Programming Note: Independence at Hand
Quest Software to become a property of Dell

Used MPE licenses may be yours to resell

The European Union Court of Justice has ruled that authors of software can't oppose the resale of used licenses for that software. One member of the 3000 community believes that there's a chance this could open up the exchange of MPE/iX licenses through legitimate sales -- with no HP participation required.

HP still operates a License Transfer operation for shifting MPE/iX installations from one server to another. The fee is a $400 charge. What's sometimes tougher is documenting ownership of a server to HP's satisfaction. Used hardware has been tied to MPE/iX software instances by HP even since a civil lawsuit determined in 1999 that the OS was like a license plate: attached to the iron registered to it until HP certified otherwise.

On July 3 the EU Court of Justice issued a legal interpretation against Oracle in a lawsuit that seeks to block UsedSoft GmbH. UsedSoft markets licenses that it has acquired from users of Oracle's software. The UsedSoft license buyers then download the software directly from the Oracle website. The EU court's directive defines "the legal protection of computer programs." The language below from a court press release seems to show that European courts register only a first-sale right on software. 

The first sale in the EU of a copy of a computer program by the copyright holder or with his consent exhausts the right of distribution of that copy in the EU. A rightholder who has marketed a copy in the territory of a Member State of the EU thus loses the right to rely on his monopoly of exploitation in order to oppose the resale of that copy. In the present case, Oracle claims that the principle of exhaustion laid down by the directive does not apply to user licences for computer programs downloaded from the internet.

"I wonder if this has any effect on the Stromasys and CHARON licensing program?" asked Tracy Johnson, former OpenMPE director, manager of 3000s for Measurement Specialties, and curator of the EMPIRE 3000 server. "If MPE licenses can be bought and sold, there may be some who will hold onto their licenses for a better deal."

Up to now, the MPE/iX license transfer process has operated as much out of tactical need as legal and ethical requirement. While HP was selling support, an unlicensed server wouldn't qualify. Even after support ended, HP's got the exclusive capability to transfer HPSUSAN ID numbers from hardware to hardware -- so the "new" HP 3000 essentially became "the server formerly licensed as" the older hardware.

HPSUSANs are important to the software vendors still selling and supporting tools and applications for MPE/iX. Most 3000 software won't run unless it can verify the HPSUSAN number the app or tool was purchased under.

But the ability to move MPE/iX on its own would be an advantage for Stromasys, in theory. Right now the world's access to MPE/iX instances is limited to the number of registered HP 3000s. HP stopped selling a "catch-me-up" license for the 3000s in 2010.

HP is in the unique position of licensing software which it no longer supports. The independent software vendors in the 3000 community tie their licensing to support. The lawsuit in Europe needs to pass through the German courts, where Oracle filed it against UsedSoft.

Moving software by resale is legal so long as the original copy is rendered unusable. "The directive authorises any reproduction that is necessary for the use of the computer program by the lawful acquirer in accordance with its intended purpose. Such reproduction may not be prohibited by contract."

Licensed HP 3000s sell for a higher price on the used system market today. But an unlicensed 3000 that could be paired up with a copy of MPE/iX might change that market. Much more likely is the prospect that the MPE/iX needed to power the HPA/3000 emulator could become more widely available. Considering all that HP needs to do to keep itself afloat this year, the outcome of resale of MPE/iX seems like a minor issue for the HP Development Company -- property rights holder to MPE/iX -- to pursue.

We hear that HP's got a little larger lawsuit it's chasing, against Oracle on behalf of its HP-UX futures.