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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
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.
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.
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.