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Federal Court Says First-Sale Doctrine Covers Software, Too
New10k writes "The US District Court in Seattle has rejected Autodesk's myriad arguments regarding its software licenses and found in favor of eBay seller Timothy S. Vernor. The ruling started by ruling that Vernor was within his rights to resell copies of AutoCAD Release 14 he got in an auction. Once the court settled the legitimacy of reselling, it used that ruling as a lens to dismiss all of Autodesk's various claims. More than once the court described Autodesk's arguments as 'specious' and 'conflicted.'" Autodesk managed to have Vernor's eBay account pulled, after he listed for sale copies of AutoCad 14. He sued Autodesk in response.
This article goes into more detail about that. Apparently his eBay account was restored (and good thing, I would be livid if I had a 10k+ feedback powerseller account taken from me)
A similar ruling is in effect in Finland since a number of years. The case was vs. Microsoft, decided by the supreme court that reselling MS Windows licenses is perfectly OK and Microsoft can't stop it. Don't have the reference handy, sorry.
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I just read this article. The author has no idea what a summary judgment motion is, nor the significance of having it denied. Summary judgment motions are just long shot motions brought early in a case to try to dismiss it if there are no facts in dispute. The significance of a *denial* of such a request simply means there are facts in dispute, or the law isn't so clear. IT IS A NON-EVENT. Nobody has won -- the case simply proceeds.
I can surely attest to this. While in school for CS, I was a junior administrator in the MIS department, doing things like... well, everything that went wrong on the computer network. We dreaded when anything went wrong with Autocad. It was a bloody nightmare. Dongles would just stop working and their customer support would pretty much tell us that we were lying and trying to pirate the software. And it was like talking to a brick wall. No amount of sales receipts or serial numbers mattered. They didn't even care. Their solution every single time was to "Buy a new copy".
On top of that, upgrading almost never worked. It got to the point where an upgrade to Autocad meant loading up a new system image, then installing it first before anything else.
"When life gives you lemons, don't make lemonade. Make life take the lemons back!" -- Cave Johnson
That act is specifically prohibited by the Copyright act. (At your discretion of course).
See http://en.wikipedia.org/wiki/First-sale_doctrine
Sig Battery depleted. Reverting to safe mode.
Skirting this by saying the key allows you to create an account and that the account is non-transferable is bogus as long as the key can only be used to create only one account.
I did buy a "like new" copy of WoW on ebay a couple years ago. I was a bit put out when the key was rejected due to having already been used. After reading the EULA thoroughly (not that I agree to a unilateral after-purchase change of conditions), I argued with Blizzard about my non-working key. After talking with a lawyer friend, and him sending them a letter, they sent me a new key.
One of they key points in their EULA was the paragraph:
You may permanently transfer all of your rights and obligations under the License Agreement to another by physically transferring the original media (e.g., the CD-ROM or DVD you purchased), all original packaging, and all Manuals or other documentation distributed with the Game; provided, however, that you permanently delete all copies and installations of the Game in your possession or control
The key is part of the "other documentation" and must be transferred to the new owner. Preventing someone from using it just because they are not the original owner of it is contrary to the first-sale doctrine.
Furthermore, there is nothing in the EULA indicating any possibility that the key cannot be used by its rightful owner. The only place that is mentioned is the Terms of Use which are displayed when you go to use the key. Prohibiting subsequent owners from using the key completely destroys the intended use of the software, so should not be allowed as long as first-sale doctrine principals apply.
Edward Burr
Having a smoking section in a restaurant is like having a peeing section in a swimming pool.
This blog entry by William Patry adds quite a bit of background.
Patry is Senior Copyright Counsel for Google.
Cisco has always claimed that when you buy a new router or catalyst switch from them that the IOS license is only good for the original purchaser of the hardware. You can legally sell the h/w as used equipment to another party later, but cannot legally transfer the firmware license to the buyer, they are supposed to have to re-purchase the IOS license again from Cisco, else they are illegally running it if the used router or switch came with the IOS software still present in its flash memory.
This post clearly shows that someone doesn't understand either the First-sale doctrine or the reason why libraries can lend out books and movies for free. I suggest no one listen to the nonsense he put out. The rental company has no right under the First-sale doctrine to rent the person's video if they had no permission to do so. Since this rental company is also clearly not a library they are not covered under the same protections afforded to such institutions. The AC, if their claim is real, should use his status as the copyright owner to stop this violation of his rights.
Do you think your local video store has a contract with all the movie studios?
Actually, they do. They buy their copies of the movies through a distributor who acts as the studios' agent.
-jcr
The only title of honor that a tyrant can grant is "Enemy of the State."
Pardon?
This is exactly the sort of thing you can do under the first sale doctrine. First sale exhausts the distribution right. (except for software and music. See Section 109(b)(1) of the copyright act.) And, renting is distribution.
You can install WoW from your friend's disks, but when you go to create an account, it makes you enter your own CD key (plus the key for any expansion you want to activate). They could remove this requirement and it would indeed work as you describe, but for now Blizzard expects to get money for both the software and the account fees.
Certainly more than a non-event.
The denial means that if Vernon's version of the facts are correct, he wins. The only question is whether his version of the facts are correct.
The case still goes on, but the opinion is good precedent for future cases with similar facts.
This isn't a matter of keeping a copy. US copyright law already states that if your going to sell your copy of computer software, you have to sell all copies of it.
The laws covering computer programs Section 117 a 1 and 2 say that you can make a copy of the program as an essential step in using it (a fancy wording for installing it) and that you have to destroy or transfer the copy with the program is you sell it.
(a) Making of Additional Copy or Adaptation by Owner of Copy.-- Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
So in the case of the little guy, or any guy, keeping a copy of the software without the copyright holders permission is still a violation of copyright. With this ruling, no one can install a copy of software then sell the product on ebay without removing it from their computer first. The little guy needs to do nothing because he is still in as much control of his work as the copyright law originally allowed.
how about if the little guy writes software, and everyone who buys it goes straight to ebay and resells it, without uninstalling...
then the little guy is out of business...
Um, where are you getting the "without uninstalling"? That has nothing to do with this case or TFA.
This court case says that if I buy a copy of Windows Office and decide I don't like it, that I can uninstall it and sell it to someone else. Previously, software companies had been trying to claim that even after uninstalling the software and destroying every backup copy, you still couldn't sell the original CDs.
With all due respect, I will have to agree with Cinnamon-Roll guy (my family, too, was involved with independant video rental business in the late 80s through the 00s).
Where I believe you are somewhat incorrect is that, in the catalog you saw, you saw prices higher on items not released for "general sell-thru". Recall back in pre-DVD days, many videos were available for rental only first (for a few months). This was because of the artificially high markup (around $100 a tape, circa 1998). Consumers simply wouldn't pay it. When the need for rental stores to buy 10 or 15 copies died down, it went to sell-thru. This was how the movie companies countered the rental market at the time. Interestingly, this was primarily brought about by the stores selling their used copied once the need to have a lot of copies of something died down. To the rental houses, the studios argued they had to make their money somehow, and it wasn't fair to sell a movie out for initial rental for just a few bucks and have it sold for nearly that much used.
Exceptions were made (think Disney or something that was thought to be a major-selling video, like "Titanic") - and for those that the consumer paid $19.95 for, the video stores paid about $15.
Agree: it did make for some fun explanations why that new release that baked in the hot (Michigan, in my case) sun in their car was $125 to replace, when they were used to spending $20 for a tape. It's all about the timing.
The germane point here is that they weren't paying a special licensing fee or anything to the studios (though, in later years, Blockbuster and Hollywood entered into "revenue sharing" agreements that allowed them to get a jillion copies of a movie) - they were simply paying an inflated price set by what was essentially a monopoly for a particular title: the studio.
Actually, its not a CD key with most MMORPGs, its an account key that you get. I can install any of the MMOs I have on any computer I want, but I have to have an active account (determined by my registering the key the first time I play the game) to do so. If you have City of Heroes/City of Villains, Star Wars Galaxies or Age of Conan on your system, I can use your computer to log into my account and play any time. When you buy MMO software, what you are buying is the license key for an account, plus any other stuff that came with the box in the way of manuals, maps, in game bonus items etc. The contents of the CD are there but not tied to the account directly in any way. Since you *MUST* log into one of their servers to play the game, this system is enough in the way of security in most instances. The only problems come when someone manages to find out how to generate their own keys, in which case they may register their account with the illegitimate generated key before you can do so, in that case the person who can send in the manual with the key on the back usually gets awarded the account.
"The first time I got drunk, I got married. The second time I bought a chimpanzee, after that I stayed sober" Arian Seid
They already have the PLU, which is just ONE way to create an extreme hassle to would-be second-owners, and a deterrent to first-purchaser resales.
Basically, the PLU, or portable license utility, is installed with every protected Autodesk product. Well, at least with AutoCAD. After you register and authorize your licensed copy (electronically or over the phone, etc), the PLU ties that license to that machine. If you install and try to run another instance of the software on another machine, or even reinstall on your own after a total disk wipe, you'll have to re-register or at least get re-authorization.
http://discussion.autodesk.com/thread.jspa?threadID=608297
http://discussion.autodesk.com/thread.jspa?threadID=478591
http://www.autodesk.co.uk/adsk/servlet/item?siteID=452932&id=6005296&preview=1
http://www.cvis.com/MP/Using_the_Portable_License_Utility.htm
http://www.tovna.com/main/softlock.htm
http://www.cadforum.cz/cadforum_en/qaID.asp?tip=2396
When you want to legally for a day or a week or whatever transfer the user activity from one machine to another, you activate the PLU, specify the target machine to which the license is to be sent. When done, do the same on the current machine to get the license back to your original machine. If you botch it, you've got to call Autodesk. Botch it TOO many times, they'll forever deny re-authorization for that particular license.
If confused, contact Autodesk, or go visit the AUGI and other sites.
I don't particularly have a problem with the PLU. But, if the PLU is used to deprive resale by legitimate license holders who want to dispose of the product and maybe use a competing product, then "locking in" the user is heinous. I use AutoCAD for WORK. But, for my hobby, I use TurboCAD and Punch! ViaCAD and marine products meant for ship design. AutoCAD 2009 and even 08 have some nifty features, but about all I don't like about TC & VC is their pseudo-command-line is limited to single strokes, not multiple characters. That makes me think AutoCAD has some "patent" lock or threat against other CAD companies attacking AD on the command line. If that is TRUE, then that'll be yet another reason for me to continue using the smaller guy for my non-work activities.
Previously: "Linux... Toward the Sunrise..." Now: "Linux... Toward the-- No, now, part of Every Sunrise"
So first sale doctrine under copyright law is a statutory law hence you can not write a civil condition of contract that will infringe that law, you can of course still do it but, when challenged in court that contract can then be voided.
When it comes to computer games it does make it very interesting fro a bunch of companies that only allow one of a registration of the game or a limited number of installation possible, as that does infringe upon a person right to sell the game when they no longer want it.
Currently the real problem is that government consumer protection authorities are completely failing in their duty of responsibility in ensuring a lot of this crap is nipped in the bud, in actively prosecuting companies that write criminally deficient contracts. Corrupt governments pandering to corporate interest have stripped away all power from consumer protections authorities, so that corporations can write criminal contracts and then force consumers who want to challenge them, to spend large amounts of money in court in order to do so.
Chaos - everything, everywhere, everywhen
*Ahem*
.001".
NO ONE* is designing in 2D anymore. Creating isometric and orthogonal views? What a complete waste of time.
You must be one of the idiot engineers that I have to deal with on a daily basis that thinks I can pull GD/T out of my ass from a 3D model.......on a 2D piece of paper. As a machinist and engineering student, I see all this idiocy all the fucking time. EVERYTHING you design has to be manufactured, and the most important part of the manufacturing process is the measurement, the tools for such making up 3/4 of a machinist's toolbox. What you should be saying is that nobody is NEEDLESSLY designing in 3D. The majority of parts you will see as an ME will be rather simple, and much easier to design in a 2D environment, and MOST importantly, easy to read by the manufacturing staff that is going to fabricate them. Yes, there are contours and surfs that need to be designed in a 3D environment, but that is a tiny minority. The most prevalent CAD/CAM package on the market is primarily 2D with a robust 3D package that can be used (albeit painstakingly) to render the odd surf here and there.
Isometric and orthogonal are there for a reason, they're going to be the basis from which the part is manufactured. So unless that fuzzy-bunny-lala-land in your head comes to fruition any time soon, you're going to need them. At least, if you've even learned basic blue-print reading. The most common recurring problem I've seen with prototype and small run manufacturing is that the engineer isn't even drawing up the blueprint. Nine times out of ten he doesn't even know how. He designs the part and some poor CAD-Tech transfers it to a block blank, inevitably making mistakes along the way, and %90 of the time making the part more expensive by virtue of setting tight tolerances where they don't need to be. The %10 of the time the ME does know basic blueprint reading, he still makes the part needlessly expensive because he never spent any time doing assembly, and thinks that he needs bolt hole locations within
This "New-School" elitism of yours is the reason a kid like me--who is working the old-school to get into the new-school--is going to be your boss, making twice your salary, at half your age. Old technology is not bad as long as it's proven.
Of all the Universal Constants, here's one I know: Nice guys finish last