provisions which the standard form contains. Under such circumstances, I am of the opinion that the party seeking to rely on such terms should not be able to do so in the absence of first having taken reasonable measures to draw such terms to the attention of the other party..."

A provision stating that a purchaser cannot resell his licence does not appear to be the norm, and is certainly not what most users expect. Flat restrictions on resale are frequently posted on the face of the box, drawing it to the attention of the buyer. As a question of law, in these circumstances, I believe this EUL would not be enforceable.


Randy B. Singer said:


> As for transferability, I see that a couple of folks have pointed out here in this thread, correctly, that it is perfectly legal to sell software licenses that are not transferable.


 Is there a court anywhere that has said this?

I look forward to your erudite response.


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## nxnw (Dec 22, 2002)

Given the vitriol of some of the comments here, I have reviewed this thread, particularly my own comments and my exchange with MacSpeech. My opinion on the issues is unchanged, but I certainly do regret some of my language in my communication with MacSpeech. There was no call for being abrasive or impolite, and I apologise to MacSpeech for so doing.


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## chuck.rogers (Jul 22, 2005)

thejst said:


> Have you been using your software to dictate these posts? If so, sign me up!


The longer ones, yes (mostly). I have been correcting by keyboard and mouse, however - not using the built-in correction capabilities, just because there haven't been that many errors (but please understand, I have a VERY well-trained profile).


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## Randy B. Singer (Jul 23, 2005)

ehMax said:


> Just when I was about to start writing lawyer jokes.


Please don't hold back! I love lawyer jokes. In fact, if you have some good ones, please e-mail them to me directly at:
[email protected]

Just, please, try not to send me the ones that all of us have heard a thousand times. Only send me really good, or new ones. 

Believe it not, most attorneys love good lawyer jokes. I put out The MacAttorney Newsletter, and every issue has a couple of lawyer jokes at the end. Some attorneys have actually told me that they look forward to every issue of The MacAttorney Newsletter just for the jokes!

Here, let me give *you* some:


Prosecutor: Did you kill the victim?

Defendant: No, I did not.

Prosecutor: Do you know what the penalties are for perjury?

Defendant: Yes, I do. And they're a hell of a lot better than the penalty for murder.

<> ========== <> ========== <> ========== <> 

A dad walks into a market followed by his ten-year-old son. The kid is spinning a 25 cent piece in the air and catching it between his teeth. As they walk through the market, someone bumps into the boy at just the wrong moment and the coin goes straight into his mouth and lodges in his throat. He immediately starts choking, going blue in the face, and Dad starts panicking, shouting for help.

A well dressed middle-aged, moderately attractive but serious woman in a blue business suit, is sitting at a coffee bar in the market reading her newspaper and sipping a cup of coffee. At the sound of the commotion, she looks up, puts her coffee cup down on the saucer, neatly folds her newspaper and places it on the counter. Then, she gets up from her seat and makes her unhurried way across the market.

Reaching the boy, the woman carefully takes hold of the boy's testicles and squeezes gently at first and then ever more firmly. After a few seconds the boy convulses violently and coughs up the 25 cent piece, which the woman deftly catches in her free hand. Releasing the boy, the woman hands the coin to the father and walks back to her seat in the coffee bar without saying a word.

As soon as he is sure that his son has suffered no lasting ill-effects, the father rushes over to the woman and starts effusively thanking her saying, "I've never seen anybody do anything like that before -- it was fantastic. Are you a doctor?"

"Good heavens, no," the woman replies. "I'm a Divorce Attorney."


Oh, by the way, if you know of any attorneys who use a Macintosh, or if you know of any attorneys who are considering switching to the Mac, or any law students in the same situations, please give them my e-mail address and have them request a free e-mail subscription to The MacAttorney Newsletter.

Thanks!


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## Randy B. Singer (Jul 23, 2005)

Fink-Nottle said:


> Hi Randy,
> 
> Nice to hear from you... you probably don't remember me but I did Mac tech support for Gavel & Gown/Amicus before they canned their Mac version and I spoke to you a couple of times. Cheers!


 Hey Philip! How are you doing, buddy? It's been a while! 

Gavel & Gown are migrating their software to the Web, but it still isn't Macintosh compatible. In fact, they call it Amicus X, which causes some folks to think that it is for OS X. Or some folks just assume that if it is Web-based that it must work with the Mac. But it doesn't.

Occasionally G&G will send me an e-mail telling me that a Mac version is just around the corner. I will believe that when I see it.


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## Randy B. Singer (Jul 23, 2005)

*Litigators (off topic)*



CubaMark said:


> Um... has <i>anyone</i> in here agreed with you?
> 
> I'd say you have the perfect characteristics to be a top-notch litigator: complete confidence that your opinion is the only right one; commitment to the goal, regardless of material evidence; a crusading attitude to "make law" when circumstances do not favour your case.


[Laughing!]

I want to complement the folks on this list. You are all much more perceptive and eloquent than I've come to expect people to be on a Mac discussion list. (I'm on about a dozen Mac discussion lists.) Maybe its a Canadian thing? It's kind of sad, but the more that I travel, the more that I think that every country in the world has a better educated general population than the U.S.

As for the quote above, I think that's the general stereotype, but I don't think that it is the reality. The best litigators are gentleman; their arguments sound as if they are mainstream, and they rarely, if ever, appear to be on a mission.

I was a part-time judge for several years, which was a real eye-opener to me with regard to what makes a good attorney. I saw every kind of attorney: loudmouths, aggressive types, nasty types, etc. One day I sat down and thought about which attorney I thought was by far the most effective in the county. I was surprised by my conclusion. 

There was an overweight attorney who looked like his mother may have been dressing him, and that he may still be living with her too. He always spoke in low hesitant tones, as if he wasn't entirely self-secure. He never argued with anything that I ever said, or really with anything that opposing counsel said. He never insisted on anything. 

It occurred to me that when this guy said anything in court, I always gave it great weight. He was absolutely believable, no matter what he said. He never wasted the court's time, he never engaged in fallacious arguments. And...he never lost a case.

That was a real lesson in what makes a great litigator. It's all about personal credibility. You don't establish great credibility by arguing endlessly. Doing that usually only hardens others against you. You establish great credibility by being understated, by not getting anyone emotionally charged needlessly, by always being on point, and by not giving anyone any reason to doubt a single thing that you say.

That's not how it is presented on television shows about attorneys, because that would be incredibly boring. But that's how it works in reality.

(Sorry for the off-topic post.)


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## CubaMark (Feb 16, 2001)

Randy, thanks for your contribution to this thread (and hopefully, for future discussions on ehMac!). It's true that the notorious characters tend to define the stereotype, a reality I readily admit. Our belligerent contributor is doing nothing to alleviate that characterization.

Welcome to ehMac!

M


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## Randy B. Singer (Jul 23, 2005)

CubaMark said:


> Randy, thanks for your contribution to this thread (and hopefully, for future discussions on ehMac!). ...Welcome to ehMac!
> M


 Thank you for the warm welcome!

More off topic lawyer jokes:

<<<>>> <<<>>> <<<>>> <<<>>> <<<>>> <<<>>> <<<>>> <<<>>>

Mrs. Hunter was called to serve for jury duty, but asked to be excused because she didn't believe in capital punishment and didn't want her personal views to prevent the trial from running its proper course. But one of the attorneys liked her thoughtfulness, and tried to convince her that she was appropriate to serve on the jury.

"Madam," he explained, "This is not a murder trial! It's a simple civil lawsuit. A wife is bringing this case against her husband because he gambled away the $12,000 he had promised to use to remodel the kitchen for her birthday."

"Well, okay," agreed Mrs. Hunter, "I'll serve. I guess I could be wrong about capital punishment after all!"

<<<>>> <<<>>> <<<>>> <<<>>> <<<>>> <<<>>> <<<>>> <<<>>>

A local United Way office realized that it had never received a donation from the town's most successful lawyer. The person in charge of contributions called him to persuade him to contribute.

"Our research shows that out of a yearly income of at least $500,000, you give not a penny to charity. Wouldn't you like to give back to the community in some way?"

The lawyer mulled this over for a moment and replied, "First, did your research also show that my mother is dying after a long illness, and has medical bills that are several times her annual income?"

Embarrassed, the United Way rep mumbled, "Um...no." 

"--or that my brother, a disabled veteran, is blind and confined to a wheelchair?"

The stricken United Way rep began to stammer out an apology but was interrupted, "--or that my sister's husband died in a traffic accident," the lawyer's voice rising in indignation, "leaving her penniless with three children?!"

The humiliated United Way rep, completely beaten, said simply, "I had no idea..."

On a roll, the lawyer cut him off once again: "--so if I don't give any money to them, why should I give any to you?!?"

<<<>>> <<<>>> <<<>>> <<<>>> <<<>>> <<<>>> <<<>>> <<<>>>

Best Bumper Sticker Of 1999:

If you can read this, I can hit my brakes and sue you.

<<<>>> <<<>>> <<<>>> <<<>>> <<<>>> <<<>>> <<<>>> <<<>>>


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## Paul O'Keefe (Jun 3, 2005)

*Still waiting for Singer's reply*



nxnw said:


> That has never been an issue here.Has it been decided in a court that this is so, or is it a practice arising from the settlement in the Baker case in California?This is not so. A EUL, like any contract, is subject to the law. There are a broad variety of reasons any contract may not be enforceable including, for instance, illegality. IN NY state, for instance, a provision in a EUL forbidding benchmarking and reviewing certain software was successfully attacked.
> 
> In Ontario, there is a line of authority following our Court of Appeal's judgment in Tilden v. Clendenning, where the court said: “In modern commercial practice, many standard form printed documents are signed without being read or understood. In many cases the parties seeking to rely on the terms of the contract know or ought to know that the signature of a party to the contract does not represent the true intention of the signer, and that the party signing is unaware of the stringent and onerous provisions which the standard form contains. Under such circumstances, I am of the opinion that the party seeking to rely on such terms should not be able to do so in the absence of first having taken reasonable measures to draw such terms to the attention of the other party..."
> 
> ...



It's too bad that Singer doesn't respond to your points and instead tells jokes. Obviously, contracts are not law unto themselves, but are subject to law. I doubt that the claus in *some* EULAs which restrict resale or transfer has been tested in courts. Perhaps he is getting an assistant to look for precidents while he makes some more lawyer jokes... albeit funny ones.

Obviously MacSpeech has given up this non-transferance claus in their EULA as they have stated here in this forum that they do allow transfers. That can be tested in court on this... but basically they can't have it both ways.

I would suggest that nxnw give MacSpeech the phone number and email of the guy who sold the licence (yes, he sold it) and they should contact their customer... after all they have such good relationships with their customers.

It appears that nxnw has made *fair and reasonable* attempts to get the person who sold the licence to contact MacSpeech and to provide MacSpeech with evidence of ownership. If the seller doesn't make contact with MacSpeech, I suggest nxnw should put in a small claims court thingee agaisnt the reseller, or simply return the product and ask for a refund. I hope that MacSpeech tries to get in touch with their customer/the reseller in the meantime.

*To MacSpeech: your non-transference claus no longer applies, as you have volutarily given it up and have publically admitted so here in this forum.*


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## contoursvt (May 1, 2005)

Sweet mother of god this thread is still going on!!!


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## chuck.rogers (Jul 22, 2005)

*EULAs and such*

Paul:

We have not voluntarily given up our right to not enforce our EULA. What we have done is said that if the original owner grants us permission, we tend to do so. We are not required to do so, and reserve the right not to do so.

The reason we do is very simple: we would rather have a happy customer using the software rather than an unhappy one who is not.

To the extent NXNW is willing to be a happy customer, we are willing to grant a transfer, providing the original license holder grants permission. If it becomes really obvious to us NXNW is never going to be a happy customer, or should the original owner fail to provide permission, then we are not. Of course, if NXNW purchases a license directly from us or one of our authorized resellers, we would respect his right to own a license and hope he has a happy experience with our software.

We have tried to contact the original owner, which I would like to stress is beyond the call of duty here, but the email we have is no longer valid.





Paul O'Keefe said:


> It's too bad that Singer doesn't respond to your points and instead tells jokes. Obviously, contracts are not law unto themselves, but are subject to law. I doubt that the claus in *some* EULAs which restrict resale or transfer has been tested in courts. Perhaps he is getting an assistant to look for precidents while he makes some more lawyer jokes... albeit funny ones.
> 
> Obviously MacSpeech has given up this non-transferance claus in their EULA as they have stated here in this forum that they do allow transfers. That can be tested in court on this... but basically they can't have it both ways.
> 
> ...


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## Brian Scully (Jan 23, 2001)

Has this not gone on long enough 
(1) the original had no license to sell according to the EULA PERIOD
(2) should have MacSpeech had the right to make such a restriction in their EULA
(3) is seems to be self evident that they had that right and 
(4) to waive it if the original purchaser signed off ( the original EULA prohibits this it seems)
(5) thus the person selling this realatively inexpensive soft ware did so in EXPRESS violation of the MacSpeech EULA it would seem that 
(6) the buyer had absolutely no rights to this software from MacSpeech if he did not meet their requirements of a sign off from the original owner who should never have sold the soft ware in the first place.

We now have lawyers of many stripes from Randy Singer ( welcome to the premiere CANADIAN Mac site) to many including the original poster arguing the merits of this case.

Sorry all but the combined billing hours of even a 1/10 of those posting would have paid for tens of full working legal copy of the software in question at a minimum

I am one that would never ever advocate the stifleing of free discussion but has this not gone on LONG ENOUGH 

BUY the XXXXXXX software already and get a life 

Wecome Randy its nice to have your presence on Canada's premeire Mac discussion group


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## Paul O'Keefe (Jun 3, 2005)

chuck.rogers said:


> We have tried to contact the original owner, which I would like to stress is beyond the call of duty here, but the email we have is no longer valid.


Call him. Write him a real letter. If you have the contact info use it. Email is not the end of communication.

And yes, if you have a claus that says that one cannot resell a license or otherwise tranfer it and you have come out publicly and say that you ignore it for certain cases you've effectively voluntarily struck down that claus or at least altered it significantly.

The only way that claus could have existed is if you stuck with it... no exceptions. Even then it might not have helped up in court. As far as we can tell it hasn't be challenged.

Anyway, you are leaving yourselves wide open. I mean if you don't recognize the transfer of this licence shouldn't you be actioning the reseller for violating the EULA by selling it. You can't have it both ways.

You have an unofficial policy of licence transfer on something you have official policy against. You have made the unofficial policy, into official policy here by stating it publically for the record here. Unfortunately the procedure for this new policy is not well documented since for most of it's life it was unofficial.

This is what happens when you make exceptions.


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## chuck.rogers (Jul 22, 2005)

Paul (and everyone else):

This policy, in fact, has been challenged more than once. MacSpeech has won each time. We have the right to grant or not grant a license because our EULA says the end user does not. It is that simple.

Our policy is very straight forward: the end user does not have the right to transfer the license. PERIOD. Whether we do or not, is totally beside the point. And as has been pointed out, we will - as soon as the original purchaser gives us permission. That is exactly what has happened in every other case where we have transfered a license. We have never transferred a license without the original owner's consent, and until we get that consent we will not - there is nothing unofficial about it. We have been entirely consistent in our application of this policy and not left ourselves open to anything.


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## nxnw (Dec 22, 2002)

chuck.rogers said:


> ...This policy, in fact, has been challenged more than once. MacSpeech has won each time. We have the right to grant or not grant a license because our EULA says the end user does not.


 Where did you win? If the restriction on transfer in your EULA was challenged in a court of record, and upheld by a judgment, that would be very interesting. It would certainly impact and likely change my opinion on the issue.


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## guytoronto (Jun 25, 2005)

In the case of NXNW vs. MacSpeech, I hearby rule that boys will be boys.


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## Randy B. Singer (Jul 23, 2005)

Brian Scully said:


> Has this not gone on long enough...
> Sorry all but the combined billing hours of even a 1/10 of those posting would have paid for tens of full working legal copy of the software in question at a minimum
> 
> I am one that would never ever advocate the stifleing of free discussion but has this not gone on LONG ENOUGH
> ...


I have to agree. MacSpeech has very clearly explained their (I think very reasonable) position a bunch of times now. 

I've given my take, "nxnw" and "Paul" (interesting how they sound to be exactly the same person, isn't it?) can like it or lump it. I'm not going to be drawn into a pedantic argument. I'm also not going to do their legal research for them. 

"nxnw" doesn't get it, and apparently never will. This thread isn't going anywhere.

I think that it should be closed, and that "nxnw" should either pursue his remedies directly, or via the legal system that he is so fond of citing (incorrectly.)



Brian Scully said:


> Wecome Randy its nice to have your presence on Canada's premeire Mac discussion group


Thanks Brian!

I've looked around through the Mac help topics here, but I haven't found an opening to post yet. You already have an impressive assortment of knowledgable folks helping here!


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## nxnw (Dec 22, 2002)

Randy B. Singer said:


> I've given my take, "nxnw" and "Paul" (interesting how they sound to be exactly the same person, isn't it?) can like it or lump it. I'm not going to be drawn into a pedantic argument. I'm also not going to do their legal research for them.


Please. We are not the same person and your comment is just more mudslinging. The man states his own opinion in a civil manner and you have to attack him too?

As for " I'm also not going to do their legal research for them," One who knows the law on a subject as definitively as you claim to in this instance, is able to cite some authority to support his views without any research.


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## Randy B. Singer (Jul 23, 2005)

nxnw said:


> As for " I'm also not going to do their legal research for them," One who knows the law on a subject as definitively as you claim to in this instance, is able to cite some authority to support his views without any research.


I'm surprised at how ignorant you are of the law for someone who claims to be a lawyer. You don't even sound as knowledgeable as a first year law student. (Not to mention your lack of professionalism.)

You have no legal or factual argument that applies in your favor here. *None*. Even assuming arguendo that shrink-wrapped EULA's are not entirely enforceable because the user doesn't see the contract until after they have purchased the software, that is absolutely irrelevant here.

You didn't purchase the iListen software brand-new with a shrink-wrapped license. You purchased it used. The software was already open. You had every opportunity to review the EULA before purchasing the software.

You aren't MacSpeech's customer. You aren't in privity of contract with them. The only person who has standing in this instance to assert a claim based on the EULA is the registered owner. He is the only person who might have been harmed by an EULA that he didn't get to read before purchasing the software.

Is there no end to how much you are willing to embarrass yourself in this public forum? Can you possibly be that deluded and fixated that you are blind to the derision that you are suffering from the other users here? Can you not see that this thread isn't helping your cause one bit, in fact, if anything, it has hurt it? 

This thread really needs to be put out of its misery.


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## kps (May 4, 2003)

> Is there no end to how much you are willing to embarrass yourself in this public forum?


Apparently not.  

*nxnw*, MacSpeech has flexed enough in helping you obtain a license, but I think that your continued belligerence might have decided that they don't want you as a customer...ever. I for one, would not blame them.


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## nxnw (Dec 22, 2002)

Mr. Singer: It would be good if you could respond without insults and rancour. Someone who feels that he has the moral authority to lecture on professionalism should be able to state his own position with more civility.

First, you have not responded to the point at issue: You have stated categorically that the subject EULA, forbidding transfer of the licence, is enforceable. I have asked you if you have any authority - i.e. a judgment of any court in the US or Canada – to support your view. I do not believe there is any such authority.

Second, if the restriction on transfer is not valid, the seller who owned the licence had an unrestructed right to sell it. This, with respect, IS first year property law. If I sell a used computer, I do not need to beg Apple's permission. If I sell my house, I do not need the builder's permission. Unless the EULA provision is enforceable, MacSpeech has no say in the matter.

Finally, if MacSpeech has no right to restrict transfer, even if they choose not to support the product, they have no right to stop me from using it. That is the issue here - not support, just the right to use what I bought and paid for in an honest and, in my view, legal, transaction.

Now, you also persist in impugning my honesty - arguing that I am not a lawyer - for the evident purpose of bolstering your own position. For the record, I was called to the bar in 1983 and practice civil litigation. I have appeared at every level of court in this jurisdiction. I am, in fact, senior to you. Of course, that does not make my opinion correct. By the same token, you would have no more call to state your views in such an inappropriate manner even if I were a law student.

If you choose to reply, please keep it civil.


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## ehMax (Feb 17, 2000)

I think this thread has gone on long enough and wheels are starting to spin.


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