2. The facts in this case are not insignificant: An Autodesk customer upgraded its installation, paying a heavily-discounted price (~87% discount) for copies of the new version. It then sold its copies of the old version to the "reseller," along with a handwritten copy of the license codes. See the court's recital of the facts at PDF page 6 of http://www.ca9.uscourts.gov/datastore/opinions/2010/09/10/09.... I wonder how many HN readers would want their customers doing that?
The facts of the case are that software is being Sold, with a capital S, at retail stores in exactly the same manner as all sorts of goods are sold, and that in some fine print which is totally unavailable to the purchaser at the time of purchase, the software creator is then retroactively revising the agreement to be only a time-limited, restricted lease rather than a sale..... and the courts are buying that argument.
I certainly understand your point, but 25-plus years of "custom and usage" have made it hard to argue convincingly that purchasers don't know there's a click-wrap EULA. [EDIT: Enforceability of the EULA is usually predicated on the purchaser's having a reasonable period, usually 10 days or so, in which to return the software and get a refund if the EULA's terms aren't acceptable.]
The danger of the "Sold, not leased" approach is that vendors likely would stop offering such steep discounts for upgrades. Getting an upgrade would be be like buying a car: You want the new model, you pay the new-model price; and sure, by all means do whatever you like with your old model.
Car dealers usually take trade-ins. The upgrade model is essentially equivalent, but might need to be tweaked in a legal/technical sense. It would be more ethical than clickwrap agreements that could contain anything.
Agreed - one can't really express a naive ignorance of such matters at the same time as profitably reselling software whose value depends on limited availability and high pricing.
Of course, it might turn out to be a blessing in disguise; if manufacturers found customers indifferent to small upgrades at full price, they might release new versions less often but include more significant improvements than is usual at present.
Technology exists to invalidate the old license so this scenario wouldn't be possible. Autodesk would simply null the old key when an upgrade is purchased based on it.
2. The facts in this case are not insignificant: An Autodesk customer upgraded its installation, paying a heavily-discounted price (~87% discount) for copies of the new version. It then sold its copies of the old version to the "reseller," along with a handwritten copy of the license codes. See the court's recital of the facts at PDF page 6 of http://www.ca9.uscourts.gov/datastore/opinions/2010/09/10/09.... I wonder how many HN readers would want their customers doing that?