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Court Says First Sale Doctrine Doesn't Apply To Licensed Software
An anonymous reader wrote to tell us a federal appeals court ruled today that the first sale doctrine is "unavailable to those who are only licensed to use their copies of copyrighted works." This reverses a 2008 decision from the Autodesk case, in which a man was selling used copies of AutoCAD that were not currently installed on any computers. Autodesk objected to the sales because their license agreement did not permit the transfer of ownership. Today's ruling (PDF) upholds Autodesk's claims: "We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions. Applying our holding to Autodesk’s [software license agreement], we conclude that CTA was a licensee rather than an owner of copies of Release 14 and thus was not entitled to invoke the first sale doctrine or the essential step defense. "
This is going to mean bad things for all the rest of us.
Wait...what? Seriously?
Many industries have been trying for literally decades to prevent used or second-hand sales...but parts of the software industry are the ones to actually do it? Huzzah. That's so awesome. Thanks for fucking us over once again. Guess what people will do when they can't buy a used copy and don't have money for a new copy?
Yaargh.
Living With a Nerd
This is a ruling that is going to spur a lot of changes to software vendors.
*everybody* will end up being "a licensee" of the software, and you will no longer own anything.
And yes, this will extend to FOSS as well... licensing through copyright is still licensing....
Do these judges even understand the enormity of their decisions?
Support FSF: Stop thinking with your wallet, and think with your imagination. (cc/non-commercial)
Whatever happened to copyright as it was originally made that copyright was a compromise between consumers and producers. In exchange for giving up the right to use materials how we wished we gained a few key rights among them were limited copyrights, fair use and the first sale doctrine.
Now, while producers now have more power, consumers have less. We no longer have limited copyright, fair use is being systematically eliminated and now the first sale doctrine is being challenged.
A free market works on balance on both sides of the scale, producers and consumers both have rights. A producer has some rights to screw customers but customers have rights to balance that out by being able to screw producers in numerous ways. But that balance is being broken with copyright.
Taxation is legalized theft, no more, no less.
You buy something (and you *are* buying it, because the "agreement" isn't presented before the sale.)
You try to install it, and disagree with the EULA, so press "I disagree", and the software doesn't get installed.
You then sell it to try to recoup some of your lost money.
But you can't, because the *agreement*, which you did not agree to says you can't.
The USA is officially the most fucked country on earth.
It will be interesting to see how this plays out. If this ruling holds, the used video game market is on its last legs.
Makes you wonder if the software vendors have any grasp on the idea that the license having some value as a second-hand sale item is what allows them to charge such exorbitant rates in the first place.
Unless you like living as a Serf of the Corporations who aren't even MENTIONED in the US Constitution, it's time to consider revolution.
-- Tigger warning: This post may contain tiggers! --
That really, truly, SUCKS!!
No sigs in BETA. Beta SUCKS.
But it fucks up the entire point of copyright. The entire point of copyright is that it is a compromise that is the only way it works as intended. There are 3 main rights consumers have under copyright, one is limited copyright which has been eliminated, the other is fair use which is being challenged and the last one is first sale doctrine. Those 3 rights should never be able to be changed in any license. If I say my copyright is good for 10,000 years, that isn't enforceable right now because copyright doesn't extend that long (yet) so that point is null. A contract isn't legally binding when it contains illegal material, if a license breaks any of these 3 rights, consumers shouldn't have to follow those just like I don't have to follow a contract that says to steal $50,000 from a bank.
Taxation is legalized theft, no more, no less.
This sort of licence will start to fade as more and more Open Source projects attain "enterprise quality".
Good luck with that. Everything from Starcraft 2 to your small business accounting software has a click through EULA. FOSS is great, but its not going to fill every niche ever. Its progress in accounting is glacial. And while there are FOSS games, the bulk of major development is and will remain proprietary for the foreseeable future. That is just 2 examples.
For another example -- while FOSS forms the guts of most Virtualization schemes, the proprietary software you need to pile on to really work with them in a serious way is not at all threatened by FOSS alternatives.
Tell these software houses that still use this sort of licence to hit the road.
If you can afford to stop using proprietary software great. Most of us don't really have that option.
One more reason not to pay ANYTHING for proprietary software or content..
It is worth nothing when you need to resell it, why should you pay more than nothing for it in the first place?
Yes, but the vast majority of decisions by the 9th circuit court are not overturned, so that doesn't mean anything. Obviously the law isn't clear in this matter (otherwise it wouldn't have gotten this far), so it is anybody's guess what the Supreme Court will do.
It kind of makes sense, you should be able to license software to somebody, just like you should be able to rent a car to someone. The problem is (in my opinion) it should require more than a EULA stuffed in a box, or that you click on, to bind you to such a contract. If you sell something by selling it like an object, people are going to have a reasonable expectation that they bought it.
Qxe4
Used "Iron Man" DVD case for sale: $6.00 - DVD thrown in for free!
RIP America
July 4, 1776 - September 11, 2001
Name any other contract that one party can't even look at before money changes hands. Obligatory Car Analogy: You hop into your new SUX-2000, turn the key, and are notified that before the engine will start you have to agree to to have your car serviced exclusively by SUX dealerships. And they never mentioned this during the purchase process. How could that possibly be legally binding?
Never let a lack of data get in the way of a good rant.
... be willing to offer a complete refund on any opened software if a person doesn't agree to the license?
File under 'M' for 'Manic ranting'
If they are going to disallow sale of licensed software, then unlicensed software (read: pirated) can easily have more value to a user than the licensed work.
I'm not saying that the increase piracy is justified, but it's an inevitable result.
File under 'M' for 'Manic ranting'
Suppose you buy an expensive piece of industrial equipment. Once you get it home, you open the box and an EULA falls out. It says you didn't buy the device, you licensed the ability to use it. It says you may not sell the device, or return it for a refund, it is yours now once and for all time. Further, you agree that you can't sue for any injury that happens, even if such an injury is a result of a defect in manufacturing.
How would that be any different? How would that be at all legal, based on existing contract law?
Libraries are now required to predict, in advance, which video games and other licensed media will be culturally significant in the future.
If they fail to buy a copy of a product while it is on store shelves, there is now no legal way for them to preserve it for posterity, since the people who did buy it are not allowed to transfer ownership.
Ah well, back to reading the works of authors like Shakespeare who were somehow inspired to expend massive effort on creating amazing intellectual works despite the lack of any effective copyright protection whatsoever. (Still waiting for you to explain that, copyright lobby ...)
Try taking software back to a store. Say you didn't like the license and want a refund. They'll tell you "No refunds on opened software, exchanges only." Of course you can fight that but it takes time and money.
No wonder. No other court is filled with more ignorant and corrupt judges.
When Fascism comes to America, it will call itself Anti-Fascism, and tell you to give up your guns.
I guess in my opinion CTA is the one in the wrong. CTA broke a contract, not Vernor. I could agree with CTA getting sued for the ~3k/seat for their ill gotten copies (plus punitive, etc). As I see it, the sold software was not illegal for Vernor to buy and resell, but was illegal for CTA to sell.
I'm curious to know if the same rules should apply as to passing on endorsed checks as software, where no matter the interim steps a legally signed check is still valid by whoever cashes it in (i.e. interim illegal activities don't make the check null and void).
Clearly I am not a lawyer...
And of course, you've got to be careful; the last time that was tried, we got UCITA, which would have been even more one-sided against people.
That seems to be the major problem with any kind of reform, nowadays. As soon as you start the process, special-interest types immediately being to try and corrupt it. I see a lot of things wrong with the patent system, for example, but I'm afraid that any attempt by Congress to "fix" it will leave us worse off than we are now. After all, they're the outfit that got us into this mess, I see little reason to trust them to make amends.
The higher the technology, the sharper that two-edged sword.
George W Bush, who appointed 2 of these 3 judges, is suddenly a liberal?
If software publishers are going to demand abhorrent use terms, then shouldn't their terms be on the outside of the package so that the buyer has the ability to make an informed purchasing decision?
Orwell: "In a Time of Universal Deceit, telling the Truth is a Revolutionary Act"