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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. "
It would be good once and for all to find out whether or not EULAs (especially ones that do not appear until after the software is open) are enforceable. I would prefer all contracts require written signatures, as well as modifications of such, so that companies can not arbitrarily change clauses willy-nilly even if the contract has wording to allow such. (Think cell phone contracts, I never signed anything). First sale should be first sale, period. On the other hand, I am afraid as to what the Supreme Court would rule in such a decision.
Rhymes that keep their secrets will unfold behind the clouds.There upon the rainbow is the answer to a neverending story
Starting tomorrow, every movie release will come with an EULA.
If we are just a licensee, then that means they can't sue for intelectual property theft. It went from 'breaking and entering' charges to 'trespassing'.
What if you bought the software, and since you weren't presented with the license before sale, try to sell it after not agreeing to the license and not installing it on your computers?
"There is a way that seems right to a man, but its end is the way of death." Proverbs 16:25 (NKJV)
No. We need them to add it ASAP and push the issue hard.
This is one of those "on the internet" type things where the judges are missing reality because they are not seeing it in a familiar context.
Push the license for books, CD's, cars, clothing, everything you can.
She was like chocolate when she drank... semi-sweet at first and then increasingly bitter.
In Canada software has always been viewed as a license. So are movies and music.
The law does not allow companies to place restriction on the lending, or selling of a license. Please note I said companies, governments for obvious reasons do not allow this for things such as driver's licenses.
This law is the basis for why downloading a file from a P2P network, or other source is not illegal. The license is for using the material, so you have not committed a crime until you use the material without a license.
For example, if I have All My Loving on a Beatles record and I download the MP3 and listen to it, that is perfectly legal. If I downloaded and listened to Poker Face which I don't have a license to, that would be illegal.
Microsoft, Apple, Google, Amazon what's the difference? All steal money from devs and control with walled gardens.
Don't worry, they can't apply restrictions retroactively. You'll always be able to sell everything you have now, the question is about things you buy in the future. Just keep an eye on Slashdot and you'll see if anyone tries this BS with books, CDs, DVDs, etc. When that happens, simply don't buy those goods.
Finally, even if you do buy goods licensed that way, you can still sell them, just not in the USA. Look for some type of Craislist-type site in Europe or elsewhere, and sell your stuff there. As long as Customs doesn't open it to inspect it, you should be OK.
However, when it does come to that point, you'll probably want to consider simply packing up and moving out of the USA, because that'll be a sign that things are about to turn really ugly here.
CONTRACTS DO NOT WORK THAT WAY!
Contracts aren't something you can trick someone in to, they aren't something you can say "By nodding your head in that way you agree to all this stuff." In general, a contract must have few things that an EULA fails at:
1) A contract must be an exchange. Contracts can't be one sided, they have to be an exchange. That's why if you do something like a quit claim deed (meaning you helped someone buy property and are now letting them have it) it'll say something like "For the sum of ten dollars and other valuable consideration I quit all claim," and so on. Even when the intent is to give something over, there MUST be an exchange for it to be a contract. An EULA just acts to tell you what you can't do.
2) A contract has to be prior to the exchange or sale. This is why you sign all the paperwork related to a home purchase before it is yours. That contract is only binding if you sign it before things happen. They can't sell you something and then say "Oh by the way, here's the contract." Sorry, too late. Same deal with prenuptial agreements. They are "pre" the nuptial for that exact reason. You can't tack on terms after something is done, has to happen before hand.
3) A contract must be open to negotiation. You don't have to accept what the other side proposes, of course, but you have to be open and available for it. You can't hand over a contract and then vanish. When my university signs a contract with MS or someone for a Software Assurance pack, there is negotiation. They send us the contract, our lawyers change it and send it back, they change it and send it back and so on. That has to be there, that opportunity. A contract cannot be a one sided demand, both sides have to discuss and mutually agree.
None of this is new or special, this is how contracts work, this is why things are done as they are. For some reason though some people, including the 9th circuit, seem to be ignoring that for software and saying "Sure it is perfectly ok to put a bunch of requirements on shit ex post facto, never mind that we'd never allow that for other situations."
I do not get this logic (or rather lack of logic).
Let's look at two scenarios. In one case, a person is buying a loaf of bread. In another case, a person is buying software. I'm not going to tell you which is which.
Scenario 1: person walks into store, takes [censored] off the shelf, carries it to cash register, pays $n dollars cash, does not sign or click anything, cashier places [censored] into a bag, and customer walks out of the store, carrying the bag.
Scenario 2: person walks into store, takes [censored] off the shelf, carries it to cash register, pays $n dollars cash, does not sign or click anything, cashier places [censored] into a bag, and customer walks out of the store, carrying the bag.
In which of these scenarios did a person acquire a license to use something, and in which did they become the new owner of a physical object?
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
Yes. It's a common tactic to ask for the moon and then fall back to your previously hideously unreasonable position and play the conciliator, willing to compromise so much.
The only reason to expect anything different at all is because patents are an artificial restriction and a country with them is going to get left behind by unrestricted competitors. Now that we're broke it's getting harder to force the world into ruinous treaties. At some point we'll be left with patented cats and the rest of the world will just cut us and our insane laws off until we starve.
I bought the physical media. I don't need a copyright license to do that. And now owning a "copy" (defined in 17 USC 101 to be the physical media), I have the right per 17 USC 117 to install and run the software on that copy.
Yes, you have that right. However, the vendor of that software is not (as I understand it) bound to give you that right, and laws such as the DMCA make it very difficult to legally install anything if the vendor has chosen to use copy protection. Basically you have rights that you cannot legally exercise and that a vendor can take away from you on a whim ... so for the government to continue calling them "rights" is, to me, just insulting.
... just get out of my face. I won't make illegal copies, but telling me what I can do with it after I've bought it will just get me to seek out alternatives. As this behavior becomes prevalent, when sites like E-Bay start taking down thousands upon thousands of auctions because the software was "sold" with a "non-transferable license" ... well. It just opens up business opportunities for companies willing to treat their customers will more respect. Look, just because something is perfectly legal doesn't mean there's a good business case for doing it, and squeezing one's customers too hard usually has consequences.
From a practical perspective, I have no problem with a corporation wanting to license their software to me, under whatever restrictions they care to place upon it. If I don't like them, I won't rent that software. However, this crap about charging the full retail price for a product under the false pretense of selling it is ridiculous. You want to charge me a nominal monthly fee for the use of your software, fine. I buy the item outright, and you give me the box with the shiny plastic disc in it
Seriously, this is going to present a better and better case for open source products, wherever viable alternatives to commercial shrink-wrapped software exist. That's not always the case, I know (don't want to start a GIMP/Photoshop flamefest here), but if I'm a big company that has traditionally resold old copies of major closed-source apps, I'd think twice before I buy the next version, maybe I'll look at what's out there before sending in that P.O. that, in the past, would have been a no-brainer. At the very least, corporations are going to be scrutinizing those license agreements a bit more closely in the future.
In any event, Congress needs to be replaced far more often than it is. Those fuckers are the ones that sold us out (and there's no other term for it.)
The higher the technology, the sharper that two-edged sword.
Probably.. however.. I would laugh my ass off, if it opened the software house to lawsuits for crashing your computer, destroying your data, and whatnot despite the release from liability in the license.
After all, if I own the software and am licensing its use, its my property interfering with and damaging other property of mine. But now, I don't own the software. The development house does. And its property is damaging my property.
I don't expect morality, equality, consistency, or justice from the law. I expect only legality.
So would this be a demonstration of GIGO in the legal arena? Logical steps (court process) arriving at a socially undesirable conclusion (prevention of resource transfer) because the initial parameters were garbage (allowing licenses to forbid resale for no reason other than to profiteer by artificially limiting resource availability)?
So the concession is that the copyright holders get to shaft us in a new way, and we get nothing? A compromise would be "licensed software doesn't have the first sale doctrine, but the license cannot be modified 'at will', preventing a licensed user from using their software entitles them to a full refund, licenses must be readable by people who didn't spend their youth getting a law degree, licenses should be fully available before purchase, if a EULA isn't agreed to a user can return it for a full refund to where they bought it, etc, etc". Hell, I'd settle for a copyright length that puts things produces when my grandparents were kids into public domain. This whole notion of "we should compromise" only works when dealing with reasonable actors. Corporations are not reasonable.
An absolutely brilliant point. And following up on that point, I went to their website to see how they phrased it, and indeed they are using the language "reasons to buy" and "review and buy" on their product pages.
The whores get mad when the sluts give it away for free.
We can ignore them altogether. Pirate, build heavily encrypted peer-to-peer networks, migrate from the "official" internet to the "dark" internet, until all that's left on the official internet is corporate advertising. Short of a police state, they can't force us to use the official internet, and the more they tighten their grip, the more people find it worthwhile to slip through the fingers into the unofficial internet.
And whichever one is the software cannot be used because the EULA hasn't been agreed to.
So what happens if I use it *without* agreeing to the EULA? Say I load up the installer in a debugger, click "I disagree" and make the software continue installing anyway. What if I make the EULA display something different (you know, just like a *real* contract, where you can strike sections out or amend it before you sign) and agree to that?
I believe that would be like whiting out sections of the contract after it was signed and carefully inserting your own text in the handwriting of the other party. IE, no way would that pass legal muster.
Couldn't you amend the contract as desired, sign it, and send it to the publisher with a note saying, "if you disagree, let me know"? Isn't that pretty much what the click-through-license does? Then if they disagree and let you know about it, you could resell the box.