Can a Daz customer sell his entire collection daz products to a friend legally. Yes or No?
Softimage_Graphic_Artist
Posts: 289
Can a person sell their entire DAZ Collection to anyone legally?. Or should I just delete my entire daz collection?
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It's my understanding that no you can't, and that is typical, but you should open a ticket to DAZ support and ask them.
From the EULA:
so no, you can't resell it.
Absolutely not. You do not own the models in your collection, you have bought the licenses to use them. From the EULA
Chohole, I'm afraid your response is incorrect. It doesn't matter if it's a license. Licenses can be bought and sold. Almost anything can be bought and sold. In fact, there are many rulings that have come out of late that non-transferable clauses are not legal and that the user CAN resell software licenses. Right now, it's the clause in the license that says it's non-transferable that prevents from reselling but that may not be enough. The real issues is that it's associated to a specific account if you want to redownload it and you'd need a physical action on the part of DAZ. But as to the legality of that clause, it appears that in the EU, such a clause will not stand up. Even in the US, AutoDesk made the same claim, that the user doesn't own a copy, but rather a license and they lost in court. The user was allowed to sell their license despite the non-transferable clause. Some Microsoft licenses can also be resold. It's a messy area of the law. If you read closer into it, judges don't even look at the "license" part if you can resell something. It doesn't even come up in the conversation.
https://arstechnica.com/tech-policy/2009/10/autocad-resale-ruling-a-messy-win-for-first-sale-doctrine/
Now, as to the question, is DAZ ok with users reselling their licenses? Clearly not.
Disclaimer: I am not a lawyer and nothing mentioned here can be considered legal advice. Seek a lawyer to get proper legal advice.
Legally... You should consult a lawyer...
Personally, there is nothing that actually identifies "you" as the owner, except your admittance of ownership.
Everything below is just MY personal banter... not legal advice, since this is a public forum.
You could delete all your stuff, but you still have access to it, by your account. (Even if you forget your information, they can figure out what account is yours, and reset it for you. I am sure that is also part of the reason they say it is ALSO unacceptable to transfer... So they don't have to deal with people selling accounts, then trying to regain possesion of the accounts after they sell it to someone.)
My sister buys stuff for "me" all the time, on her account. I have my own account, which is only all of the free things Daz has ever offered. I also buy things on her account, with my money. There is nothing identifying who the "I" is, when someone selects "I agree to..." For all they know, it is your friend who selected "I agree...", and you just paid for it all. :P
If you were out there buying people's accounts, and trying to resell them, to make money... I would worry about it. However, I don't think they intended the "lock-down" of an individual, "Tag-sailing" to a friend. It is "illegal" to re-sell CD's too... but no-one raids tag-sales and pawn-shops because they are reselling music CD's that they don't have the rights to sell.
If you are not going to use it... and you are truely surrendering it to another individual... no-one would honestly ever know, except you and them. But "legally"... Daz has expressed what it "desires" you to do... Which is to NOT attempt to "transfer rights to another".
From a legal stand-point... Like the guy who purchases/sells a used DVD or CD or BOOK or GAME ACCOUNT... it makes it a technical form of piracy. One that is not often upheld in courts, on a private "consumer" level. But, one that is sometimes upheld, or an attempt to uphold, on a "comercial level"... (Like with pirate-bay.)
Libraries are state and government owned and run, and have tons of copyrighted material bought and sold, without permission from the copyright owners, and distributed freely... Making copies on the state-provided copy-machines... You can't even protest it, in court.
It is also illegal to give gifts... "non-transferable rights", to a purchase...
Real muddy waters... A minor hits the "I agree...", that contract is not even legal... (in most places)... Yet, no-one is out there trying to sue companies for "trying to enter into a contract with a minor"... because they have no idea who is hitting "I agree...", which is the "legal grounds" they use in thier defence, as a company.
Kid/minor pirates... even more muddy...
Why do you want to get rid of Daz?
I am also not a lawyer and am not giving legal advice. That said: @AlienRenders, the precedent you cited was overruled the next year. The US Supreme Court then refused to review that decision, so that's what controls (... more or less). The first sale doctrine no longer controls software licenses.
That said, that's only about the United States. Other countries may handle things differently.
The Daz position is that licenses are to an individual and are not transferrable - if you wish to dispute that you need tot ake legal advice, no one in the froum can relax the terms for you however confidently they may post.
Every single order confirmation has the buyer's name, and address in it. When I need to prove that I have the license to use a certain item, I seriously doubt that anyone would accept an order confirmation for a non-transferrable license that is in someone else's name.
Well I have purchased about $4,500 worth of models from the DAZ Store. This was over a 4 year time spand. DAZ has a great user inter face and is much better that poser: however,
I have totally lost interest in DAZ and no longer have the time to play with these 3D Models. So I have decided ti delete my entire collection. This way I will be done I simply find sketching
and painting more creative.
Actually you would need to do more than take legal advice given the license terms DAZ gave you, you'd need to challenge DAZ in court on those license terms and win. You wouldn't necessarily need a lawyer to do it either, that's always been a misnomer, but lawyers are highly trained and a good one is well worth the money, if you have it. If you can afford oil painting though your personal time is probably more valuable that your $4500 loss in the DAZ Store or the cost of filing a suit against DAZ 3D. Even if you won the suit, you'd not likely get anywhere near $4500 in resale value.
You never know if you might want to come back, so it's not bad to keep your account and be able to download the models later.
If you are in the US they are very supportive of EULAs generally so I wouldn't try selling models.
I am also worried about that person that bought these items from you as they could get into trouble for using this content. I dare say it is kind of piracy.
Not "kind of," it clearly is. Can the person show proof of license that gives him the right to use the products? No.
If you just gave your account to someone, NEVER to personally use it again AND they never did anything
comercial with it...DAZ would not be able to tell. Lot of 'IFs' in there.
Being you have zero way to control what the next person does...don't do it.
copywrite infringement is no fun.
Your not 'selling' access to your game account, your trying to sell 'property' that you do not own.
You could always just ask Daz themselves, if they can manage a transfer of ownership. They are the ones who manage the account and the "best guess of who the owner is". (You)
The worst they could say, is No...
The best they could say, is Yes...
A more realistic reply, from Daz, would be... "Sure, if they pay us 20% of the value of all assets, and we take 20% of the remaining funds, giving you what remains of the sale, as your legal-release." Leaving you with 80% of what the other person paid for the total content. (Which would be, 20% of the original value. So they are still making the proffit, as if they sold the items themselves. Because I see most things go to 80% off, which implies that is what they expect to make.)
The "Buyer" and the "End User" EU-LA, are not always the same. It is called "buying a gift". I do not see a mention in the EULA, that says a person making a purchase, must be the end-user of the content. It is the person selecting "I agree", and that could be a minor, me, my sister, a thief who stole my CC info, my dog, an auto-clicker, a friend... Items installed through DIM, don't normally ask you to select "I agree", to any terms. They just assume it is the account-holder, and assume the account-holder is the ones agreeing to the EULA terms that are never displayed. (Key-word, is "assume". Which, legally, leaves the interpritation open to "testimony", of who is claiming the rights to said property.)
Same in a business. There is no "individual", "I"... The business is "I", but the "business" is not a person, it is an entity, and that individual, who represents the entity, may not be using the actual items. It is specific individuals, within the business, who use the items. (With no proof, other than the business testimony/records, themselves, saying, "He is an employee", and "We transfered rights to him".)
But, like I said, it can get MESSY... at the end of the day. If the original purchaser (you) decides they want to claim ownership, after selling the item, legally or illegally. The other person (one you sold it to) would have to prove that the item was a gift, or that they had legal rights to acquire, or "thought they had rights to acquire", said items. (Like a check that matches a date of transfer, as opposed to cash. Which the other person could say, "he hacked my account, I didn't give him access".) A game Daz surely doesn't want to play.
People buy me digital goods all the time. I can't even prove that half the stuff on my computer is actually mine. I couldn't even tell you who got half the things for me. Nor do I think they would remember buying them for me. (Not sure how many of those purchases were "of sound mind", or even "legal". That isn't my job, that is the sellers duty, who is offering the rights for the purchase.) :P {Now, if I were a business, that wouldn't fly in court. However, I am just a typical consumer, nobody, average-joe, end-user.}
When I go to work for people, I assume they have all the rights extended to me. Again, not my issue, at that point. I don't often find myself using anything Daz-related, in a work environment. (Yet) {Well, there is nothing that identifies things I am working with, as being bound to a Daz EULA... But they might be...}
I see it: "DAZ grants to User and User hereby accepts, subject to the limitations and obligations of this Agreement, a personal, non-exclusive, non-transferable license to use the Content"
Non-transferable means I cannot transfer it to another person. If you want to give a gift, give a giftcard, and the end-user of the content will buy the product for themselves.
You also mentioned a business as an entity. The license is a personal license, not a business license. It is tied to you, the person, not your business.
Of course, if Daz is willing, one can make a special contract with them. But the general EULA is pretty clear about not allowing you to sell or give your content to anyone else.
And the "User" (end user), is???
Bob, Joe, Mike, Sue, His friend...
Again, there is nothing saying the "Purchaser", is the "End-User", only that it is the "User" (End-user), who has the agreement. Courts have already decided that a "check-box", "I agree", is not a sound "user agreement", because it does not identify who the "User" is. (Like a signature, a fingerprint, a photograph, a voice recording, a notarized agreement.)
When presented with an actual EULA, on an item that my sister purchases, or that I purchase with her permission, using her information... I am the one clicking "I agree". I am also the "User" of the content, which makes me the one the EULA is bound to. (Again, you are missing the point that Daz doesn't actually KNOW who the End-User is, unless you explicitly tell them you are the end-user. They can't contest it, as they don't have any recorded proof of who the "end user" is. Because they never ask for any form of "end user identification", like a signature, photograph, voice recording, notarized initials, etc...)
{For a business, they might. I don't know about those licenses, because I am not a business, nor do I have any interest in being represented as one. Such high restrictions, from what I can tell, for items they can't even proove are items they have rights to, other then "the creators testimony". I see similar/same items, in free repositories, public-domains, other sale-sites, all claimed to be made by someone-else.}
I am not trying to get him to evade any legal responsibility here... I am just stating that the reality is, they don't know who the end-user is. Who actually selects the "I agree" box, which is who/what it binds the agreement to. If the person was not legally able to agree to the contract, it is null and void anyways. (Like a minor, or a dog, or a bot, or some other person that is not the end-user.) In which case, the end-user would not even know there was an EULA. (Like in a business environment, or transfer of items. You are right, THEY would not have any legal rights, in theory, if there were proof of them NOT being the ones who selected the "I agree" box.)
https://www.americanbar.org/publications/communications_lawyer/2015/january/click_here.html
https://thelawtog.com/legal-status-web-check-boxes-contract/
The key things are... (User {who the contract is binding to} is "identified". Which, at Daz, is an "assumption", that the buyer/accountholder, is the "user". Which is not even legal to assume, as "gifts", are purchased by non-users, for a user. It would be legal to assume, {upholdable in courts}, if the only person who could ever buy an item, was always the user. But the agreement says, "EULA", "End User License Agreement", not "Purchaser License Agreement". Which has, "No legal form of identification of the user", recorded with the EULA-agreement. So, who is the "User"? The user is whoever you say is the user, or whoever claims to be the user, by law. Without that signature, photograph, ... ... {insert legal forms of contractual binding user-identification here.}, which needs to go with that "check-box agreement".}
They have half the requirements for a legally binding agreement, but missing the most critical half, the identification of the actual user, to which the EULA is bound.
The person buying the license is the user, since theya re the ones with the license. That's why gifts have to be handled via Gift Card. Allowing someone else to log in and purchase a license would not be permissible.
I agree, that is a great way to handle gifts, but it doesn't change the fact that the user is not identified. I don't even see the actual items identified in most of the EULA's. Like I said, "I buy things with my sisters card". "I am the one who checked the (I agree), on all items.", but nothing identifies "me", in the agreements, or on the accounts. (Plural, because my brother also has an account, which is mine, and my mother too, who is no longer alive.) But, in all instances, "I" am the one who selected "I agree", and I am the end-user. My only proof is my, still living, relatives, who will all, hopefully, testify/confirm, that I had permission to make the purchases.
Not to mention, the whole "expires after one year", is a deturant to buying a gift-card. There isn't even a valid reasoning to having it expire, other than to consume the remaining funds. (I thought all unspent funds had to legally be turned-over to the state, for an attempt to "return to the owner", before the state ends-up claiming them, splitting them with the company that turned them over. Guess Utah has a way around that.)
Like I said, the purchaser (paying individual), is not always the "User". It can't even be assumed, legally.
As I just pointed out, the user is identified - it's ther person buying the license. If you are purchasing through another account then the owner of that account would be the licensee, not you.
Gift cards do typically expire - though the time frame varies, the last Amazon card I received had a five year term. Once turned into store credit, however, they don't expire. I believe that the expiry date is required for accontancy purposes.
If this is true, DAZ might want to add to their EULA that the "User" is the person tied to an account used to purchase an item, not the actual person who paid DAZ for the item.
They are (or should be) the same person. You buy the content through your account and agree to the EULA before you can download, whether you use DIM or the Product Library or Connect (though I don't think there's been an EULA update since I started using Connect). It is necessary to have agreed to the license to have any rights to do anything with the content.
That's the thing, that is never specified in the EULA or the TOS unless it's very well hidden, and a lot of people use online accounts for multiple people to make purchases (where the person who actually paid money gets the item).
EDIT: not to mention the situation of people living in the same household where the first uses their card to buy the second an item on the second person's account, which is also not uncommon.
I always figured until now the person who was intended to get the license would be the User, if it's actually a matter of "the person who pays is always the User" or "the person who created the account used to purchase an item is always the User" or "only one single individual is ever allowed to access an account" then that really needs writing out in the terms.
The person who opens the account should be the person who agrees to the EULA and the person who pays for the content. That's how the accounts are set up.
I have never seen a mechanism here to prevent anyone from using an account set up by someone else nor does DAZ say accounts can't be used by multiple people which is why you have people further up the thread suddenly confused that they wouldn't own items they paid for.
How could they stop one person from fraudulently claiming to be another - I don't think we have the technology to read fingerprints through the screen or keyboard. It is, as with anything, the responsibility of the user to protect their identity. Again, I'm not sure what you want - the EULA is agreed to by the one person (who should be the person whose identity the account carries) and that person is not permitted to share content, so if someone else obtains their content or buys content in their name they are breaking the terms of use. It seems to me that you are starting from a position that is beyond the agreed terms and then arguing that nothing stops you from moving to a further illicit position, but the barriers are placed before you get to your starting point, not between the starting point and the extreme test position.
???
Two people using one account is not one person fraudulently claiming to be another. No one checks a box saying "my legal name is John Doe" and types in their SSN when they make a purchase. Companies that want all purchases made from one account to be tied only to one person place actual written restrictions that their stated "User" is always the person who created the account. Generally, they also state that a person should not allow anyone else to access their account and all activity will be presumed to be authorized by them on behalf of them. DAZ has not done this. If this is DAZ's mindset it needs to actually exist in the terms somewhere (soon, before more people continue to buy things like this).
People can not read the minds of DAZ management to assume they can't do something when no restrictions were made. Especially when the EULA throughout assumes "User" is the one who paid applicable license fees and makes no ties between ownership and account.
Where? This is not in the TOS or EULA.
No, I'm not. You are. The idea that only one person can use an account is the idea that doesn't actually exist in the terms (yes, I agree, this is very very weird and not typical of a digital content company). Being able to use content upon payment is in the EULA.
I have no idea where you're getting the idea I'm suggesting people should use an account to get around the EULA. Infinite people can agree to the EULA infinite times apiece on one account and it applies on download and use. The EULA does not somehow apply only to one person who makes use of an account. If George and Jane each use the same account to buy things they are both equally bound by the license agreements for the things they purchased.
I wouldn't do this personally because it would be a pain to keep track of my purchases vs someone else's, but as long as no one uses content they didn't pay for, no one is breaking terms that actually exist. Which is why I am suggesting if DAZ management intends for this interpretation, they need to get a move on and clarify the EULA and/or TOS to reflect what they mean.
I stand by my last reply.
It's different state-by-state. I've used cards that were more than five years old (and my wife at least one that was more than a decade old) just recently, in fact. The way they usually get around that is to charge "x" amount per month from the existing balance after a minimum one year after it was last used. In Washington (and several other states nearby IIRC), an unused card cannot expire as a matter of law. Even theones that have been used can't expire unless they include some sort of language similar to what I mentioned above.
Store cards don't appear to have that option, but those with Visa (or other similar) logos generally have it in their own terms of service. They also have an expiration date printed on the card, for which one must either trade in the card they have for another at a loss if they want to keep any of that money.
Again, dependent on the State in question, that might not be an option.
As for transferring licensed digital goods, I've been reading these EULAs for years, and I have never seen a commercial license that allows for transfers. Rare are the exceptions that get made, and under normal circumstances only when the licensee falls over dead on a case-by-case basis. I expect that may change in the forseeable future, as the situation starts cropping up more often. Sooner or later, someone's going to have the time, energy, and (most importantly) money to put a EULA to a legal test.
I will be incredibly entertained to see how that comes out. In the meantime, DAZ's EULA stands.