Supporting Softman

My response supporting Softman:



The Issue presented here is whether Softman is justified to distribute individual pieces of the Adobe collection package acquired from them or it is indeed bound by Adobes EULA that that prohibits redistribution of individual parts.  Adobe Systems is a producer of softwares whereas Softman Products Company distributes these softwares through its website.  The software under discussion was initially sold to Softman as one collection (Kubasek, Brennan, & Browne, (2015). p.283). This is one of the means through which Adobe distributes its products mainly through licensing.  A debatable issue that arises in this case is whether the collection given to Softman was licensed or sold.  Moreover, Adobe collections are essentially accompanied by End User License Agreements, which tends to lay out requirements or licensing terms between Adobe and the end user for that particular product.  In this case, the Adobe software is accompanied by EULA which is found on a computer disk and can only be found and agreed to upon running the program.  This presents another contentious issue in the case as to whether Softman installed the software and are therefore bound by the EULA terms or not.  Finalmly, the EULA terms prohibit distribution of individual parts from the collection.  The main debatable issue therefore is whether Softman violates Adobes terms of service by distributing versions of the software.


In this case, Softman should prevail.  In the issue of whether Softman are bound by terms of the EULA, it can be determined that since Softman did not run the software before distribution, they did not agree to the terms and are therefore not bound by it.  For a contract to be valid there must be assent on the part of the user.  Since Adobe does not provide a hard copy of the terms of its EULA, users essentially can only agree to these terms during the installation process (Kwong, 2003).  Consequently, Softman could only have assented if they attempted to install the software and were required to do so.  It therefore implies that they cannot be bound by the terms.  On the issue of whether the collection was a sale or a license, it can be determined that the collection was sold rather than licensed to Softman.  This is done considering the financial issue of the transfer.  In this case, the collection was obtained at a particular time for a particular price.  Moreover, there was no particular agreement requiring that ownership of the product expires at the end of a certain period of time.  The distributor essentially paid for the ownership of the product and accepted risks accompanied by its use.  Consequently ownership of the product is transferred from the owner to the distributor.  Being the sole owners of the product and not bound by EULA terms, Softman can therefore distribute single copies of the software.


In the case of Adobe Systems and Stargate Software Inc., Stargate obtained Educational versions of softwares from Adobe which required them to sign an Off or On Campus Educational Reseller Agreement.  This agreement explicitly laid out that the distributor is bound by a licensing agreement contained in the package.  The signing of the agreement is a form of consent, which binds the distributor to the terms as a licensed individual and not an owner.  Consequently, in this particular case, Stargate is not the rightful owner of the adobe software.  Adobe does not give ownership interests in these case rather only licenses the distributor.  Moreover, the restrictions imposed by Adobe to limit redistribution indicate their intention to license rather than sell their product.  This distinguishing feature in this case is the signing of the OCRA agreement, which explicitly determines the distributor as a licensed individual and not an owner.

According to the first sale doctrine, once ownership of a product is transferred from the original owner, the original owner ceases to have distribution control over the product (Keenan & Riches, 2007).  Consequently, this rule applies to this case in that once Adobe relinquished ownership of the software to Softman by indirectly selling it to them they ceased to have any controlling interest in its distribution.  In this case therefore, Softman does not infringe on ownership rights of Adobe by redistributing the product.


Adobe essentially failed to protect their own ownership interests by not clearly laying out the terms of a sale or licensing agreement in the case between them and Softman.  Moreover, they also failed to consider the limitations to the EULA requirements for particular users.  Software vendors therefore need to reconsider their negotiating terms when dealing with distributors by among other things ensuring it is clear whether the contract is a sale or a license and what distribution requirements the distributor is bound to (Keenan & Riches, 2007).

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