Disney Sues Redbox, Hoping To Block Digital Movie Sales (marketwatch.com)

phalse phace writes: About 1 month ago, Redbox started selling through their kiosks slips of paper with codes on them that lets the buyer download a digital copy of a Disney movie.But Disney says that's a no-no and this week it sued Redbox in an attempt to stop the code sales. According to Marketwatch: "Walt Disney sued Redbox on Thursday in an attempt to stop the DVD rental company from selling digital copies of its movies. Privately held Redbox last month began offering consumers codes they can use to download a digital copy of a Disney movie. Redbox charges between $7.99 and $14.99 for slips of paper with the codes to download Disney films such as "Cars 3" and "Star Wars: The Force Awakens." That is less than those movies cost to buy and download from Apple's iTunes Store. Redbox is only offering digital copies of Disney movies because it doesn't have a distribution arrangement with the studio and buys retail copies of its discs to rent to customers. Those retail DVDs come with digital download codes."

Comments

First Sale Doctrine?

[Anonymous Coward]

Can't Redbox resell anything they buy, especially at retail?

https://en.wikipedia.org/wiki/First-sale_doctrine

Re:First Sale Doctrine?

[Anonymous Coward]

I doubt the digital license allows for that.

Re:First Sale Doctrine?

[HalAtWork]

They probably didn't agree to it so now they're selling it to someone else who will accept it

Re:First Sale Doctrine?

[BronsCon]

I doubt the digital license was printed on the packaging below the offer so the consumer could decide they don't agree with it before making the purchase and unwrapping the product which can't be returned once opened. In other words, oops, you should make it clear on the packaging that the digital downloads are non-transferrable so I have the option of not buying it if I was going to buy with the intent of transferring the digital download; otherwise, tough titties if I do unless you're going to take the damn purchase back and return the full price I paid including any tax or shipping.

In short: If you're going to apply terms to the use of a purchased product, those terms had damned well be available to me in full on the packaging, in which case my purchase signifies an agreement to those terms, or you had damn well better offer me a full refund if I don't agree to terms you didn't provide to me before the sale.

Put another way, there are protections on basically everything non-IP product you buy that say the seller can't add terms to the sale after the sale has occurred -- why the fuck should IP be any different? And yes, applying terms I can't know until after the sale is applying them after the sale, even if I might know there are additional terms -- because I can't know what those additional terms are until I've read them or had them read to me. Simply saying "additional terms inside" doesn't suffice because, for example, I may be willing to accept "you may not use the software contained within on another device" while I may not accept "we reserve the right to shoot you in the face from the top of a neighboring building with a sniper rifle as you exit the store after buying this". Of course, that clause would never hold up in court anyway; it was an extreme example, but you get my point.

I know the Supreme Court has upheld shrinkwrap licenses, but anyone with any critical thinking ability whatsoever can see how that decision was wrong.

Re:First Sale Doctrine?

[Anonymous Coward]

I highly doubt that will hold water. But I'd have to see what the included slip says but I doubt it would allow for the license to be transferred away from the physical media it's bundled with, for one.

Re:First Sale Doctrine?

[BronsCon]

I know the Supreme Court has upheld shrinkwrap licenses, but anyone with any critical thinking ability whatsoever can see how that decision was wrong.

I shouldn't post this early in the morning. The Supreme Court struck down the shrinkwrap license in the case that made it in front of them. And they were right to do so.

Re:First Sale Doctrine?

[networkBoy]

If it qualifies to be called a "Shrink Wrap License" then it holds water plenty fine. Just ask the supreme court ;)

Re:First Sale Doctrine?

[taustin]

There's quite a bit of case law (Softman v. Adobe, for instance), that says that doesn't matter. If it's a one time purchase, with an indefinite period of use, it's a sale of goods, and the first sale doctrine applies.

(There's also case law at the appellate level that disagrees with that interpretation. TFA doesn't say where this was filed, but I'll bet it was California, same district as Softman v. Adobe.)

Re:First Sale Doctrine?

[bws111]

But the 'goods' that were purchased are a box, some physical media, and a piece of paper with a code. If they were actually selling any of those things then first sale might apply. But they aren't selling any of those purchased goods, they are selling a COPY of one of the purchased goods.

Re:First Sale Doctrine?

[Anonymous Coward]

Doesn't matter if the slip of paper says "not valid for resale". It wasn't enforceable when printed on all those Sega Genesis cartridges, why the hell would it be enforceable now?

Re:First Sale Doctrine?

[Anonymous Coward]

It seems we have this same argument over and over every year... are you buying an actual digital product, or buying a temporary license to view the digital content?

The First Sale Doctrine applies if Redbox is paying Retail rates for the DVD+digital package. If that were the case, each package typically contains 1 DVD movie + 1 slip of paper with the digital download code from Movies Anywhere. The DVD, as a physical asset, is theirs to do with as they wish, but the digital code is murky. That case insert is a physical asset, but what is printed on that asset is a license to use a service.

According to the new Movies Anywhere Terms of Use,

You will not transfer, sell, or rent (or offer to transfer, sell, or rent) any Digital Copy codes. All Digital Copy codes are owned by Movies Anywhere, its affiliates, Participating Studios and/or other licensors and you may only use Digital Copy codes as specifically authorized under these Movies Anywhere Term of Use and the terms and conditions of the applicable issuer of each Digital Copy code that you use. The sale, distribution, purchase or transfer of Digital Copy codes outside of the methods set forth in such terms and conditions is strictly prohibited.

Secondly, it looks like Redbox buys some of their DVDs through Wholesale agreements (Sony, but not Universal) to purchase the movies in bulk (since they are buying 10,000 at a time). With this, they are paying a reduced rate per movie box. The Movies Anywhere is actually a Disney owned platform, through which other studios have agreements to host their digital content (merging what used to be Disney Movies Anywhere and Ultraviolet). That being said, the goal of any business is to buy low and sell high, so if RedBox can get these codes at a reduced rate and sell them at nominal rates, good for them. However, I'm sure that their wholesale agreements probably restrict their use of the digital content, since most typically do unless explicitly granted.

Re:First Sale Doctrine?

[BronsCon]

The First Sale Doctrine applies if Redbox is paying Retail rates for the DVD+digital package.

Secondly, it looks like Redbox buys some of their DVDs through Wholesale agreements (Sony, but not Universal) to purchase the movies in bulk (since they are buying 10,000 at a time). With this, they are paying a reduced rate per movie box.

From TFS:

Redbox is only offering digital copies of Disney movies because it doesn't have a distribution arrangement with the studio and buys retail copies of its discs to rent to customers. Those retail DVDs come with digital download codes.

Redbox bought these at retail and paid full retail price. They don't have a distribution agreement.

Re:First Sale Doctrine?

[bws111]

What license are you talking about? When you buy the disc, you also buy a piece of paper with a code to get a digital copy. The piece of paper is your license to get the digital copy. If Redbox were actually selling that piece of paper, THEN there could be arguments made about licenses and whether or not first sale applies. But they aren't doing that, they are making COPY of the piece of paper, and selling that. How would first sale, or what is or is not printed on the outside of the box authorize that?

Re:First Sale Doctrine?

[Anonymous Coward]

I don't see anywhere in the summary or article that states they are selling copies of the actual paper code. You have a source for your claim?

Re:First Sale Doctrine?

[Cajun Hell]

I'd have to see what the included slip says

If they aren't using the license, then there is no reason to care about whatever the license may prohibit or allow.

It's like a EULA that says "by opening this, you agree to this license." But if you don't agree to it before that, then you don't ever become bound by the "by opening this" condition. It doesn't apply until after you agree.

Even if most people are still gullible enough to buy into the "by agreeing to this, you agree to this" tautology, Redbox's professional lawyers shouldn't be.

Re:First Sale Doctrine?

[BronsCon]

There is wording on that slip of paper stating that it cannot be transferred or sold. That is the license to which I am referring, and it matters not one bit as you can't read it before you buy, anyway; the Supreme Court has already ruled on that matter.

The code itself is a fact and, therefore, exempt from copyright protection.

Re:First Sale Doctrine?

[Anonymous Coward]

If it's a one time purchase, with an indefinite period of use, it's a sale of goods, and the first sale doctrine applies.

This has a lot to do with why fewer big software companies (hello, Adobe and Microsoft!) are actually selling their software and more are leasing it via the "cloud" (aka Software as a [dis]Service).

(The latter also helps ensure annual rents, where otherwise a customer might be happy to keep using the same version despite new releases from the company.)

Re:First Sale Doctrine?

[Anonymous Coward]

Well, they claim to have printed twice on the outside of the box "Codes are not for sale or transfer." The insert with the code says the same thing. I know it's not like the shitty online journalism we have now would take the 30 seconds and pay the $1.90 so we could all read the fucking complaint, but sometimes reading the complaint answers a crapload of speculative questions.

I suppose you could argue that NO retail copyright license is enforceable, but that seems overboard.

Forgive my crappy choice of free services, but on copyright issues I have to be anonymous and can't use my vanity hosting:

http://www.filehosting.org/file/details/711345/Disney-v-Redbox.pdf

Re:First Sale Doctrine?

[Opportunist]

I did. The Supreme Court replied it has no jurisdiction in my corner of the planet and I should go ask someone who cares.

Re:First Sale Doctrine?

[BronsCon]

Ah, but what matters is not whether the Supreme Court has jurisdiction where you're watching from, but whether they have jurisdiction where Disney is suing Redbox; and they do.

Re:First Sale Doctrine?

[Anonymous Coward]

Except that transmission of that fact induces copyright infringement. And you can read it before you buy, the outside of the box clearly states, twice, that the codes can not be sold or transferred.

Someday I'll stop bothering to correct the knee-jerk anti-IP mindset around here, but I guess it's more fun to be right than it is to read a bunch of other people not being wrong and having nothing in particular to add to it.

Re:First Sale Doctrine?

[omnichad]

So if I buy an Microsoft Office Key Card online but don't activate it, I can't re-sell it?
What about a Windows 10 Retail installer with a product key?

Re:First Sale Doctrine?

[Anonymous Coward]

I didn't know boxes could turn words into law

Re: First Sale Doctrine?

[Miamicanes]

Disney could make a strong argument under 'equity' that bundling download codes with a physical disc as a freebie adds a small amount of value to the disc & takes away little/nothing from their potential sales, but a download code on its own has a MUCH higher value to the purchaser & probably represents a major revenue loss to the studio.

There's also a solid legal argument on licensing alone. Years ago, Microsoft won plenty of lawsuits against businesses & VARs who installed Windows using Enterprise site-licensed installation codes (using legit, purchased codes... but in a way not allowed by the license).

Hell, years ago, I knew someone who owned a video rental store in Miami. He had lots of foreign films (not released on NTSC VHS in the US). He'd buy retail tapes in Europe, make NTSC transfers himself, and rented both PAL/Secam original + NTSC transfer together as a single, inseparable unit... and STILL got sued by Sony or Disney (don't remember which one). He eventually got them to drop their lawsuit by agreeing to never do it with that studio's tapes again. Their lawyers were, shockingly, fairly open to reason & agreed that he was in a gray area and had made a good-faith (albeit unsanctioned) effort to do it legally, so they dropped the absurd multi-million dollar claim). It still hurt him, though, because it affected about a third of his foreign films.

My point is, even if you can prove the copyright owner didn't lose a cent in revenue, they STILL enjoy nearly absolute legal rights (in the US) to say 'no'. What Redbox is doing goes WAY beyond VHS-NTSC transfers of VHS-PAL/Secam tapes and results in actual lost original sales. If Redbox has a legal leg to stand on, it metaphorically has osteoporosis and polio.

Re:First Sale Doctrine?

[ewanm89]

Not only that is not precisely what the US Supreme Court said, the supreme court still has you consider it as a contract of adhesion which does not have nearly the same protections as other contracts do. Please speak to a lawyer before spreading rumours.

Re:First Sale Doctrine?

[alva_edison]

Microsoft would say that you couldn't sell it. Whether the law would agree is kind of complicated.

Re:First Sale Doctrine?

[alva_edison]

They definitely bought the retail version. I'm doubtful that they paid the retail price. I'm guessing they bought through a distributor similar to the way a big box store would.
For movies from other studios, it seems like their getting non-retail versions of the movies via their distribution agreements.

Re:First Sale Doctrine?

[alva_edison]

seems like their

they're

I have brought great shame to my family.

Re: First Sale Doctrine?

[Anonymous Coward]

Bobbs-Merrill Co. V. Straus is the case that created the 1st Sale doctrine. In it they ruled copyright does not include a right to limit resale. They case involved books and a license printed on the book saying the book could not ve sold for under a dollar.

Re:First Sale Doctrine?

[networkBoy]

Then we should welcome this particular case as it will likely clarify some aspects that are still open...

Re:First Sale Doctrine?

[Anubis IV]

From what I've gathered, there are a few issues at play:
1) Redbox neither purchased a digital copy, nor are they selling a digital copy. They purchased and are selling a code that can be used to redeem a digital copy. That said, to actually redeem the digital copy, one needs to agree to Disney's license.

2) Redbox is almost certainly aware that it won't be legal for their customers to redeem those digital copies without also owning a physical copy, since the fine print in these sorts of licenses almost always requires that the person also owns a physical copy. As such, those codes are worthless without the physical copy.

3) Redbox is apparently selling the codes as if they are a standalone means to purchase a digital copy, even though they can't be used that way. In doing so, there's an argument to be made that they're either engaging in fraud by portraying the product as something other than it is, or else that they're inducing others to engage in illegal behavior by selling an item that they have every reason to believe will be used illicitly.

Yes, the first-sale doctrine means that Disney exhausted their rights to the items included in the purchase at the time of sale, but the digital copy wasn't included in the purchase. The code to redeem it was. And while it's likely perfectly legal to sell the code, portraying it as a standalone item that can be legally used by others without any additional purchase is exactly the sort of thing that I'd expect to see end up in court.

Re:First Sale Doctrine?

[UnknowingFool]

In short: If you're going to apply terms to the use of a purchased product, those terms had damned well be available to me in full on the packaging, in which case my purchase signifies an agreement to those terms, or you had damn well better offer me a full refund if I don't agree to terms you didn't provide to me before the sale.

And what if the terms were clear on the packaging: "This product is authorized for private use only. It is prohibited for any other use and cannot be resold or rented individually."

And you'd have to be dense not to know you can't re-distribute copyrighted content without permission of the copyright owner. Redbox should know better.

Re:First Sale Doctrine?

[taustin]

You are absolutely correct. Actual leases, set up as such, are a great deal for the leasing company. And most big software companies don't have a shit about customers.

Re:First Sale Doctrine?

[taustin]

The code is part of the purchased goods. I presume it's a one time use code (and if it's not, that's on Disney, not RedBox). Once RedBox owns the copy of the movie, they can do anything that isn't prohibited with that copy. Splitting it up and selling it in pieces is not prohibited, any more than cutting the color illustrations out of a book and selling them as wall are it.

Adobe didn't dispute the right of SoftMan to sell the disk, the disputed the right to sell the license to use the copyrighted material based on their license terms. Their license terms were ruled immaterial, because copyright is governed by copyright law, not contract law. The first sale doctrine goes back well over a century, and was formally defined when book publishers put "licenses" in their books that prohibited libraries from loaning out their books. This isn't a new area of law, no matter how obscure it is these days.

There's conflicting case law at the appellate level, but it would be a reversal of long standing policy if this goes Disney's way. This may well be the case that gets to the Supreme Court, though, which is badly needed.

Re:First Sale Doctrine?

[taustin]

Kind of, but not all that much. The incentive to not do that isn't that it's illegal, it's that if Microsoft sues you, it costs nearly as much to win as to lose, and Microsoft has much deeper pockets.

But that doesn't mean you'll lose if you do have the money to fight.

Re:First Sale Doctrine?

[UnknowingFool]

Except you don't know what's anything that on the packaging that Redbox gets or what kind of distribution agreement Redbox has made. If you've looked at the Redbox discs they are most times not the same as you could buy from a store. They were often made for Redbox (printing the QR codes for example on the disc and minimal art on the disc itself). If Redbox bought normal retail discs, there are terms on the outside cover that address this but also Redbox is violating the copyright on those because those are not meant to be distributed as rentals or sold individually.

Re:First Sale Doctrine?

[sexconker]

Yes, they can. Unfortunately, Disney's lawyers will surely win out.

Re: First Sale Doctrine?

[sexconker]

That's not an argument.

R buys product X.
R sells part of X to U.
D, creator of X, cries foul.

R has no agreement with D.
D has no legal claim to X once R buys X.
D has no right to interfere with transactions between R and U.

Redbox is buying the discs at retail, pulling the discs and codes, renting/selling the discs and selling the codes.
They have every right to do this under the first sale doctrine. Disney cannot impose any limitation on what Redbox does with the discs or code slips once Redbox buys them. Redbox is free to do whatever the fuck they want. Worst case, Disney will claim copyright over the code and Redbox will email a picture of the slip of paper immediately and then ship the slip of paper via snail mail for a few cents more. It's the same deal with game download / DLC / demo / etc. access codes given as bundles / swag / promos.

Re:First Sale Doctrine?

[sexconker]

Well, they claim to have printed twice on the outside of the box "Codes are not for sale or transfer."

So? That's not enforceable. No one agrees to that.

Re: First Sale Doctrine?

[Anonymous Coward]

Hell, years ago, I knew someone who owned a video rental store in Miami. He had lots of foreign films (not released on NTSC VHS in the US). He'd buy retail tapes in Europe, make NTSC transfers himself, and rented both PAL/Secam original + NTSC transfer together as a single, inseparable unit... and STILL got sued by Sony or Disney

Sounds like he made an illegal copy of the movie. And not for his own, personal backup either. Rather hard to defend.

Re:First Sale Doctrine?

[UnknowingFool]

Yes, the first-sale doctrine means that Disney exhausted their rights to the items included in the purchase at the time of sale, but the digital copy wasn't included in the purchase.

The digital copy was included in the purchase of box set but in the US, for digital copies, the first sale doctrine does not neatly apply for the obvious reason that a physical copy might degrade over time while a digital copy does not and can be copied multiple times. However, in Europe, if the digital copy could be transferred and made unusable to the previous owner then a re-sell of digital copy is permissible. Now if this happened in Europe, then Redbox could be in the clear because once a code is used from Disney, it cannot be used again.

Re:First Sale Doctrine?

[sexconker]

There is wording on that slip of paper stating that it cannot be transferred or sold.

Such wording violates the first sale doctrine. You can absolutely sell that piece of paper all day long.

Re:First Sale Doctrine?

[sexconker]

Except that transmission of that fact induces copyright infringement. And you can read it before you buy, the outside of the box clearly states, twice, that the codes can not be sold or transferred.

Someday I'll stop bothering to correct the knee-jerk anti-IP mindset around here, but I guess it's more fun to be right than it is to read a bunch of other people not being wrong and having nothing in particular to add to it.

We've been doing this for 2 decades or more with codes for software and video games.

You sell the actual slip of paper, which is a physical thing protected by the first sale doctrine, not the code.
You can immediately send a photo of the code via email so the person knows what to expect (and immediately toss) via snail mail in 7-10 days.

Re:First Sale Doctrine?

[sexconker]

Such terms are unenforceable twatsnot. See the first sale doctrine, you clown.

Re:First Sale Doctrine?

[BronsCon]

Its okay, you corrected you're error, your fine. ;)

Re:First Sale Doctrine?

[sexconker]

They sell the slip of paper. Have you ever been on eBay looking at software codes, video game / dlc codes, etc.? This has been going on for decades and the lawyers for the software and video game industries gave up shutting down listings once people claimed to be selling the slips of paper and not the codes.

Re:First Sale Doctrine?

[BronsCon]

And you'd have to be dense not to know you can't re-distribute copyrighted content without permission of the copyright owner.

The download code is a fact. Facts are not protected by copyright. It is Disney's distribution partner who is distributing the copyrighted work when they accept the code in exchange for the download.

Re:First Sale Doctrine?

[sexconker]

From what I've gathered, there are a few issues at play:
1) Redbox neither purchased a digital copy, nor are they selling a digital copy. They purchased and are selling a code that can be used to redeem a digital copy. That said, to actually redeem the digital copy, one needs to agree to Disney's license.

2) Redbox is almost certainly aware that it won't be legal for their customers to redeem those digital copies without also owning a physical copy, since the fine print in these sorts of licenses almost always requires that the person also owns a physical copy. As such, those codes are worthless without the physical copy.

3) Redbox is apparently selling the codes as if they are a standalone means to purchase a digital copy, even though they can't be used that way. In doing so, there's an argument to be made that they're either engaging in fraud by portraying the product as something other than it is, or else that they're inducing others to engage in illegal behavior by selling an item that they have every reason to believe will be used illicitly.

Yes, the first-sale doctrine means that Disney exhausted their rights to the items included in the purchase at the time of sale, but the digital copy wasn't included in the purchase. The code to redeem it was. And while it's likely perfectly legal to sell the code, portraying it as a standalone item that can be legally used by others without any additional purchase is exactly the sort of thing that I'd expect to see end up in court.

Even if you want to pretend Disney's terms are enforceable:

Buy retail movie + code package.
Sell code and movie together to customer.
Buy movie back from customer.

Re:First Sale Doctrine?

[Anonymous Coward]

And you'd have to be dense not to know you can't re-distribute copyrighted content without permission of the copyright owner. Redbox should know better.

So you've never had a yard sale, lent a book/movie/game to someone, given a book/movie/game to someone as a gift? Because if you have, then by your logic you are guilty of violating copyright law via re-distribution.

Re:First Sale Doctrine?

[BronsCon]

I never claimed otherwise. That wording is also hidden from the buyer until after the purchase so, even absent the first-sale doctrine, it wouldn't apply. I thought I made that clear when I said:

and it matters not one bit as you can't read it before you buy, anyway; the Supreme Court has already ruled on that matter.

Re:First Sale Doctrine?

[BronsCon]

Except that transmission of that fact induces copyright infringement.

A fact has no copyright protection. Period. There is no copyright to infringe.

The case centered on two well-established principles in United States copyright law: That facts are not copyrightable, but that compilations of facts can be.

"There is an undeniable tension between these two propositions," Justice O'Connor wrote in her decision. "Many compilations consist of nothing but raw data -- i.e. wholly factual information not accompanied by any original expression. On what basis may one claim a copyright upon such work? Common sense tells us that 100 uncopyrightable facts do not magically change their status when gathered together in one place. The key to resolving the tension lies in understanding why facts are not copyrightable: The sine qua non of copyright is originality."

Emphasis and formatting preserved from original source.

Re:First Sale Doctrine?

[BronsCon]

Either way, whether the wording I allude to exists or not (and in the complaint it is made clear that it does), it doesn't apply for reasons already ruled on by the Supreme Court nearly 22 years ago.

I do know what was on the packaging Redbox got for the DVDs in question, because the complaint plainly states such.

Re:First Sale Doctrine?

[UnknowingFool]

Such terms are unenforceable twatsnot. See the first sale doctrine, you clown.

Obviously you don't know that first sale doctrine does not neatly apply to digital copies or have you not done your research?

Re:First Sale Doctrine?

[UnknowingFool]

The download code is a fact. Facts are not protected by copyright. It is Disney's distribution partner who is distributing the copyrighted work when they accept the code in exchange for the download.

Well that's pure twisted logic. The code allows for downloading of a digital copy. That's like saying that your PIN is a fact. Me using it to withdraw money from your bank account isn't really "stealing". The fact of the matter are copyright rulings are against what Redbox is doing. See Capitol v ReDigi.

Re:First Sale Doctrine?

[BronsCon]

I suggest you do some more reading, including re-reading what I wrote. Oh, and stop with the unwarranted racism; it only takes a few clicks to see what race I am and -- well -- you're wrong there, too.

Re:First Sale Doctrine?

[UnknowingFool]

So you've never had a yard sale, lent a book/movie/game to someone, given a book/movie/game to someone as a gift? Because if you have, then by your logic you are guilty of violating copyright law via re-distribution.

Then you don't understand the difference between private use and commercial re-distribution. As private individual, I have more rights than a retailer selling copyright works. Redbox use is clearly not "private" use. It is by definition commercial re-distribution.

Re:First Sale Doctrine?

[BronsCon]

He's conflating copying and distribution. While copying for personal use (e.g. no distribution) is protected, so is distributing without making a copy; the part he's missing is that infringement requires both parts.

Not really surprising, as UnknowingFool has a history of not thinking through his replies to my posts before mashing that Submit button.

Re:First Sale Doctrine?

[Anonymous Coward]

OK, since we're throwing wikipedia around, howsabout the entry for "contributory copyright infringement:"

"In the United States of America, the doctrine of contributory infringement is based on the 1911 case of Kalem v Harper Brothers.[9] The ingredients of contributory infringement were laid down in the Second Circuit Court of Appeals decision in Gershwin Publishing Corp v Columbia Artists Management Inc.[10] in which the court said that contributory infringement is said to happen when someone, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another."

Nobody ever said the code was subject to infringement, it's the movies that are. When you pass around the code, you materially contribute to the infringing conduct of another, because the only person Disney licensed to obtain digital access to the movie was the original purchaser, not the dude who is going to use that code to access the movie.

Re:First Sale Doctrine?

[UnknowingFool]

Either way, whether the wording I allude to exists or not (and in the complaint it is made clear that it does),

Your entire point was that the wording and terms are not present at the time of sale. If the terms were present at the time that Redbox buys a movie from Disney to be re-sold, then that destroys your point.

It doesn't apply for reasons already ruled on by the Supreme Court nearly 22 years ago.

And what case is that?

I do know what was on the packaging Redbox got for the DVDs in question, because the complaint plainly states such.

You mean the exact cases that specifically say that Redbox cannot do what they did.

According to Disney’s lawsuit, Redbox purchases Disney DVD and Blu-ray Disc “Combo Packs,” which include a code for accessing digital copies of the movies. Redbox then separates the physical discs (which it rents) from the codes, and re-packages the code inserts into Redbox cases for resale, the complaint states. Disney noted that the packaging on the Combo Packs include the notice that “Codes are not for sale or transfer.”

Re:First Sale Doctrine?

[UnknowingFool]

Not really surprising, as UnknowingFool has a history of not thinking through his replies to my posts before mashing that Submit button.

Not surprisingly you don't know the facts but post anyway.

Re:First Sale Doctrine?

[Anonymous Coward]

Yes, it most certainly does, since Disney didn't want to sell the directly at a lower price, as do most other motion picture companies do, Red Box had to resort to full retail.
Each physical comes with the digital copy, and they most certainly can do what they want with the codes.

If Disney doesn't like it, then pen a contract for direct sales sans codes.

Otherwise, Disney can shut the fuck up.

Re:First Sale Doctrine?

[BronsCon]

Well that's pure twisted logic. The code allows for downloading of a digital copy.

Indeed, it does allow for downloading of a digital copy; a digital copy made and distributed by Disney's distribution partner, who has every right to make and distribute that copy. There are rulings supporting the fact that a fact is not protected by copyright, a fact which you are more than welcome to copy all you want and post everywhere you can once you realize it's true. See Feist Publications, Inc., v. Rural Telephone Service Co.

The case centered on two well-established principles in United States copyright law: That facts are not copyrightable, but that compilations of facts can be.

"There is an undeniable tension between these two propositions," Justice O'Connor wrote in her decision. "Many compilations consist of nothing but raw data -- i.e. wholly factual information not accompanied by any original expression. On what basis may one claim a copyright upon such work? Common sense tells us that 100 uncopyrightable facts do not magically change their status when gathered together in one place. The key to resolving the tension lies in understanding why facts are not copyrightable: The sine qua non of copyright is originality."

The ruling is pretty cut and dry.

That's like saying that your PIN is a fact. Me using it to withdraw money from your bank account isn't really "stealing".

Speaking of pure twisted logic... No. My PIN is a fact and, should you guess it, it's not protected by copyright and I have no legal recourse should to go around giving it to everyone under the sun. Using it to take money out of my account, however, is theft, which has nothing to do with whether or not the damn number is protected by copyright. There are 10,000 possible 4 digit ATM PINs, minus PINs that individual banks choose to disallow (like 1234, 0000, 1111, etc...) and way more than 10,000 people with ATM cards capable of withdrawing money; surely, someone else has and uses my PIN on a regular basis.

Further, to use my PIN to access my account, you must also have my ATM card, or at least a copy of it. Now you have a unique collection of facts, which is protected, as explained in the ruling above.

The fact of the matter are copyright rulings are against what Redbox is doing. See Capitol v ReDigi.

ReDigi was distributing copies of digital media. That is, they were copying and distributing copyrighted works. That's infringement. It's also different than what Redbox is doing.

Re:First Sale Doctrine?

[BronsCon]

Your entire point was that the wording and terms are not present at the time of sale. If the terms were present at the time that Redbox buys a movie from Disney to be re-sold, then that destroys your point.

On the slip... in the box... That constitutes them being unavailable at the time of purchase, as you're not allowed to see them until after.

And what case is that?

Linked elsewhere in the discussion. But, since I know you'll just call that a lie, here: ProCD, Inc. v. Zeidenberg.

You mean the exact cases that specifically say that Redbox cannot do what they did.

No, I mean the actual complaint Disney filed with the court. It's linked (by another user) elsewhere in this discussion, I suggest you read it. Redbox is not distributing unauthorized copies of protected works. Period.

At any rate, it's irrelevant as the codes are facts and facts aren't protected works.

Re:First Sale Doctrine?

[BronsCon]

The first-sale doctrine is in no way relevant to my argument. They're not selling the paper the code is written on, to which the first-sale doctrine would apply; they're not selling a copy of the paper the code is written on, to which copyright would apply; they're selling the code, itself, which is a fact and thus not protected by copyright. Don't waste your time arguing with me, though; read the ruling after Disney loses.

Re:First Sale Doctrine?

[Anonymous Coward]

The Supreme Court has not, AFAIK, ever ruled on shrink-wrap licenses.

Lower courts have established ambiguous precedent. It is not a settled issue.

The precedent that exists only applies to software. Extending it to a digital code included with the purchase of a DVD would be a de novo application.

Disney's lawyers are super smart and super aggressive, but on first glance Redbox appears to have solid ground here.

Re: First Sale Doctrine?

[Anonymous Coward]

This ___^

Re:First Sale Doctrine?

[UnknowingFool]

Indeed, it does allow for downloading of a digital copy; a digital copy made and distributed by Disney's distribution partner, who has every right to make and distribute that copy. There are rulings supporting the fact that a fact is not protected by copyright, a fact which you are more than welcome to copy all you want and post everywhere you can once you realize it's true. See Feist Publications, Inc., v. Rural Telephone Service Co. [wikipedia.org]

You do realize the Feist has nothing to do with this case? In that specific case, the court ruled that telephone listings which are facts are not copyright-abled in themselves. In this particular case, this is about a code for a unique download of a movie not the facts themselves. Unless you can't acknowledge that distinction then you can twist the logic as much as you want.

The ruling is pretty cut and dry.

No it would be cut and dry if the code itself was the only valuable in question. It is not. The code allows for access to the movie which is the valuable. The movie is copyrighted.

Speaking of pure twisted logic... No. My PIN is a fact and, should you guess it, it's not protected by copyright and I have no legal recourse should to go around giving it to everyone under the sun. Using it to take money out of my account, however, is theft, which has nothing to do with whether or not the damn number is protected by copyright. There are 10,000 possible 4 digit ATM PINs, minus PINs that individual banks choose to disallow (like 1234, 0000, 1111, etc...) and way more than 10,000 people with ATM cards capable of withdrawing money; surely, someone else has and uses my PIN on a regular basis.

You're going to blow a gasket. My point is that publishing a fact does not make stealing more or less illegal according to other laws. Publishing a code does not negate any copyright laws in question.

eDigi was distributing copies of digital media. That is, they were copying and distributing copyrighted works. That's infringement. It's also different than what Redbox is doing.

So you're unwilling to admit that the code being distributed is for one copyrighted movie? And exactly one copy of a movie if the digital copyright system Disney employs works.

Re:First Sale Doctrine?

[Anonymous Coward]

..but I guess it's more fun to be right than it is to read a bunch of other people not being wrong and having nothing in particular to add to it.

Christ, you're an asshole.

Re: First Sale Doctrine?

[BronsCon]

There's also a solid legal argument on licensing alone. Years ago, Microsoft won plenty of lawsuits against businesses & VARs who installed Windows using Enterprise site-licensed installation codes (using legit, purchased codes... but in a way not allowed by the license).

The terms of the license were known, negotiated, and agreed upon prior to the purchase and, thus, were enforceable. Not so much here; especially given that the code will only work once.

If Redbox has a legal leg to stand on, it metaphorically has osteoporosis and polio.

If Redbox were selling the slip of paper with the download code printed on it, they would be in violation of the terms of the license (assuming it's enforceable, which is a tenuous assumption to begin with). If Redbox were selling a copy of the slip of paper with the download code printed on it, they would be in violation of copyright. Redbox is selling the code itself, which is a fact and thus not protected by copyright. See Feist Publications, Inc., v. Rural Telephone Service Co.

Re:First Sale Doctrine?

[Anonymous Coward]

Many years ago, I sold my CD's back to the record store for bar money. Many times. Does this mean that I should hire a lawyer?

Re: First Sale Doctrine?

[BronsCon]

It is questionable whether the first-sale doctrine applies here, which makes that the weaker of the possible arguments to be made in defense of Redbox. While it is my opinion that the first-sale doctrine does apply (because the shrink-wrap license does not -- also on my opinion), the court may opine differently. However, it was established in Feist Publications, Inc., v. Rural Telephone Service Co. that facts, in and of themselves, are not protected works. Since Redbox is distributing facts (the download codes) and not copyrighted works (the slips of paper, or copies thereof), they're in the clear.

Were I their attorney, I would open with that defense, then pile your argument on top of it just to get a chuckle out of them attempting to tear it down (should they even attempt to).

Re:First Sale Doctrine?

[BronsCon]

Indeed. Unless they fully define "codes" and "transfer" on the outside of the box, of course. Which they don't.

Re:First Sale Doctrine?

[Distan]

Sorry, but you have the facts wrong on ProCD, Inc. v. Zeidenberg. That case never made it to the Supreme Court. The summary you are linking to was written after the district court ruled but before the final appeal. The lower court was overturned.

The precedent in that case doesn't directly seem to apply to the matter at hand however.

Re:First Sale Doctrine?

[UnknowingFool]

On the slip... in the box... That constitutes them being unavailable at the time of purchase, as you're not allowed to see them until after.

Um what? It's on the box. The terms were clearly presented on the box in the photo. There are more terms inside if you open the box but it's clearly on the box that Redbox can't do what it did.>/p>

Linked elsewhere in the discussion. But, since I know you'll just call that a lie, here: ProCD, Inc. v. Zeidenberg [freibrun.com].

First of all it was not the Supreme Court. It was the Seventh Circuit Court of Appeals. Facts are important. And the ProCD case held that the defendant Zeidenberg was held liable to the shrinkwrap contract terms even if the telephone listings could not be copyrighted. "The court then held the license valid and enforceable as a contract." The problem with your link is that it is outdated. "This case is currently on appeal before the U.S. Court of Appeals for the Seventh Circuit. . . . May 1, 1996". ProCD was decided by the Seventh Court on June 20, 1996 and upheld the shrinkwrap contract. Therefore your point about shrinkwrap licenses being unenforceable is not correct.

No, I mean the actual complaint Disney filed with the court. It's linked (by another user) elsewhere in this discussion, I suggest you read it. Redbox is not distributing unauthorized copies of protected works. Period.

I'm certainly never going to take your word for it.

At any rate, it's irrelevant as the codes are facts and facts aren't protected works.

The courts have never decided this exact case. It will probably be new case law; however, I don't think Redbox is going to win because the case you linked ProCD expressly says facts are binding to contracts.

Re: First Sale Doctrine?

[Anonymous Coward]

The digital download is NOT an included freebee. Buying a product with a digital download costs more than buying the same product without the digital download code. Therefore the digital download is "sold".

Re:First Sale Doctrine?

[BronsCon]

How about, since the copy is made and distributed by Disney's digital distribution partner, the copy is authorized. That good enough for you? They can very well not accept the code; but, when they do accept it, they're authorized to provide a copy of the movie. Period.

Re:First Sale Doctrine?

[UnknowingFool]

ProCD says that you're wrong in this regard. The final case, not the one you linked.

Re:First Sale Doctrine?

[AnalogDiehard]

I shouldn't post this early in the morning. The Supreme Court struck down the shrinkwrap license [freibrun.com] in the case that made it in front of them. And they were right to do so.

Hate to be devil's advocate but you misread the article. The SCOTUS did not rule on shrinkwrap licenses, it was a lower court decision which is still going through the appeals process. The lower court relied on the SCOTUS decision that ruled that established facts such as telephone numbers are not entitled to copyright protection, and shrink wrap licenses were not addressed in that case.

Re:First Sale Doctrine?

[BronsCon]

In this particular case, this is about a code for a unique download of a movie not the facts themselves. Unless you can't acknowledge that distinction then you can twist the logic as much as you want.

Again, we'll have to let the court rule on this. Argue with the judge afterward, not me beforehand. What you're missing (or willfully ignoring) is that the code itself is a fact, not a copyrighted work. That it can later be used (once and only once, mind you) to obtain a copyrighted work is purely coincidental; the copy that is made and distributed as a result of entering that code is made and distributed by Disney's digital distribution partner who, ostensibly, is authorized to do so upon receipt of a valid code.

You're going to blow a gasket.

You always seem to think I'm over here seething as I reply to you. No, I'm over he laughing. If anything, I'm gonna do what Cartman did and blow a funny fuse.

My point is that publishing a fact does not make stealing more or less illegal according to other laws.

There, we agree. And when Disney's authorized partner makes and distributes a copy of the movie when a valid code (which only works once, mind you) is entered, nothing has been stolen.

Publishing a code does not negate any copyright laws in question.

We agree, there, as well. Of course, it doesn't make Disney's authorized distribution partner any less authorized, either.

So you're unwilling to admit that the code being distributed is for one copyrighted movie?

Indeed, one copy from an authorized source.

And exactly one copy of a movie if the digital copyright system Disney employs works.

Actually, Movies Anywhere enforces this by only accepting a given code once.

Re:First Sale Doctrine?

[BronsCon]

Actually, Microsoft wouldn't care. They'll only allow it to be used once, anyway.

Re:First Sale Doctrine?

[DriveDog]

You might think, but Disney's billions in lawyer forces will end up getting their way. I sure hope Disney gets smacked down on that, but I wouldn't expect it. Not that I care about Redbox, but the issue deserves to be decided in their favor this time.

Re:First Sale Doctrine?

[UnknowingFool]

Again, we'll have to let the court rule on this. Argue with the judge afterward, not me beforehand.

So I can't argue your opinion with mine? What world do you live in?

What you're missing (or willfully ignoring) is that the code itself is a fact, not a copyrighted work. That it can later be used (once and only once, mind you) to obtain a copyrighted work is purely coincidental; the copy that is made and distributed as a result of entering that code is made and distributed by Disney's digital distribution partner who, ostensibly, is authorized to do so upon receipt of a valid code.

My point is that you've asserted that this true. I contest that it is true.

There, we agree. And when Disney's authorized partner makes and distributes a copy of the movie when a valid code (which only works once, mind you) is entered, nothing has been stolen.

Except in the exact facts of this case, Redbox did not obtain a valid copy from Disney. Redbox appears to buy combo sets from retail, split them up, and sell them individually. Such a move requires a license or agreement. If you think about it, can Target or Walmart or Amazon can split a physical box set into multiple discs to re-sell without permission of the copyright owner? No. Can I as a private individual? Probably not but Disney isn't going to go after me if I sell the DVD I don't use to a friend.

We agree, there, as well. Of course, it doesn't make Disney's authorized distribution partner any less authorized, either.

My point is that Redbox was never authorized to do this kind of digital distribution and all articles say that.

Actually, Movies Anywhere enforces this by only accepting a given code once.

Movies Anywhere has the support and backing of the studios including Disney to do this. Again, Redbox did not.

Re: First Sale Doctrine?

[dougdonovan]

not going to happen.

Re:First Sale Doctrine?

[BronsCon]

That said, to actually redeem the digital copy, one needs to agree to Disney's license.

And, in agreeing to that license, they agree not to distribute the code. Of course, that's not relevant as the code won't work a second time; but the buyer's agreement to the license has no bearing on Redbox. In other words, you're even more right than your words suggest. ;)

Redbox is almost certainly aware that it won't be legal for their customers to redeem those digital copies without also owning a physical copy, since the fine print in these sorts of licenses almost always requires that the person also owns a physical copy.

3. USAGE RULES

a. Adding Movies Anywhere Entitlements. An "Entitlement" is a legitimately acquired license to stream or download a specific Movies Anywhere movie title and its resolution (e.g., Standard Definition or High Definition). Your "My Movies Collection" is made up of Content for which you have by license obtained Entitlements in your Movies Anywhere locker. As a Movies Anywhere Member, you may fill your My Movies Collection with Movies Anywhere-eligible movies based on your Entitlements. Your Entitlements will remain in your My Movies Collection indefinitely, subject to the ongoing validity of your Entitlements and these Movies Anywhere Terms of Use.

Now, I'm not going to paste the full document, but I will link to it. Note that they do not define "legitimately acquired license". Arguable, that's just a license you paid for or were gifted; your actions can be legitimate even if the actions of the person transferring the license to you are not.

As such, those codes are worthless without the physical copy.

They're only worthless if Movies Anywhere refuses to honor them. If Redbox sells the same code twice, well, yes, it would be worthless to the second person to attempt to redeem it.

Redbox is apparently selling the codes as if they are a standalone means to purchase a digital copy, even though they can't be used that way.

When Movies Anywhere accepts the code, that indicates that it, in fact, can be used that way. Since Movies Anywhere is Diseny's authorized digital distribution partner, the copies they make and distribute are explicitly authorized.

In doing so, there's an argument to be made that they're either engaging in fraud by portraying the product as something other than it is

You may have an argument, there. It will be interesting to see if Disney raises that point, but they did not in their original complaint.

or else that they're inducing others to engage in illegal behavior by selling an item that they have every reason to believe will be used illicitly.

Movies Anywhere's servers act to authorize the (one time) use of those codes. If the server accepts it, it's authorized, ergo not illicit; I would be amazed to learn that Movies Anywhere's servers will let you sit there and keep entering codes until you guess one right -- if they don't allow that, they've implicitly defined unauthorized (illicit) use of their systems and it can be reasonably expected that acceptance of a code indicates that code to be valid. They also have a mechanism in place (see link above) to revoke already-redeemed codes so, in the event of an erroneous acceptance, they can correct the issue at a later date.

I think they won't be disabling any redeemed codes sold by Redbox, though; but they may disable codes they themselves buy as part of their efforts to thwart this activity.

Yes, the first-sale doctrine means that Disney exhausted their rights to the items included in the purchase at the time of sale, but the digital copy wasn't included in the purchase. The code to redeem it was. And while it's

Re:First Sale Doctrine?

[BronsCon]

The digital copy is not what's being sold, the code (which is one-time-use) is. Not even the slip of paper the code is on (first-sale doctrine, and any exceptions to that, would apply) or a copy of that slip (copyright law would apply), but a fact (the code) which is not protected by copyright. They're in the clear under US law, as well; it's just a matter of them having better lawyers than Disney or getting a judge with some common sense.

Re:First Sale Doctrine?

[UnknowingFool]

Again you want to twist the logic of it, you can try. A court will probably decide differently. And even if you might be right, a shrinkwrap contract is enforceable.

Re:First Sale Doctrine?

[UnknowingFool]

The code was authorized for private use. Any decent lawyer could argue that a retailer reselling them has to obtain permission from Disney. If I pay for a boxing match on pay for view, I can invite as many people I want into my house to watch it. If I am showing it at the bar I own, I need a separate agreement.

Re:First Sale Doctrine?

[Cajun Hell]

I suppose you could argue that NO retail copyright license is enforceable, but that seems overboard.

You can have an enforceable license, but it has to be an actual informed agreement and be done at the time of sale. Printing things on the box doesn't do that. Handing someone a piece of paper and saying "sign this" and they're not allowed to take the product out of the store until after they've signed, is how you do that.

That's not overboard, is it? Isn't that pretty much what all the consumer advocates in the thread are asking for? And isn't it already a well-established way to do business? I'm not describing something weird here; we all have handled some transactions like that. It's so normal, so well understood, and makes all the flamefest here go away. It's the obvious right thing to do, if the seller is convinced they need to get a contract. Instead of debating shrinkwrap, someone just pulls out a document and smugly says "is this your signature?"

And if the seller thinks sign-this-before-you-have-it is too much burden, well, we still have copyright. Those kinds of sellers don't need licenses. Licensing should pretty rare, anyway. It's certainly not normal for a vast majority of IP products. Movies don't need to be a weird exception.

Not that they can't be! If someone really does want to try licensing movies, they can. Say "sign this." That's all we gotta do to fix the problems here.

Re:First Sale Doctrine?

[BronsCon]

You are correct and the appeal was heard by the Seventh Circuit court. Thank you for pointing out my compound errors; further proof that I should not post that early in the morning.

However, the Circuit Court's decision is still relevant here, even if for different reasons than I originally stated. The decision upholds Feist Publications, Inc. v. Rural Telephone Service Co., a Supreme Court decision wherein it was determined that facts, in and of themselves, are not protected by copyright. The code itself is a fact; the paper it is printed on is (arguably) a protected work and distributing a copy of that paper may be a violation of copyright, but the code itself is not protected.

Re:First Sale Doctrine?

[BronsCon]

So I can't argue your opinion with mine?

Oh, you can, and you have. There's simply no point in arguing further. Ultimately, the courts will decide which of us is right, assuming that either of us are.

What world do you live in?

One where it becomes increasingly pointless to restate the same opinion when neither you nor the person you keep restating it to are in any position to decide whether either of you are actually right. We've both said our parts, now we would both be better served by kicking back with a bag of popcorn and watching the show to find out who's right. There really and truly is nothing more either of us can add to this.

My point is that you've asserted that this true. I contest that it is true.

Indeed, and neither of us are in a position to prove the other wrong, ergo it is futile to attempt to do so. We must wait for the courts to decide.

Except in the exact facts of this case, Redbox did not obtain a valid copy from Disney. Redbox appears to buy combo sets from retail, split them up, and sell them individually. Such a move requires a license or agreement.

Then Disney has a case against Redbox over the rental activity, as that is explicitly forbidden by the terms of the shrink-wrap license. Assuming, of course, that the license holds up in court; it may or it may not. That sure is a beautiful strawman you've constructed, there, but it's entirely irrelevant because that's not what Disney is suing over.

If you think about it, can Target or Walmart or Amazon can split a physical box set into multiple discs to re-sell without permission of the copyright owner? No. Can I as a private individual? Probably not but Disney isn't going to go after me if I sell the DVD I don't use to a friend.

I don't believe either of those scenarios has been tried in court. That said, yes, you can surely resell, in part or in whole, anything you've bought. It's called the first-sale doctrine and you've made it abundantly clear in this thread that you're quite aware of it.

My point is that Redbox was never authorized to do this kind of digital distribution and all articles say that.

My point is that Redbox isn't the one doing the digital distribution, Movies Anywhere (who is authorized) is. So, while your point is absolutely correct, it's also irrelevant because Redbox isn't doing the thing you're pointing out that they're not allowed to do.

Movies Anywhere has the support and backing of the studios including Disney to do this. Again, Redbox did not.

As stated above, that's all well and good because Movies Anywhere is the one distributing the digital copies of the movie, Redbox is not.

We can keep going back and forth, restating the same facts to support the same opinions, or we can wait for the courts to sort it out. I'm buying a bottle of cognac tonight, it can go to whoever the courts determine to be right if we drop this until a decision has been made, or I can enjoy the bottle myself regardless. Your call.

Re:First Sale Doctrine?

[BronsCon]

I'm putting a bottle of cognac on the line, here.

Re: First Sale Doctrine?

[Spazmania]

Disney could make a strong argument under 'equity'

If the First Sale doctrine holds then that doesn't matter. The owner of a copy has the right to dispose of his copy any way he pleases, including splitting up the work and selling the pieces individually, regardless of how that impacts the copyright owner.

If the First Sale doctrine doesn't hold then that still doesn't matter because Disney's license prohibiting the sale of the codes would govern.

Re:First Sale Doctrine?

[UnknowingFool]

Then Disney has a case against Redbox over the rental activity, as that is explicitly forbidden by the terms of the shrink-wrap license. Assuming, of course, that the license holds up in court; it may or it may not. That sure is a beautiful strawman you've constructed, there, but it's entirely irrelevant because that's not what Disney is suing over.

No Disney has a case over Redbox on multiple fronts not just the rental activity. It's far easier to ignore for you them.

I don't believe either of those scenarios has been tried in court. That said, yes, you can surely resell, in part or in whole, anything you've bought. It's called the first-sale doctrine and you've made it abundantly clear in this thread that you're quite aware of it.,

And you seem to on ignore that for this particular case, first sale doctrine does not apply to digital copies. Second, repackaging someone else's copyrighted work could be considered a derivative and would need permission from the copyrighted owner. Also you seem not to make the clear distinction between private use and commercial re-distribution.

My point is that Redbox isn't the one doing the digital distribution, Movies Anywhere (who is authorized) is. So, while your point is absolutely correct, it's also irrelevant because Redbox isn't doing the thing you're pointing out that they're not allowed to do.

Redbox isn't distributing because you redeem the copy at Movies Anywhere but you forgot that Redbox is still selling the copy. Or did not think that part of distribution is selling.

We can keep going back and forth, restating the same facts to support the same opinions, or we can wait for the courts to sort it out. I'm buying a bottle of cognac tonight, it can go to whoever the courts determine to be right if we drop this until a decision has been made, or I can enjoy the bottle myself regardless. Your call.

My point is the courts have already said you're wrong. But you refuse to acknowledge it.

Re:First Sale Doctrine?

[UnknowingFool]

So you're willing to admit you were wrong about shrinkwrap licenses because the only case you cite says you're wrong.

Re:First Sale Doctrine?

[Pseudonym]

^ Neither Kim Dotcom nor Julian Assange detected.

Re: First Sale Doctrine?

[whit3]

someone who owned a video rental store in Miami. He had lots of foreign films (not released on NTSC VHS in the US). ...rented both PAL/Secam original + NTSC transfer together as a single, inseparable unit... and STILL got sued by Sony or Disney

Sounds like he made an illegal copy of the movie. And not for his own, personal backup either.

There's 'copy', and there's 'transcribe' (new medium), and there's 'translate'.

For hardware compatibility, ALL video tape is routinely transcribed to electrical signal streams, and parts are translated into your display device's color-map scheme. Simply adding another intermediate step in the process is not clearly an other-than-fair-use operation.

Getting sued just means a court was asked to resolve a dispute, and sometimes the court decision doesn't clarify anything.

Sony/Disney could conceivably claim that their 'foreign rights' distribution did not license for performance inside the US, but THAT anti-gray-market question has actually been settled. Gray market is NOT illegal in the US.

The "sounds like he made an illegal..." puts excess significance on how the narrator slanted the report. He could make it sound creepy, or mysterious, or cheerful, or (if he's a really good narrator) somber, wistful, humorous, earnest, ethereal, arcane...

I'll pull out my old recording of Boris Karloff reading 'Hunting of the Snark' now, . Should I transfer the vinyl to disk, or does the ancient turntable have to spin up every time I listen? Would an FDR fireside chat deserve a different answer?

Re: First Sale Doctrine?

[Anonymous Coward]

What about DVD and bluray sets? Where you get the DVD bundled with the bluray version. How is the code from the piece of paper different?

Re:First Sale Doctrine?

[BronsCon]

No Disney has a case over Redbox on multiple fronts not just the rental activity. It's far easier to ignore for you them.

The courts, of course, will decide which of us is correct.

And you seem to on ignore that for this particular case, first sale doctrine does not apply to digital copies.

I don't know who you think I'm a sock puppet for, but I've not argued first-sale doctrin at all in this discussion. In fact, I've specifically stated that it doesn't matter whether it applies or not; it is irrelevant.

Redbox isn't distributing because you redeem the copy at Movies Anywhere but you forgot that Redbox is still selling the copy. Or did not think that part of distribution is selling.

Redbox is selling a fact, not a copy of a movie. That fact can be sued to obtain a copy of a movie and, if we were not talking about a legal matter, I would agree, there's no distinction. However, our legal system thrives on those distinctions, which is why I keep driving it home.

My point is the courts have already said you're wrong. But you refuse to acknowledge it.

In the "one case" I keep referring to? Re-read the conversation; I've referred to a handful. None of them in this thread, of course.

Re:First Sale Doctrine?

[BronsCon]

Indeed. Another posted corrected me and I thanked him for correcting me. Because that's what I do when someone shows me that I was wrong. I just never thank you because you never show me that... Also, I've cited a handful of other cases in this conversation, just not in this thread.

Re:First Sale Doctrine?

[BronsCon]

Indeed, and Distain already pointed that out.

Re:First Sale Doctrine?

[BronsCon]

Indeed.

Re:First Sale Doctrine?

[BronsCon]

Well, we'll just have to wait and see, won't we? I guess you don't like cognac?

Re:First Sale Doctrine?

[BronsCon]

So, they should sue based on that argument, then. But they're not. And you could have had a free bottle of cognac if the courts agreed with you. I buy the good stuff, you missed out.

Re:First Sale Doctrine?

[UnknowingFool]

So, they should sue based on that argument, then. But they're not. And you could have had a free bottle of cognac if the courts agreed with you. I buy the good stuff, you missed out.

Again you're unwilinig to admit you were dead wrong about the shrinkwrap license then?

Re:First Sale Doctrine?

[UnknowingFool]

Again unwilling to admit you were dead wrong about shrinkwrap license then?

Re:First Sale Doctrine?

[UnknowingFool]

However, the Circuit Court's decision [google.com] is still relevant here, even if for different reasons than I originally stated.

The decision upholds Feist Publications, Inc. v. Rural Telephone Service Co. [google.com], a Supreme Court decision wherein it was determined that facts, in and of themselves, are not protected by copyright. The code itself is a fact; the paper it is printed on is (arguably) a protected work and distributing a copy of that paper may be a violation of copyright, but the code itself is not protected.

Yes the court has to decide whether a code is fact or not; however, the ProCD decision specifically says that it doesn't matter if facts can or cannot be copyrighted, the defendant still has to adhere to the contract. Thus any argument about whether a code is a fact is moot. Shrinkwrap license terms would compel Redbox to follow it.

Re:First Sale Doctrine?

[UnknowingFool]

We both showed that you were wrong way within minutes of each other. However you ware unwilling to admit to me because of your stubbornness.

Re:First Sale Doctrine?

[UnknowingFool]

The courts, of course, will decide which of us is correct.

The courts have already decided you are wrong on a few points.

In the "one case" I keep referring to? Re-read the conversation; I've referred to a handful. None of them in this thread, of course.

Well if you ignore that when deciding a case, a court has to consider all previous cases especially when the plaintiff brings up multiple points . For example, in this case you've brought up first sale doctrine which doesn't apply. Shrinkwrap licenses which were the opposite of what you said. That doesn't include yet addressing the copyright infringement, breach of contract, or false advertising, unfair competition, or tortuous inference claims by Disney

Re:First Sale Doctrine?

[BronsCon]

If the courts have already decided, I guess there won't be a trial, then?

Re:First Sale Doctrine?

[BronsCon]

Indeed, within minutes. However, he was first and wasn't doing so with the express intent of proving some asinine point like you are. Beyond that, I'm pretty sure I admitted it to you when I pointed out that someone else had already corrected me. If I wasn't wrong, I could not have been corrected, no?

Re:First Sale Doctrine?

[BronsCon]

Yes the court has to decide whether a code is fact or not

Wait... here, you said the courts have already decided. Which is it?

however, the ProCD decision specifically says that it doesn't matter if facts can or cannot be copyrighted, the defendant still has to adhere to the contract

Well, if the point is irrelevant, I suppose the courts don't have to decide it, then. Right? Like, it would be a complete and total waste of their time (sort of like this conversation), no? Yet I bet we'll see the courts deciding just that.

Your best move is to do as I've suggested and drop it. Let the court make its ruling on the matter and I might admit to you that I was wrong if they rule the way you predict they will. Let me actually be wrong, though, before expecting me to admit it.

Re:First Sale Doctrine?

[BronsCon]

Isn't that what I did here and here?

Re:First Sale Doctrine?

[BronsCon]

Isn't that what I did here and here?

Re:First Sale Doctrine?

[Opportunist]

I'm full of myself and have an ego that needs its own zip code, ok, but even I can't hold a candle to either of them.

Re:First Sale Doctrine?

[Twanfox]

They're not selling digital copies. They're selling a code that grants the buyer access to a digital copy. Maybe that distinction means something here, because the implication in 'does not apply to digital copies' implies Redbox is copying the digital version. It is not.

Re:First Sale Doctrine?

[Twanfox]

Does Disc Replay require a contract with every publisher for products they sell? They certainly sell in a commercial capacity, and I don't see on their site 'we only accept these products for resale'. I'm also reasonably certain, given their target merchandise, what they sell is copyrighted works. Don't think they've been sued for doing what they do, though, because no where in their business line do they clone, copy, or otherwise replicate the work being sold.

Re:First Sale Doctrine?

[UnknowingFool]

You seem not to understand how the legal system works. Because the courts has already ruled in a particular way does not mean all the behaviors that led to the suit has stopped. For example, it's trademark and copyright infringement to make bootleg copies of a Disney film. That doesn't mean people don't do it.

Re:First Sale Doctrine?

[UnknowingFool]

Indeed, within minutes. However, he was first and wasn't doing so with the express intent of proving some asinine point like you are. Beyond that, I'm pretty sure I admitted it to you when I pointed out that someone else had already corrected me. If I wasn't wrong, I could not have been corrected, no?

No you've pretty much been wrong the whole time. You just refuse to acknowledge it to me because I've proved you wrong so many times before.

Re:First Sale Doctrine?

[BronsCon]

For example, it's trademark and copyright infringement to make bootleg copies of a Disney film. That doesn't mean people don't do it.

Wow, I actually agree with something you said! It's also not what's happening here.

Re:First Sale Doctrine?

[BronsCon]

I've proved you wrong so many times before.

[Citation Needed]

Re:First Sale Doctrine?

[UnknowingFool]

You mean this time and all the times you lied in the past? After all it hasn't been just me who called you a liar.

Re:First Sale Doctrine?

[BronsCon]

So if I call you a child rapist and get 2 others to do the same you'll willingly go to prison for it because, after all, it's not just me saying it so it must be true.

The lot of you can never back up your claims. If they were true, it would be trivial for you to do so. If 50 million screaming fans can be wrong, so can the 5 fuckwits who follow me around Slashdot. In fact, it's more likely the handful of you are wrong, statistically speaking.

Re:First Sale Doctrine?

[UnknowingFool]

Of course it's happening here. Neither party disagrees that it's happening here. There is not a disagreement on the question of facts. The disagreement is on whether Redbox's justification is a question of law. However in this case that is superseded by case law and contract law both of which Redbox loses. You of all people proved yourself wrong when you cited ProCD.

Re:First Sale Doctrine?

[BronsCon]

Of course it's happening here.

Uhm...

For example, it's trademark and copyright infringement to make bootleg copies of a Disney film. That doesn't mean people don't do it.

Redbox is not making copies of the film. Hell, they're not even making copies of the slip of paper the download code is on.

Neither party disagrees that it's happening here.

Actually, neither party claims that it's happening here.

At any rate, I stand by the fact that the courts will ultimately decide and there's no point in us discussing it further.

Re:First Sale Doctrine?

[Gr8Apes]

I tell you three times true. It seems to be Trump's modus operandi (he'd have to have someone explain that to him)

Re:First Sale Doctrine?

[BronsCon]

Are you implying that UnknowingFool is Trump? I mean the name and persona fit, so...

Re:First Sale Doctrine?

[UnknowingFool]

Again ProCD says you are wrong. It doesn't matter if the code is copyrighted or not according to you.

Actually, neither party claims that it's happening here.

Both sides agree on what Redbox is doing. That is not in dispute. Clearly you don't understand what happens in a case when no material issue of fact exists and how the courts have to rule. Perhaps you should read up on that

Re:First Sale Doctrine?

[UnknowingFool]

I did. You just lied again and again because you refused to admit you were wrong.

Re:First Sale Doctrine?

[UnknowingFool]

Please. You cite Trump because you don't any excuse for your lies.

Re:First Sale Doctrine?

[BronsCon]

If there was no material issue of fact and how the courts would have to rule was not in question, those high priced lawyers who are good at their jobs would advise a settlement and take their huge bonuses for avoiding the trial; that would be on top of their usual pay, of course.

There really and truly is no reason to continue this discussion. If you want the last word, you can have it; just please don't make it something so absurd and ignorant. Again, the courts will decide; and the transcripts will show that there was, in fact, something to be decided.

Re:First Sale Doctrine?

[BronsCon]

When did I cite Trump?

Re:First Sale Doctrine?

[BronsCon]

You certainly did not. You've never backed up any claim that I've lied in any situation. Not once. Cite one or more of the actual lies I've told, with some proof that it's a lie. You can't, because such a situation does not exist. Have I been mistaken in the past? Certainly, and I openly correct myself when it is pointed out. Those, however, are not lies; lies require intent and being mistaken is certainly unintentional.

Being as ignorant as you, on the other hand, requires specific intent. That's a legal term. Look it up and keep in mind that you're not as anonymous as you think you are.

Re:First Sale Doctrine?

[UnknowingFool]

Wow you really don't remember what you just posted or are you back to lying again?

Re:First Sale Doctrine?

[UnknowingFool]

Not once. Cite one or more of the actual lies I've told, with some proof that it's a lie.

You would never believe it at this point when it comes from me, so why bother? Like I said multiple people have called you out. If I posted every link, you'd just deny them all. Really what would it take for you to accept it?

Re:First Sale Doctrine?

[BronsCon]

It was Gr8Apes who brought up Trump, I was responding to that. Nice try, though.

Re:First Sale Doctrine?

[BronsCon]

You really don't know until you try, now, do you? And we're back to the whole issue of multiple people and no evidence: you're a child rapist. There, I said it. If I can get 2 more people to say it, it's true, right?

Re:First Sale Doctrine?

[Gr8Apes]

It's the same modus operandi that Trump uses - repeat the same lie 3 times and non-critically thinking people begin to believe it. If you need a historical reference, the line comes from Lewis Carroll's nonsensical "The Hunting of the Snark", but the statement has been seen as having a noticeable effect. And this is not news, as Joseph Goebbels stated if you repeat a lie often enough people will believe it. So there's another stellar example of whom Trump follows, because he's certainly practicing the book to the letter.

Re:First Sale Doctrine?

[BronsCon]

Speaking of which, can I get you to weigh in on UnknowingFool's status as a child rapist? Is he or is he not? I'm two people away from making it a truth by his own standards and your assistance would be greatly appreciated. He hasn't bothered responding to me since I first said it, so perhaps it's already true without my intervention.

The codes come with the discs, and are paid for

[ZorinLynx]

This is ridiculous. When Redbox bought the discs, they bought the codes too, since they are included with the disc.

Just as I can sell my code to someone after buying a personal copy of the movie, Redbox should have the right to sell their code as well. If they don't sell the code, and leave it with the disc, the first person to rent the movie will get the code anyway.

If Disney has a problem with this, they should just stop including the codes with the discs.

Re:The codes come with the discs, and are paid for

[Anonymous Coward]

The codes are legally presented as something that only the owner of the physical disk can have. Disney will easily win.

Re:The codes come with the discs, and are paid for

[Anonymous Coward]

The codes are only for use by the owner of the disc. You cannot rent, borrow, or covertly steal a code from a friend. You must be the owner of the physical disc. People that Redbox gives these codes to are not the owners; they are simply renting the disc from the true owner (Redbox). This should be open-and-shut.

Re:The codes come with the discs, and are paid for

[Anonymous Coward]

Ah, but here comes the beauty of copyright licenses: they can be revoked. At any time, for any reason, no compensation required. Disney doesn't want a reseller handing out codes to its movies? License revoked! Disney thinks reselling those codes is copyright infringement? Probably is! Companies get to decide what is and is not infringing their copyrights, after all.

Welcome to the brave new world of digital distribution, where you don't own anything and the copyright owner can tell you what you can do with its content even if a technological measure is not in place to make this happen.

Re:The codes come with the discs, and are paid for

[Anonymous Coward]

You cannot buy these things. You can only license them, and that license can be revoked if you violate some arbitrary TOS/EULA/etc.

Welcome to the wonderful world of copyright that Disney helped to shape (in its favor).

Re:The codes come with the discs, and are paid for

[v1]

I doubt this will come down to whether or not RedBox is violating the terms. It's more likely to come down to whether or not those terms are legal and enforceable, and that's the angle you'll see RedBox use in their defense.

I for one find it insulting that I buy something and then am held to some terms of its use. It's mine, I paid for it, and you should have no right to tell me how I'm allowed to use it now that it's my property not yours. So I'd like to see RedBox win this.

Re:The codes come with the discs, and are paid for

[BronsCon]

The codes are legally presented as something that only the owner of the physical disk can have.

Before or after the sale? (AFTER -- on the paper the code is printed on, which you can't read until you buy and unwrap the disc)

Can Redbox return the discs after they've opened them and learned that they can't resell the codes? (NO -- Once you open a DVD, you're no longer allowed to return it)

If you can't know the terms of the purchase before the purchase, for literally every non-IP product we know those terms don't apply. Why should IP be any different? What if the terms were "by keeping this product after opening it, you agree to give us 100% of your income for the remainder of your natural life"? Oh, and you can't return it once you've opened it... and you can't know that's a term of the sale until you open it... and you can't open it before you buy it.

Nope. The Supreme Court agrees, too.

Re:The codes come with the discs, and are paid for

[Anonymous Coward]

I think you need to argue that Redbox ever got the rights to transfer the digital portion to someone else in the first place. It's probably a reasonably similar situation as as the DVD not including broadcast rights or rights to screen the movie for profit.

Re:The codes come with the discs, and are paid for

[Anonymous Coward]

So should you be allowed to rip it and stream that content from your website for anyone to see? It's yours, right? Bought and paid for? This is the digital era, and thought processes (and laws) must adapt or die.

Re:The codes come with the discs, and are paid for

[Anonymous Coward]

uh what? Reproduction and public performance rights are specifically listed in the copyright act. unless you subscribe to the "harry potter" theory of copyright law where a copyright holder can create whatever rights he wishes by writing them on paper what you say is not true.

Re:The codes come with the discs, and are paid for

[mysidia]

The codes are only for use by the owner of the disc. You cannot rent, borrow, or covertly steal a code from a friend. You must be the owner of the physical disc.

Says who? Maybe I bought the disk and refused to agree to any such restriction.
A product purchased at retail is mine, AND I have the right to re-sell anything i've purchased in whole or in part.

A retailer or manufacturer cannot legally bundle items together and prevent me from dividing the bundle and reselling --- that is, unless they make me commit to the terms prior to the sale.

Re:The codes come with the discs, and are paid for

[Anonymous Coward]

You have no idea how copyright works. It's not revocable like you say, please educate yourself, and the revocation rules that exist apply to the person that actually produced the work and licensed it:
https://www.copyright.gov/docs/203.html

Re:The codes come with the discs, and are paid for

[Anonymous Coward]

The digital download is not part of the sale. It is a separate transaction, executable only by the owner of the physical disc, no one else. Why is this so fucking hard to understand.

Re:The codes come with the discs, and are paid for

[CodeHog]

> "by keeping this product after opening it, you agree to give us 100% of your income for the remainder of your natural life" don't give them any ideas!

Re:The codes come with the discs, and are paid for

[atrex]

Not sure if it all Disney movies have this statement on the box or not, but, you can see here on the back of Disney's Pirates of the Caribbean: Dead Men Tell No Tales that the codes are explicitly not for sale or transfer. So, Disney actually does have an argument in this case:
Dead Men Tell No Tales Blu-ray Cover

Re:The codes come with the discs, and are paid for

[KingMotley]

Ah, but the codes aren't copyrighted. The digital movie is, and it is Disney themselves (or their authorized digital distributor) who are actually giving the copy of the movie to the person.

If redbox transfers ownership of the physical disk, and then destroys it, I doubt that would invalidate the legality of either the code or the digital download rights of the new owner of the physical disk. I think most people are assuming that redbox is separating the two. Continuing to rent out the physical disk while selling the digital download code, which isn't in the summary here, or the unpaywalled version of the original article.

Re:The codes come with the discs, and are paid for

[BronsCon]

It's not like it'd be enforceable anyway unless it's on the outside of the packaging where the user can see it before the purchase. I'd love to see them try it, both inside and outside the box. The very first time they sued over it, it would spell the end of that company; the trial would be so publicized that nobody would be able to ignore id, and nobody would willingly give up all of their income for the rest of their life, so sales would drop to 0.

Of course, if they printed it on the outside of the box, they could sue the stores who also bought it knowing the terms. That would actually be amusing and might trigger a revolution in US retail practices.

Except for the first poor sucker to run afoul of the terms, I'd say it's be a win for all consumers.

Re:The codes come with the discs, and are paid for

[j_rhoden]

I think the question Redbox is going for here is does First Sale Doctrine apply. Disney can say whatever they want on the box, but if the court says it falls under the First Sale Doctrine then it doesn't matter what Disney thinks.

Re:The codes come with the discs, and are paid for

[Anonymous Coward]

No, that's making a copy and violates the copyright license. However, the included code falls under first-sale doctrine, under which the content owner loses rights to the copy sold. In this case, the purchase comes with two copies, a disc and a code. Therefore Disney does not control the redemption code after selling it, and will lose the case.

Re:The codes come with the discs, and are paid for

[Anonymous Coward]

Companies get to decide what is and is not infringing their copyrights, after all.

No. No they do not. The laws do.

Re:The codes come with the discs, and are paid for

[BronsCon]

So should you be allowed to rip it and stream that content from your website for anyone to see?

No. That would be a violation of copyright, which is a set of terms one can know prior to the purchase. The copyright is listed right on the package and you can learn what copyright is, should you not already be aware, without opening the package. It is the terms included inside the package that don't apply; and the Supreme Court agrees.

Re:The codes come with the discs, and are paid for

[BronsCon]

The code is part of the sale. It's printed on a slip included with the disc. By accepting the code when whoever I sell it to enters it, they're agreeing to that second transaction you allude to, as well.

Re:The codes come with the discs, and are paid for

[bws111]

You didn't buy the 'code' any more than you bought 'the movie'. You bought piece of media containing 'the movie' and a piece of paper that contains a code. Sell that physical media? Fine. Sell a copy of the media (which contains the movie you supposedly 'bought')? Nope. Sell that piece of paper? Fine. Sell a COPY of the piece of paper? Not nearly as clear cut.

Re:The codes come with the discs, and are paid for

[Anonymous Coward]

The digital download is not part of the sale. It is a separate transaction, executable only by the owner of the physical disc, no one else. Why is this so fucking hard to understand.

It's not hard to understand - it's hard to JUSTIFY.

Consider if Burger King said "You may purchase a whopper however you may not remove the lettuce. Why is this so fucking hard to understand?".

No, the concept is quite easy to understand - however we as consumers (and legally, as a society) can certainly determine that your concept is invalid and is not enforceable.

Re:The codes come with the discs, and are paid for

[bws111]

The PIECE OF PAPER is what is included with the sale. THAT is what qualifies as sellable under first-sale doctrine. Redbox isn't selling that piece of paper, they are selling a COPY of it.

Re:The codes come with the discs, and are paid for

[Anonymous Coward]

Just as I can sell my code to someone after buying a personal copy of the movie, Redbox should have the right to sell their code as well.

I will be curious to see how this plays out ... because clearly Di$ney is asserting that it isn't transferable property, but something licensed which you can't re-assign to something else.

If these are legal digital movie codes that haven't been redeemed, then you would assume the right of first sale applies. What Di$ney will argue is that you don't own the code, you, as a non-commercial purchaser have a limited right to use according to how they tell you.

This isn't copyright infringement, this is selling off a surplus code to redeem for a legal download of a movie.

I will be curious how this plays out .. I used to buy movies which had the digital download code I could use from iTunes so I'd have a portable copy. But the fucking piece of shit UltraViolet they've all changed to makes you jump through so many hoops and sign up on so many sites it's something I refuse to use.

I like the idea of someone sticking it to Di$ney and saying "nope, we're selling property we legally bought, now fuck off".

Re:The codes come with the discs, and are paid for

[olsmeister]

God damn it, now I'm hungry.

Re:The codes come with the discs, and are paid for

[BronsCon]

Indeed. The code is a fact and facts are exempt from copyright.

Re:The codes come with the discs, and are paid for

[BronsCon]

The code on that piece of paper is a fact. Facts are not protected by copyright. I'm also not arguing anything about the first-sale doctrine.

Re:The codes come with the discs, and are paid for

[Anonymous Coward]

Its called a birth certificate and taxes

Re:The codes come with the discs, and are paid for

[DRJlaw]

The PIECE OF PAPER is what is included with the sale. THAT is what qualifies as sellable under first-sale doctrine. Redbox isn't selling that piece of paper, they are selling a COPY of it.

How is the information on the piece of paper not being sold?
How is the code itself copyrightable?

Hint: the code is being sold, the code is not copyrightable, and the sale is a sale of the code to obtain the digital copy whether accessed through the information or through the literal piece of paper.

Re:The codes come with the discs, and are paid for

[Anonymous Coward]

Ah, but here comes the beauty of copyright licenses: they can be revoked. At any time, for any reason, no compensation required.

No, they cannot, unless there is verbiage to that effect in the original contract. (And "original contract" only applies to anything visible at time of sale, not anything in fine print tucked away inside the box.)

Re:The codes come with the discs, and are paid for

[Anonymous Coward]

Well, in this case Disney is doing everyone a favor. Dead Men Tell No Tales is the utter worst of the Pirates of the Caribbean franchise. I can understand why Disney doesn't want that spread around. They should put it back in the vault and throw away the key.

Re:The codes come with the discs, and are paid for

[omnichad]

Sell that piece of paper? Fine. Sell a COPY of the piece of paper? Not nearly as clear cut.

Raise.com is a whole marketplace that lets you sell copies of an e-gift card code. They haven't been shut down and I think this is (effectively) the same thing.

As long as only one person gets to redeem the code, and Redbox never agreed to any ToS with Movies Anywhere, I don't see the problem.

Re:The codes come with the discs, and are paid for

[Anonymous Coward]

redbox wins, if they don't run out of money.. which might be the actual goal of disney.. to put them out of business.. which could happen around the time their own paid-streaming service launches.

the code disney has no control over. they can drm the fuck out of the digital download itself *after* the code has been used to obtain that copy.. but until then... the way disney packages and sells the videos currently... the disc and the piece of paper or label with the claim code printed on it are TWO physical things inside of one package, and the purchaser is allowed to resell either or both of them, separately or together. it isn't any different than buying a gift set of harry potter books and then reselling each book separately.

Re:The codes come with the discs, and are paid for

[Anonymous Coward]

God damn it, now I'm hungry.

I've got a pizza. Here's the code to download a copy from virtualpizza.com:
FCKGW RHQQ2 YXRKT 8TG6W

Re:The codes come with the discs, and are paid for

[Oligonicella]

Utter bullshit. The sale is a package. The disk and code go together. To allow renters to rip a DVD is in no way allowing the *owner* to do so. You're just torturing logic to validate pirating.

Re:The codes come with the discs, and are paid for

[DRJlaw]

The digital download is not part of the sale. It is a separate transaction, executable only by the owner of the physical disc, no one else.

Interesting. Where's the consideration for this "separate transaction"? Particularly since the purchaser of the physical good was already promised the "digital download" on the face of the good as part of the marked price.

This is going to be fun...

Re:The codes come with the discs, and are paid for

[Anonymous Coward]

Since when is a license an item?

Re:The codes come with the discs, and are paid for

[JackieBrown]

It's not like it'd be enforceable anyway unless it's on the outside of the packaging where the user can see it before the purchase. I'd love to see them try it, both inside and outside the box. The very first time they sued over it, it would spell the end of that company; the trial would be so publicized that nobody would be able to ignore id, and nobody would willingly give up all of their income for the rest of their life, so sales would drop to 0

You'd be amazed what the media can ignore. And honestly, most people would not follow the news on this if it was publicized. If you don't agree with the terms you see after you open the box, you have grounds for a refund but not much more than that.

Re:The codes come with the discs, and are paid for

[sexconker]

The disc and code go wherever the owner wants them to, via the first sale doctrine. This has already been decided by the Supreme Court.
Will Disney be able to get their way? Probably. Those pieces of shit usually do.

Re:The codes come with the discs, and are paid for

[BronsCon]

You'd be amazed what the media can ignore.

Trust me, no I woudln't. I am, however, constantly amazed at what Slashdot posters such as yourself can ignore. Example:

If you can't know the terms of the purchase before the purchase, for literally every non-IP product we know those terms don't apply. Why should IP be any different? What if the terms were "by keeping this product after opening it, you agree to give us 100% of your income for the remainder of your natural life"? Oh, and you can't return it once you've opened it... and you can't know that's a term of the sale until you open it... and you can't open it before you buy it.

Nope. The Supreme Court agrees, too.

You see, I already answered the remainder of your post, 2 posts ago, before you posted it. However, to let that really sink in, I'll continue.

And honestly, most people would not follow the news on this if it was publicized.

Indeed. Until someone who knows the poor sucker being sued over it tells their friends and family about the atrocity that is that product's EULA, then those people spread it, and so on, and so forth, until anybody with a single living friend or family member has heard that they shouldn't buy X product because they're signing away all of their future income if they do. When you try to take away someone's paycheck, well, you get their attention.

With that many eyeballs wanting a peek, the media would not ignore it.

If you don't agree with the terms you see after you open the box, you have grounds for a refund but not much more than that.

When the policy is "no refunds on open software and media", and that policy is posted where you can see it prior to purchase, you actually don't have grounds for refund. That's one of the reasons the Supreme Court ruled the way they did when they held shrink-wrap licenses unenforceable.

Re:The codes come with the discs, and are paid for

[Anonymous Coward]

I would not be so sure. Sony is directly responsible for the biggest and most dangerous malicious software attack against civilians ever conducted. And yet they are still (unfortunately) in business and not a single executive went to prison or was executed for his crimes.

Re:The codes come with the discs, and are paid for

[BronsCon]

Holy fucking shit that's actually the first 4 sets from one of my Windows 7 Ultimate license keys. I thought it looked familiar, so I dug up the install disc (obtained at the Win7 launch event in Cleveland) and verified.

That might explain why I have to call to activate every time I install it.

Re:The codes come with the discs, and are paid for

[UnknowingFool]

When was it decided by the Supreme Court that Redbox is legally clear? Please cite the case.

Re:The codes come with the discs, and are paid for

[UnknowingFool]

When did the Supreme Court agree?

Re:The codes come with the discs, and are paid for

[Anonymous Coward]

Well, I'd say that *ought* to be legal provided that you pay appropriate royalties (set by statute) to the copyright holder. I don't think anyone would argue that it's *currently* legal, though.

In any case, it doesn't sound like that's what Redbox is doing. It sounds as though Redbox is simply giving the customer a copy of the code that comes in the Disney DVD box, which the customer can then use to download the video from *Disney's* servers. TFS isn't clear about this, though; either the reporter doesn't know or is being deliberately cagey.

Re:The codes come with the discs, and are paid for

[BronsCon]

They did not. I was wrong. You must not like cognac.

Re:The codes come with the discs, and are paid for

[Anonymous Coward]

Who said they are selling a copy of it?

It appears to me, although I could be mistaken, that they are selling the actual piece of paper/card that was included in the retail box.

Re:The codes come with the discs, and are paid for

[Anonymous Coward]

To redeem the code you need to accept the terms and conditions which state you are the owner of the physical disc that the code was sold with.

I'm sure Redbox can sell the slip of paper with the code on, what isn't clear is that if the buyer redeems the code they are actually infringing copyright as they don't own the physical disc (this is what Disney is claiming). If they are infringing copyright, then there is indeed a case for Redbox being guilty of contributory infringement as they are encouraging the buyers of the code to redeem it to get a copy.

DVD+BluRay version

[Anonymous Coward]

Could I also buy the DVD+BluRay edition that has a disc for each format in it, then repackage them and sell them as two copies. Individually they would sell more than the bundle would. Isn't this just smart business? When you buy a bag of sugar, someone else bought a huge truck full of sugar and put it in bags at a significant profit.

Re:DVD+BluRay version

[PortHaven]

Heck, they likely consider the fact that I've given DVD's to my ex wife for the kids to watch to be illegal in their book. How dare I um...ya...give the DVD to my kids to enjoy at their mother's.

Go ahead...sue me...I don't care. RIAA/MPAA you've stolen more money from artists than anyone else (with the possible exception of the IRS, but I really think you still have them beat.)

Re:DVD+BluRay version

[Anonymous Coward]

I do this for myself.
I have a small business. We have a DVD lending library for our guests.

I buy the bluray+dvd combos for every new release I think our guests would want
We of course, repackage all the dvd's for guests into slimline cases, thrown them on the shelf
and throw away the rest into the back seat of my car. (I also give the codes to guests who want them)

Maybe the IRS cares if I spend 5$ more than I have to for the work related purchase, no one else does.

Re:DVD+BluRay version

[UnknowingFool]

Yes you can do this. But you can also be sued for doing so.

Re:DVD+BluRay version

[Anonymous Coward]

The RIAA/MPAA isn't above taking food out of your kids mouths.

As long as the code is unique

[Anonymous Coward]

IANAL .. but I would think, that as long as they are only selling a single code obtained with the purchase of a retail DVD, to a SINGLE customer, then first sale doctrine should apply. If they are printing the same code over and over, then unless they can show through some sort of inventory control that only as many copies of the code, were sold as DVD's purchased, they could be in trouble.

Legality Won't Matter Here.

[Zorro]

This is just too devastating to Darth Mouses Business model.

Disney HAS to stop this through any means.

Not like Darth Mouse is above Evil methods.

Elon Musk

[Anonymous Coward]

is a horrible person.

Ever actually read the fine print?

[Anonymous Coward]

Not for public viewing, not to be redistributed, for private viewing only, blah blah...

Re:Ever actually read the fine print?

[Anonymous Coward]

Remember all those Sega Genesis cartridges with "not for resale" printed on them? Such terms did not hold water then, and they should not hold water now.

Its not illegal to sell a code

[Anonymous Coward]

The copyright infringement takes place on the users end. Using those codes without having possession of the license IS illegal. Disney knows that they will have no luck prosecuting the individual users so they want to get the payday from Redbox. Disney will eventually win though because "its Disney". When can we just opt for a % of our taxes to go directly to the outsourcing shit company rather than tie up courts valuable time with giving stuff away to Disney?

Re:Its not illegal to sell a code

[sexconker]

The copyright infringement takes place on the users end. Using those codes without having possession of the license IS illegal.

Disney / the provider behind the streaming service is the one making the copy. Not the user.
The user is doing nothing illegal by using a code for a movie they don't own. They're just violating Disney's private EULA/ToS. Disney is free to find these users and remove the offending titles from their libraries or block them from using the service in the future.

But if the box says "no transfers"...

[SB5407]

Not that I don't whole heartedly agree that all the non-IP rights of first sale should apply and Redbox should be free to do this (because i do agree and they should be able to do this), but the legal commentary you linked to points out that because the decision hinged on the fact that the software company printed the statement "Required terms are inside the box" instead of the actual terms, that they could have prevented the problem by printing the actual terms on the outside of the box. Which frankly, sucks. Because companies then get to force thier terms on people for simply purchasing a copy of a work. It's my damn copy of the work, I should be able to do with it what I please subject to the same copyright law that books get.

Software vendors can take away from this decision some useful tips. Vendors may want to consider giving users the opportunity to review their license terms and conditions by printing them on the outside of their software packaging or otherwise making them available at retail outlets where their products are sold. For phone orders, vendors may consider providing purchasers copies of the license agreement in advance of consummating a transaction, or at least informing purchasers at the time of purchase that the transaction is subject to the terms of the license agreement.

Re:But if the box says "no transfers"...

[BronsCon]

they could have prevented the problem by printing the actual terms on the outside of the box. Which frankly, sucks.

That's how contract law works. Both parties state their terms and, when an agreement is met, the contract is made. A purchase is a contract, mind you.

If you don't agree to the terms, don't enter into that contract, it's as simple as that.

If the license terms were on the box, Redbox wouldn't have bought the DVDs. In fact, if the license terms were on the box and enforceable, I'm fairly certain most people wouldn't buy them. Sure, at first they would, because they wouldn't know any better; but once we started seeing lives ruined over loaned DVDs, well...

And that's why, even though that case was decided almost 22 years ago, we still don't see license terms printed on boxes.

Re:But if the box says "no transfers"...

[SB5407]

Both parties state their terms

Aha! That's the part I have a problem with. The software distributor gets to state their terms, but the potential buyer at the store effectively does not. And, there is no negotiation for consideration and/or terms. Therefore, I would like law and/or jurisprudence to come down and state "There was no negotiation, and therefore, no agreement could have been entered into".

Re:But if the box says "no transfers"...

[BronsCon]

Contracts can be negotiated, no law says they must be. Of course, I stand to be corrected by someone who's passed a BAR exam, but I expect to be allowed to examine credentials before accepting them.

Re:But if the box says "no transfers"...

[Anonymous Coward]

Therefore, I would like law and/or jurisprudence to come down and state "There was no negotiation, and therefore, no agreement could have been entered into".

That should be a no-brainer, super-low bar.

You don't go far enough, though. It's hard for anyone to take seriously that "terms printed on the box" are the same as terms of the sale. There are lots of things printed on the box, such as the fact that Luke Skywalker is the galaxy's last hope or that Arnold is The Terminator. Did you agree to those things, too?

Not to mention that you buy plenty of things before ever seeing the box.

You don't ever signal your agreement, you don't ever communicate your agreement, and the other party doesn't even have any evidence that you agreed. All they can do is pretend to have inferred it. "You bought it, so we assume you ended up agreeing to it."

The type of "contract" that we're talking about here, would only ever be attempted by a criminal who had fraudulent intent. There are not any legitimate uses for "now that you've bought it, let me tell you more about what you agreed to."

I have worked at a software company where we got customers to actually sign contracts at the time they handed us the check, and then that contract was stored in our file cabinet. It's a totally viable way to do business and I got a couple decades of paychecks out of it. If today's media and software companies can't make it work for them, that's their problem and we shouldn't tolerate them acting like criminals all simply because "it's too hard to get agreement prior to the sale." Boo hoo!

These terms are bullshit and any company trying to defraid people with them, should be treated as what they are. A legitimate business wouldn't ever do anything even like that, ever.

And yes, also, you didn't get to negotiate. Or rather, you didn't decide when you were negotiating. Sounds like they somehow sent you a piece of paper but never had you sign it and return it, yes? You know, you could mail them your terms, too. No, they probably won't sign them and send them back, but their argument is that such things aren't needed. Terms-agreement isn't an interactive process, according to them.

If they can negotiate terms after the sale, so can you. If they claim that "negotiation" consists of telling (usually obscurely and/or indirectly) the other person the terms and not taking no for an answer -- actually, not even ever getting an answer at all -- why can't you?

Once you open the doors to absolutely unsupported bullshit that is totally unlike all other contract negotiations, anything goes. When a bully unilaterally changes the rules to "there are no rules" right before punching you, they shouldn't be surprised to end up with a bloody nose too.

Re:But if the box says "no transfers"...

[BronsCon]

I'm sad that you posted this anonymously, you seem like someone I'd like to read more from.

Re:But if the box says "no transfers"...

[Gr8Apes]

I generally hold all EULAs/License terms of this type that restrict right of First Sale to be in violation of that right, and therefore subject to the exclusion clause found in most of those types of agreements (should anything be found to be in violation or unenforceable, the rest of the agreement holds...) and merrily go about my set by precedent legal activities, no matter what those terms say. It's why most people never bother reading EULAs, because they're technically nothing more than CYA toilet paper for the seller. In fact, the only place that I've seen EULAs really have any teeth is in protecting the seller from legal action, and then only in certain cases such as in the commonly seen "this product not suitable for use in critical applications" clauses.

Personally, I view anything that's not signed by me as unenforceable on me in general. So, unless you have proof I agreed to something, I didn't agree to it, no matter what is said and so far as I know the US legal system agrees with that view in 99+% of the cases.

Re:But if the box says "no transfers"...

[MitchDev]

" purchase is a contract, mind you."

So if you steal/shoplift the disk, there is no "agreement".... ;)

Re:But if the box says "no transfers"...

[sexconker]

There has to be opportunity to negotiate to meet the legal "meeting of the minds" requirement.
If there's no opportunity to negotiate, there's no contract. A mere purchase is not a contract. A sale (with a bill of sale, etc.) often is.

One sided contracts hold some weight, but not much, because there's no indication that a person was informed of, understood, or agreed to the egregious bullshit hidden deep within. This is why you sign and initial multiple times on a rental agreement, purchase agreement for a vehicle, gym membership, etc. underneath specific clauses.

This is why shysty shops have a sign saying "ALL SALES FINAL" posted somewhere in view of the counter. The shop owner can spout his bullshit about how he'll treat you right, but he'll lie about what he said if you take him to court. Instead, he'll bring a photo of that sign as seen from where you stood at the counter, and a copy of the dated receipt which has similar language on the bottom / back. Proceeding with the transaction despite that clear and obvious sign and the ability to ask the shop owner about it counts. Shrink wrap licenses don't count. Printing terms on the box may count, if they're big enough and obvious enough that a person would see and read them before deciding to make a purchase.

Too this date, I've only seen small print, summary terms and conditions on the box of most products. That's not going to convince anyone that someone agreed to them.

Re:But if the box says "no transfers"...

[Anonymous Coward]

A purchase is a purchase. A license is a contract. Please stop contributing to the confusion of the two. The studios don't get to call it a purchase when it benefits them, then switch to calling it a license when that benefits them more.

Re:But if the box says "no transfers"...

[BronsCon]

Verbal agreements are enforceable contracts, as are contracts "signed" by the exchange of goods, services, or money. You can view it however you want, but the law is clear and there's plenty of precedent.

That said, I wipe my ass with in-box EULAs all the time. No advance knowledge of terms = no contract; that much we agree on.

Re:But if the box says "no transfers"...

[BronsCon]

That was not an intended interpretation, clearly, but I think you might actually be on to something. Of course, if the contract is printed on the box and states that, by opening the box and using the product, you're implicitly agreeing to the terms of the contract, well...

Re:But if the box says "no transfers"...

[BronsCon]

I'm not sure if you think you're arguing or agreeing with me, here. Right up until "Shrink wrap licenses don't count. Printing terms on the box may count, if they're big enough and obvious enough that a person would see and read them before deciding to make a purchase." it sounds like you're arguing, but then you stated precisely what I've been relaying in various threads on this page, so I think we're in agreement.

Too this date, I've only seen small print, summary terms and conditions on the box of most products. That's not going to convince anyone that someone agreed to them.

Indeed, and that's all we'll ever see because the boxes aren't big enough to print the full EULA on.

As for negotiation, all that's really required is that you're not forced or coerced to sign. Getting up and walking away is considered a negotiation tactic; and it's quite an effective one, as anyone who's ever managed to not get ripped off by a car dealership can tell you.

Re:But if the box says "no transfers"...

[BronsCon]

When you understand the meanings of words, it's easy to see how wrong you are. A contract can be written (e.g. on a receipt for payment) and does, indeed, cover sales. Sales, mind you, are exchanges of commodities for money, while buying something means obtaining it in exchange for payment; in other words, buying something means completing a sale. A purchase is the act of acquiring something by paying for it, which means buying it, which means completing a sale, which is a contract. Period.

Dictionary definitions attached for reference.

contract
noun
noun: contract; plural noun: contracts
käntrakt/
1. a written or spoken agreement, especially one concerning employment, sales, or tenancy, that is intended to be enforceable by law.

purchase
prCHs/
verb
verb: purchase; 3rd person present: purchases; past tense: purchased; past participle: purchased; gerund or present participle: purchasing
1. acquire (something) by paying for it; buy.

buy
b/
verb
verb: buy; 3rd person present: buys; past tense: bought; past participle: bought; gerund or present participle: buying
1. obtain in exchange for payment.

sale
sl/
noun
noun: sale; plural noun: sales
1. the exchange of a commodity for money; the action of selling something.

Re:But if the box says "no transfers"...

[Anonymous Coward]

Great Post - highly informative.

Re:But if the box says "no transfers"...

[Anonymous Coward]

Conditional Sales Agreements must be in writing and signed by both parties prior to the sale in order to be enforceable.

Re:But if the box says "no transfers"...

[Anonymous Coward]

There has to be opportunity to negotiate to meet the legal "meeting of the minds" requirement.
If there's no opportunity to negotiate, there's no contract. A mere purchase is not a contract. A sale (with a bill of sale, etc.) often is....One sided contracts hold some weight, but not much, because there's no indication that a person was informed of, understood, or agreed to the egregious bullshit hidden deep within. This is why you sign and initial multiple times on a rental agreement, purchase agreement for a vehicle, gym membership, etc. underneath specific clauses.

There is a more fundamental issue here. The US legal profession would love to have everybody believe that contract (and property) law supersedes the Bill of Rights - but that's unethical practice of law, a violation of an universal and inalienable right. A lessor law can not supersede the highest law in the land. This is especially important from the perspective of individual rights, meaning living human beings, not organizations.

By the oaths they have sworn, the US legal profession - and any legal profession that fundamental rights - is obligated to recognize substantial limitations on the power of contract to infringe fundamental rights. Putting that in other terms, a sale, a meeting of the minds, a shrink wrap agreement, an "ALL SALES FINAL" sign, even a written contract with multiple signatures - is not in itself sufficient to create a legitimate and legally binding contract from the perspective of ethical practice of law - because the legal profession as a class in society is in a position of ethical conflict of interest with respect to what can go into contracts and what is enforceable. Anything that broadens the scope and complexity of contract law also broadens the demand for the services of legal professionals. Also, one should be able to act according to reasonable expectations regarding the legal system - anything else creates an artificial demand for the services of lawyers - and that includes acting under the expectation that invalid provisions in contracts will be held invalid and can be ignored (if they couldn't be ignored, one would need to hire a battalion of lawyers to figure out what in fact were legitimate provisions).

Just as one can not contract for murder, one should not be able to have fraud or many other violations of fundamental rights in a contract: an attempt to do so should disbar the legal professionals involved, and severe penalties should apply to corporate executives and other business manager or owners who attempt to institute policies in violation of fundamental rights. Within reason, what the business owner or his or her agent say should in fact be binding, and ANY attempt to get around this using contract law (or property law, or IP law) must be considered an infringement of fundamental rights "under the colour of law". In legal systems based upon precedent, any precedent to the contrary would be unethical practice of law, and thus no precedent (from ANY court) can alter this conclusion.

This is not merely an abstract issue. Almost every software license, for example, prohibits reverse engineering - but that is merely an exercise of curiosity, the right to freedom of thought, and also an exercise of the right to long term public oversight over business. Hence, these nearly ubiquitous terms are in fact illegal provisions - so why the lawyers writing these contracts been disbarred? The fact that this hasn't happened is telling: it shows us that there are very serious problems in the US (and other) legal systems with respect to contract.

Unfortunately, this kind of casual abuse of fundamental rights happens all over the place in countries with bad problems in legal ethics - legal ethics problems are effectively a disease in the legal system which is slowly killing the patient. The USA has the worst case of this disease of any country in the history of the world - and in the increasingly global community we live in, the disease is spreading.

Re:But if the box says "no transfers"...

[hai_Priesty]

And also because of the over-the-top copyright infringement punishments for the unfortunate people that got sued to make an example out of, it does seem that in the USA that to steal movie DVDs from your local chain probably brings less repercussions than if you torrented it............

Re:But if the box says "no transfers"...

[BronsCon]

That is an accurate assessment. In most states, if you've stolen less than $1000 ($500 in some, other limits in others), you're only charged with a misdemeanor and, while you may serve up to a year for that, you usually won't for stealing small items. The fines typically don't exceed the value of the stolen merchandise by much, either.

I learned this while working retail, when I asked my loss prevention manager why he didn't go after the guy he had just watched steal something. He told me that $20 item represented just a small portion of $900 in documented (photographically and on video) items that man had stolen and he was very close to a felony charge; he would bust him then.

Even at that, though, at $20 a pop, $1000 is 50 movies and there are dozens of places to steal them from. You can build quite a collection without reaching felony levels at any one retailer; and they don't share details on who's stealing, for the most part, so it's exceedingly unlikely they'll team up to push for felony charges based on the total stolen from all of them.

Not that I'm advocating stealing from retails establishments, of course.

COPYRIGHTS are a two-way streak...

[PortHaven]

Disney is a dick...

I have already decided I am going to have to start pirating. Why? Because Disney is such a dick regarding sales of 3D (love it or hate it, is not the debate, availability is).

But I have had a lot of licenses for digital content that has been lost. Oh, wait...no I haven't. In fact for ALL the exclamations of record labels and movie companies, I have yet to receive an actual license. I think they should argue that fact. The labels, and movie companies have even repeatedly exclaimed that the discs themselves are NOT licenses. And if they can arbitrarily retract any license without compensation. Then don't expect us to respect their copyright claims.

This was already sued and lost

[SuperKendall]

A while ago a company (I think it was CDBaby) tried to offer a service where if you proved you had a real CD, they would allow you to stream the contents of the CD from their servers - so no-one was streaming music for anything they didn't already have a physical copy of.

They still lost, and this I think will be even a more clear cut loss.

Re:This was already sued and lost

[SScorpio]

How so? You walk into a Walmart and movie on Bluray that comes with a digital download for $10. You take the slip of paper with the digital code and sell it to a friend for $5. Your friend activates the digital copy and watches the movie and you watch the movie on your disk.

Redbox goes into Walmart and buys a copy of the same movie. Why are they treated differently?

Re:This was already sued and lost

[omnichad]

I think that means there is clear case law that the digital license is separate from the viewing rights of the disc. First Sale doctrine applies.

Re:This was already sued and lost

[UnknowingFool]

Redbox goes into Walmart and buys a copy of the same movie. Why are they treated differently?

Redbox is retailer. You are not.There are different rules if you are business or a private individual especially in copyright law. If you did this for a living, I would think the movie studios would go after you.

Re:This was already sued and lost

[squiggleslash]

Redbox goes into Walmart and buys a copy of the same movie. Why are they treated differently?

Because RedBox is easier to find and prosecute, and the payoff would be bigger. To sue "you" in your description, they'd have to know you did it, know who you are, and they'd be lucky to get a few hundred dollars in compensation.

It's the same thing as, say, littering. Someone throwing a paper cup out of their car window on I-95 with no police around is treated entirely differently to someone who loads up their truck with paper cups, chicken bones, and unsold copies of Linux Journal (too soon?), and dumps them in full view of Donald Trump on a Mar-a-Lago golf course, before thumbing his nose and saying "Hey, here's my driver's license you orange asshole."

Re:This was already sued and lost

[Distan]

It was MP3.com (not CDBaby) that lost that lawsuit.

Anyway, that precedent doesn't apply at all. The current Redbox case is completely different.

MP3.com was making this argument: Since you have the CD you already have the right to listen to a ripped copy. The ripped copy that MP3.com already has on its servers is identical to the copy you would you make yourself. Therefore you have the right to listen to MP3.com's copy instead of having to make your own personal copy.

The court didn't buy that theory. Just because *you* have the right to make a copy to listen to doesn't mean mp3.com could share their copy with you. And even if the copies are digitally identical they are still separate copies that came from separate first sales.

Redbox isn't trying to do anything like this. All they are doing is saying "hey, we bought this package that contained two widgets (a disk and a piece of paper) and we are going to sell or rent those two widgets in separate transactions.

Or...

[freeze128]

...Or Disney could just change their download activation servers to not allow the block of codes sold to RedBox. Isn't that what the digital activation servers are FOR?

Re:Or...

[edtice1559]

They don't have an agreement with Redbox. Redbox is buying the discs retail. In other words, they buy the retail disc/code, sell the code and rent out the disc. Seems pretty reasonable to me. No different than if I bought a dictionary, cut it in half, and sold one person A-M and another N-Z

This time, I think they have a case

[Anonymous Coward]

Normally I would be completely against over-zealous, greedy copyright holders. However, I think I've got to side with Disney on this one. Those digital codes are provided for the OWNER OF THE PHYSICAL COPY in order to provide more value to the purchaser. I'm pretty sure their terms on the paper with the digital code state this explicitly.

As an additional downside to consumers, this type of abuse will only result in forcing studios to stop bundling digital codes with their physical disc sales.

Re:This time, I think they have a case

[Fly Swatter]

Or they could have printed the codes on the actual disk, and include terms that redistribution of the code without the disk revokes all rights to said content. Just sticking a pamphlet in with the disk makes it two distinct physical items IMHO. Don't worry though the lawyers will win regardless of the outcome.

Re:This time, I think they have a case

[Distan]

> Or they could have printed the codes on the actual disk, and include terms that redistribution of the code without the disk revokes all rights to said content.

You seem to be thinking that the law is consistent. Software falls into a somewhat unique area where "terms of use" are the norm (even if the precedent determining whether they are binding is weak).

Most things you physically purchase at retail do not and can not have terms attached. A chair maker cannot sell rocking chairs with a disclaimer that "your right to use this chair is revoked if you remove the rockers from the legs".

Disney is trying to have their "digital code" sales treated like they are software sales. Redbox is saying they should be treated like DVD sales. The precedent and law is different for software vs movies.

Re: The codes come with the discs, and are paid fo

[Anonymous Coward]

Yes it is, copyright case law is pretty clear that you can't copyright a number, or a code, or even a collection of such data that doesn't include any creative elements like editorials, cover art, etc.

There's first sale but there's also this problem that a code is not protected by copyright anyway.

So if Disney wants to deny access to the second or third owner of the code , they are welcome to because they didn't even make any agreement with them. And if Disney wants to ensure they get some minimum profit out of it , they could just raise their wholesale price. No, instead they make convoluted arrangements and expect everyone to play by rules they write , and they aren't wrong because we have let them change the rules before ... so blame Disney but also blame US Congress for making this mess possible.

Who sends it?

[Cajun Hell]

Redbox sells code to download. User uses code to download file from .. where? Are they downloading from Disney or from Redbox?

If they're just selling Disney downloads, I don't understand what Disney's claim would be.

If they're selling their own pirated copies of Disney movies, then I'm surprised this is merely a civil action.

Re:Who sends it?

[Fly Swatter]

Redbox buys it's dvds from a third party as they do not have any agreement with Disney. As such they are retail dvds that include a code as a benefit for the purchaser. The code is a Disney provided code, and I would guess the content is on Disney servers.

Re:Who sends it?

[Anonymous Coward]

The price includes the code. If you buy the same disc without the code, then it costs less by the value of the code.

Read the complaint

[Anonymous Coward]

From the complaint:

Plaintiffs sell Codes as part of combination packages (“Combo Packs”) that include a Blu-ray disc, a DVD, and a Code. The outside packaging is clearly marked: “Codes are not for sale or transfer.”

Re:Read the complaint

[Anonymous Coward]

Wow, it's even worse for Redbox:

Before redeeming the Code through RedeemDigitalMovie.com, an individual must agree to the following by entering the Code and clicking "Redeem": "By redeeming a digital code, you represent that you are the owner of the physical product that accompanied the digital code at the time of purchase. The redemption of a digital code sold or transferred separate from the original physical product is prohibited.

Re:Read the complaint

[omnichad]

That makes the purchaser in violation of the ToS, not Redbox. Of course that makes them a potential accomplice.

But don't you suspect that they changed these terms when they made the lawsuit public? These probably aren't the terms that were in effect when the earlier codes were originally sold by Redbox.

Either way, just because it's in the terms doesn't mean it's not a violation of the First-Sale Doctrine and has no legal weight.

Re:Read the complaint

[Anonymous Coward]

Yes, it makes them potentially liable for contributory copyright infringement, which is exactly what they're being sued for. Moreover, the 'not for transfer' was absolutely on there from way back- I first noticed it at least 3 years ago.

The first sale doctrine applies to a particular copy of the work. Which particular copy of the work are you selling when you sell the code? One of the several hundred million copies of the various movies Disney keeps on their servers, one each for each code, even the ones never redeemed, no doubt.

Obviously it's a license. Go back to law school or at least study some copyright law before spouting off what "has no legal weight."

17 USC 109:

"...(T)he owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord... The privileges... do not, unless authorized by the copyright owner, extend to any person who has acquired possession of the copy or phonorecord from the copyright owner, by rental, lease, loan, or otherwise, without acquiring ownership of it."

Re:Read the complaint

[dgatwood]

Arguably, that could make Redbox guilty of tortious interference, assuming such a bizarre and unexpected contract term is found to somehow be legal (see my reductio ad absurdum elsewhere in the comments), but either way, it isn't a copyright violation.

Re:Read the complaint

[sexconker]

Accomplice? What crime was committed? Not agreeing to a private EULA / ToS is not a crime, nor is breaking it.

Re:Read the complaint

[sexconker]

"The redemption of a digital code sold or transferred separate from the original physical product is prohibited."

If someone can in fact redeem a code without owning the disc, then it's not actually prohibited, is it?

Lisa: You can't drive, dad. He's got your license.
Homer Simpson: Well, I'm gonna try anyway.
[starts the car]
Homer Simpson: It worked! It's a miracle!

Further, buy the disc + code, redeem the code, sell the disc under the first sale doctrine (back to Redbox by slotting it into any Redbox kiosk and having the $X hold on your credit card removed).

Re:Read the complaint

[omnichad]

Sort of my point. Only the purchaser (Redbox's customer) would be breaking the EULA. Suing Redbox should make no sense. But Disney knows the end users don't have enough money to bother with.

Re:Read the complaint

[omnichad]

The first sale doctrine applies to a particular copy of the work.

The first sale doctrine applies to EVERYTHING. Not just copyrighted work. If you buy it, you can sell it. If you license something, you can't sell the license. Nobody has licensed the content until the code is redeemed (at least that should be Redbox's argument).

Copyright Troll Disney

[LeftCoastThinker]

Disney is trying to conflate Federal Copyright Law with unenforceable post purchase terms found inside the box (per US supreme court decision). Disney may not like it, but the digital code is part of what is purchased (and in fact propping up the price of Bluray discs to an extent) and is covered under the first sale principle. The sad fact is that this is really Congress fault over at least the last 14 years. The Democrat controlled congress (2006 to 2014?) did nothing to fix or clarify ownership rights or pass any kind of consumer rights bill for digital goods. Now that the Republicans control the Congress,I am pretty sure nothing will be done on that front.

I hope that Redbox also counter sues Disney for legal costs and punitive damages for filing a frivolous lawsuit that has already been decided by the supreme court... At least Redbox has the cash to bend Disney over. A lot of smaller companies would just give in because the legal battle will be expensive.

Re:Copyright Troll Disney

[Anonymous Coward]

The Democrat controlled congress (2006 to 2014?) did nothing to fix or clarify ownership rights or pass any kind of consumer rights bill for digital goods. Now that the Republicans control the Congress,I am pretty sure nothing will be done on that front.

So in other words, Congress is completely ineffectual no matter who is in charge.

Re:Copyright Troll Disney

[jedidiah]

> So in other words, Congress is completely ineffectual no matter who is in charge.

It was designed to be that way.

Distrust anyone that advocates we alter the way our government works in order to "get something done" or get past congressional deadlock.

Re:Copyright Troll Disney

[Anonymous Coward]

Now that the Republicans control the Congress,I am pretty sure nothing will be done on that front.

Republicans? Pass consumer protection laws? That limit the rights of corporations? You can safely assume that will never fucking happen.

They're in the middle of jamming through a tax break for the wealthy and corporations which will be paid for by the middle class. They're not ever going to do something like pass a law enforcing consumer rights. They don't give a fuck about consumer rights.

Republicans care about corporate rights, and the right to impose their asshole religious beliefs on the rest of us. Beyond that, you get the right to die in the streets if you're unable to afford healthcare.

All you suckers who thought Trump was going to drain the swamp? Well, he is the fucking swamp.

Re:Copyright Troll Disney

[Anonymous Coward]

Trump != Congress. You can vote for one party in one section of the government and another party in another section of the government. Remind the Democrats that this is what happens when they get too corrupt.

Re:Copyright Troll Disney

[Anonymous Coward]

I will, particularly all those Democratic Congressmen that own the hotels and conference space the lobbyists use when they come to see them.

Re:Copyright Troll Disney

[Anonymous Coward]

I guess you didn't bother to read the claim Disney filed then? They aren't relying on the terms in the box at all, but rather the terms for actually redeeming the code.

The terms for redeeming require the redeemer of the code to be the owner of the disc. These terms are agreed to by the redeemer at the time of redeeming the code. Disney are claiming that since the redeemer of the codes Redbox is selling doesn't own the disc the redeemer is violating copyright by proceeding to download the film associated with the code. They are claiming Redbox is guilty of contributory infringement by encouraging the purchasers of the codes to download the movie in violation of the agreement which Disney claims Redbox must be aware of.

The case will rest on whether the court considers the redeemers of the code to be violating copyright or not. This doesn't seem quite so clear cut to me.

time travellers

[Anonymous Coward]

hey disney, you can't stop the past. freaking dinosaurs!

In other words

[Opportunist]

Use Bittorrent and avoid all the hassle.

Re: The codes come with the discs, and are paid fo

[Anonymous Coward]

So what, you can find similar wording on a box of Twinkies. We have anti trust laws that protect secondary markets. They were partly created in response to book publishers including page one contract in books. These contracts attempted to set the price of books at used books stores and libraries.

Dammit

[WolfgangVL]

This is Disney, so even if Redbox wins this, they will lose anyway when ol Steamboat Willy rewrites the copyright laws again.

It's OK

[Mazgula]

I steal all my movies anyways.

Re:Retail? Has Redbox not heard of distributors?

[alva_edison]

I think the article meant their getting the retail version, not that they aren't going through a distributor. For other studios they get a special version that's stripped down from what the retail version has, so it's even cheaper than going through a distributor.

Looks like...

[Anonymous Coward]

Looks like to me:
Disney has a case against end user who tries to download digital copy without owning physical disc (the download system will no doubt require them to assert that they have the physical disc).
End user has a case against RedBox for selling them the code without warning them that it's probably illegal for them to use it.
But Disney has no real case against RedBox.

Not that the courts will necessarily see it that way though.

Re:Looks like...

[Anonymous Coward]

Possibly contributory infringement (after all, RedBox knows exactly what it is selling, and the reason the individuals want to buy it).

It is certainly an innovative business model for RedBox (get someone else to pay a substantial part of the cost of the disk by selling the download code, and then rent the physical disk out to other customers again and again).

The decision as to whether that is allowed will depend on the exact terms of the current license (details always matter).

I believe the only sure thing that will happen is that Disney will fix the issue one way or another long term (if they lose this case, they change the license or eliminate digital downloads entirely).

Re: The codes come with the discs, and are paid fo

[Anonymous Coward]

Here's a code from the complaint:

KMPW8WJ7YW6

I've stated a fact, yes, and therefore have not infringed any copyright. However, if I somehow charge you $1 to read this post, aware of the fact that you want to read this post to get the code and watch the movie, I have absolutely contributed to infringement of the copyright in the movie. That's what contributory infringement is, and one of the things Redbox is being accused of. In fact, it's the only copyright-related count in the complaint. It's a very well-thought-out complaint: either Redbox is contributing to the infringement of the copyright because they know that the code will be used in a way inconsistent with the terms or they're committing false advertising (by not disclosing relevant terms) under Cal. Bus. & Prof. Code 17500.

Also, it's a license, not something subject to first sale. You can tell this, easily, again by reading the outside of the box: "Codes are subject to expiration after (in the case of "Beauty and the Beast") June 6, 2022."

Re:Retail? Hasn't Redbox heard of distributors?

[HornWumpus]

A distributer in some third world shithole. The grey market rules!

Re: The codes come with the discs, and are paid fo

[dgatwood]

However, if I somehow charge you $1 to read this post, aware of the fact that you want to read this post to get the code and watch the movie, I have absolutely contributed to infringement of the copyright in the movie.

No, you haven't. The codes are one-time-use codes. If you charge me $1 to read the post, aware of the fact that I'm reading the post to get the code and watch the movie, you're guilty of fraud, not copyright infringement, because that code won't work for me or anyone else.

More to the point, it can reasonably be argued that statements of non-transferability are statements of fact rather than contractual terms binding upon the recipient, because once used, neither the codes nor the content that they allow you to access can be transferred to anyone, because the website doesn't provide that ability.

Finally, Disney's argument is utterly absurd prima facie. Here's a quick reductio ad absurdum. Consider the following two situations:

• I by a Blu-Ray that contains a code for $10 and sell the code to my neighbor for $5.
• My neighbor buys the same Blu-Ray for $10 and redeems the code, then sells me the Blu-Ray for $5.

In both cases, the result is exactly the same: my neighbor has the code, and I have the disc, and we each spent $5 for that privilege. However, under Disney's fallacious logic, the first one is a copyright licensing violation, and the second one is legal use of the right of first sale, even though the result is exactly the same, and the only difference is in how the funds were transferred. Nothing in the Copyright Act can be reasonably construed to intend such an utterly bizarre distinction in legality between those essentially identical acts, and any judge in his/her right mind should laugh in their faces, declare summary judgment for RedBox, and take the rest of the afternoon off for a round of golf.

Just saying.

Re: The codes come with the discs, and are paid fo

[dgatwood]

Gah. Buy, not by. Stupid typos.

That would bar ALL store sales of anything. But...

[raymorris]

>. distributor gets to state their terms, but the potential buyer at the store effectively does not. And, there is no negotiation for consideration and/or terms. Therefore, I would like law and/or jurisprudence to come down and state "There was no negotiation, and therefore, no agreement could have been entered into".

That is true of ALL retail purchases. Whether you're buying a lawnmower, a pair of headphones, or software, the retail purchaser does not directly negotiate with the manufacturer or distributor regarding the terms of sale. They only choose which offered terms to accept or not (example I can choose to buy an iPhone, a Samsung, a generic, or none). There is practically never any negotiation of retail sales contracts. Does that mean we have to void all sales? Retail purchases are no longer valid? That seems an extreme "cure" for a relatively minor issue. There are, however, other cures, in existing law.

One item of existing law says that "take it or leave it" contracts are interpreted to the advantage of the party who didn't write the terms. In this case, that's the purchaser. If the terms of the digital download sale are ambiguous regarding whether it's transferrable, the purchaser (Netflix) wins on the that point. The idea is that since the seller wrote the terms, anything about the terms is the seller's fault, so they are the ones to lose out when something is unclear.

Unreasonable terms in such contracts are also not enforcible. The exact test of reasonableness varies by jurisdiction, but the basic idea is "if the person read the contract and had the opportunity to negotiate, would they reasonably accept this part of the contract?"

Other things that apply to non-negotiated contracts include implied warranties. If something is offered for sale on a take-it-or-leave basis, where warranties are not negotiated, there is an automatic warranty that the item is fit for sale. If the item is offered / advertised for a particular purpose, there is an automatic warranty that it is fit for that purpose.

Re:Retail? Has Redbox not heard of distributors?

[sexconker]

They do go through a distributor. They just don't have a contract with Disney.

Redbox would love to have a contract with Disney like they do with other studios. But Disney either said "fuck you" or said "sure, for $$$$$$$$$$, and 2 months after retail availability, and you have to pull everything once we put it in the vault 2 weeks after that". Redbox, not being cucks, saw that it made more sense to buy DVDs/BluRays directly and rent/sell those, with no strings attached to Disney.

Now Disney wants those strings and is crying that Redbox didn't accept their assrape deal.

Fuck you, Mickey.

Re:Retail? Has Redbox not heard of distributors?

[MitchDev]

Makes me glad my daughter doesn't care for most Disney stuff....

artificial scarcity

[Anonymous Coward]

Disney intentionally makes their movies hard to find ... because reasons. Just trying finding a copy of Sleeping Beauty, Peter Pan, 101 Dalmatians ... They're one of the few studios I actively pirate from because I can't get ahold of movies that have been out for over 50 years legally without buying some used copy on VHS from Ebay.

That said, I'm sure Disney frowns upon used copies as well.

Re:artificial scarcity

[Anonymous Coward]

All 3 of those should be in the public domain. Fuck 'em.

Re:That would bar ALL store sales of anything. But

[SB5407]

Actually, I agree with what you're saying... I think.

What I mean is that I I think we should take the law concerning purchases made without contracts and--depending on far you want to take it--apply it to software purchases and/or purchases made without signatures and/or purchases made without actual negotiation.

If Redbox purchases a Disney DVD with terms attached, the sale should be treated as if it was purchased without a contract. All other purchases made with contracts (contract being defined as--again depending on h far you want to take it-- requiring a signature or actual negotiation) would still be under contract law.

SPLA... Software Provider License Agreement..

[Anonymous Coward]

My computer has a printed SPLA posted clearly on the side of my computer that lists all of the terms they need to adhere to in order for their software to be installed on my computer.

By allowing their software to install on my computer, they've agreed to those terms in full.

1) The software being installed for a particular function is fully guaranteed for the intended function and fully covers any damages or costs incurred through the use of said software.
2) The software being installed agrees that this SPLA supersedes any and all EULAs written by the Software Provider.
3) The software being installed will NOT record, harvest, transmit any information at all to the Software Provider without full written consent by the computer owner.
4) The Software Provider, if it does not agree with this SPLA, must prevent their software from ever installing.
5) Allowing their software to be installed, with the SPLA clearly posted on the outside of said computer implies full consent of their agreement with the SPLA terms.
6) Failure to meet all of the SPLA terms will require the Software Provider to pony up a cool Million in fines and fees from the moment they've been notified of their transgressions, with an interest rate of 18%, compounded hourly, with a penalty rate of 200% if not paid within 30 days of their violation.

Re: Retail? Has Redbox not heard of distributors?

[Anonymous Coward]

And also This ____^is

Don't do this...

[Leslie43]

Disney watches Torrents like a hawk, probably more than any other media company.

Re:Don't do this...

[Opportunist]

That's what private trackers are for. To keep the pests out.

A contract has four parts

[raymorris]

A contract has four parts:

An offer
An acceptance
A meeting of the minds (what was accepted is the same as what was offered)
Exchange of consideration (payment or work performed)

Here's an example:
Me: If you mow my lawn, I'll pay you $50
You: Okay, I'll mow it for $50
Me: Front and back, with edging
You: Yep, front and back, with edging
You then mow my lawn.

I'd owe you $50, because we had a contract. I offered you $50, you accepted, we were talking about the same thing, and you actually did your part. That's a contract.

> sale should be treated as if it was purchased without a contract.

Offer: Store as says "Pickles, 24oz, $1.99â
Acceptance: Customer picks up the pickles and takes them to the cashier
Meeting of the minds: Customer and store both have this particular type of pickles in mind
Exchange of consideration: Customer pays, store hands them bag with pickles in it

Any sale IS a contract, once the sale is completed.

> All other purchases made with contracts (contract being defined as--again depending on h far you want to take it-- requiring a signature or actual negotiation)

That's not the definition of contract. There's no definition of "contract" anywhere in law that mentions a signature. A signature is just EVIDENCE that the conversation (contract) took place, so the person can't later say "I don't remember ever talking to that person or agreeing to anything".

  Certain types of contracts, generally those that can't possibly be finished within one year, are *unenforceable* in court unless written, because it's too easy for people to have different memories of conversations that occurred years ago. It's still a contract, but the court will essentially say "we can't be sure what the terms of the contract we're; either party may be remembering wrong".

Re:A contract has four parts

[SB5407]

Good point. Or points, rather :-)

Re:A contract has four parts

[Twanfox]

In your example, is it important to note who the contract is with? In other words, the 'sale should be treated as if it was purchased without a contract' part is a contract of exchange (for lack of a better term) between the retail store and the customer. No where in there is the contract with the MAKER OF THE GOOD, in this case, Disney.

Somehow, I doubt that, without appropriate power of attorney or other legal documents, a retail store like Target could enter Disney into a contract with a customer in one of their stores.

Dang wish I knew about this sooner

[PortHaven]

Purchased Frozen, Finding Dory, and Dr. Strange - total price $15.

Well here is the crux

[PortHaven]

1. Digital editions can be purchased directly without buying discs.
2. Digital editions are often given away as codes.
3. Disney is arguing about licenses. Well Mr. Disney? Where the !@#$ are my licenses? I have yet to get one...

4. Disney is shuttering their digital Disney Anywhere site and migrating to their new Movies Anywhere site. Thousands of people are going to lose ALL the digital editions they have purchased. And the DOJ won't do a damn thing. So !@#$% Disney.

The Mouse is a rights offender.

You cannot sell what you do not own

[raymorris]

What you say is true, but has no practical effect in this instance. The store sells exactly what they bought - whatever is in the box, with whatever terms and promises appear in or on the box. They can't sell what they don't have.

There are two possibilities:
Disney sold what they intended to sell, a Blu-Ray combined with a license for the original retail purchaser to download a copy, using the code included in the box.

If that's what the store bought, that's what they can sell. Netflix would have purchased a disc at retail, and a license for THEM to download a copy.

Alternatively, if the Disney sold a FULLY TRANSFERABLE right to a digital copy, the store bought that and sold it to Netflix, who can sell it to you.

Either way, the purchaser (Netflix in this case) is buying *whatever* the store bought, the store is basically the mailman. If the store bought a non-transferable right, valid only for the original retail purchaser of the package it doesn't magically become fully transferable under any contract law. (First sale doctrine applies only to tangible copies, and only those copies that are owned, not licensed or leased.)

The exact terms that Disney used in the offer, and whether they are inside or outside of the package, will determine what they sold. It doesn't matter if the item was delivered by UPS, FedEx or a retail store - Netflix ends up getting whatever Disney sold.

An alternative point of view. Warranty is contract

[raymorris]

> contract of exchange (for lack of a better term) between the retail store and the customer. No where in there is the contract with the MAKER OF THE GOOD, in this case, Disney.

My other reply has my analysis of how I think it makes sense to look at this, but the retail customer DOES in fact also have a sale contract with the manufacturer / producer, which doesn't involve the store. The warranty included with most physical products is part of that contract.

Offer: If you buy my book (from any store) and bring it to me, I'll sign it.

When a box says "1 year manufacturer's warranty", that's an offer from the manufacturer to the retail customer - if you buy this product, will provide warranty. The purchaser can accept that offer by purchasing the product.

I haven't read the terms of the Disney offer, but it might say, in effect, "if you buy this DVD, we'll give you a download copy too". That would set up a contract between Disney and the purchaser.

It's ALSO possible for a retailer to be the "agent" of the manufacturer, but that would be more likely if the retailer sells only one brand and the manufacturer controls some aspects of how the retailer operates. An example would be a Dodge dealer. In some cases, a promise from Dodge dealers related to warranty, financing, etc could be binding on Dodge, because the dealer could be functioning as an agent of Dodge. No Power of Attorney document required.