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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Whatever happened to copyright as it was originally made that copyright was a compromise between consumers and producers.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.
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.
OTOH piracy will gain a boost.
The Kruger Dunning explains most post on
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.
I wish this wasn't modded flamebait. You folks should realize that revolution doesn't necessarily mean flag burning and civil war. It does mean that you have to gather enough popular support to oust the current government though.
Revolution CAN be peaceful. It will always cause upheaval, but if the system is broken enough, it needs to be thrown out and rebuilt.
Not that I'm saying its necessarily time for Americans to do so, or that this is the sort of issue that should cause a revolution, but there are more than just this fellow that seem to feel that one is necessary, on both sides of the political spectrum.
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.
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...