Xbox One and the "first-sale doctrine"

  • 66 results
  • 1
  • 2
#51 Posted by TyCobb (1977 posts) -

@tycobb: Sure give me about five or so minutes.

http://www.theregister.co.uk/2001/11/28/us_court_ruling_nixes_software/ Heres one, I'll post more in a few.

The guy got off because Adobe never put the agreements in a physical form. He said he never ran the program which contained the EULA. EULAs are still binding according to this case and now almost all of the legal jargon is written down on the physical media and/or package (probably because of this case). You have to also understand that this article is from 2001 when physical media was still in full force.

#52 Posted by Lego_My_Eggo (1068 posts) -

@sexualbubblegumx: Part of the reason why SoftMan could do what they did is because they never agreed to the EULA in the first place.

Essentially, the court has said that the EULA does not apply to SoftMan, for a couple of interesting reasons. One is that SoftMan never agreed to the EULA, and is thus not bound by its terms:

In the instant case, the Court finds that there is only assent on the part of the consumer, if at all, when the consumer loads the Adobe program and begins the installation process. It is undisputed that SoftMan has never attempted to load the software that it sells. Consequently, the Court finds that SoftMan is not subject to the Adobe EULA.

The ruling also casts doubt on whether agreeing to a click-through license can truly be binding to the consumer.

The other aspect of the court's ruling is that the software was sold - not licensed - to SoftMan:

The Court understands fully why licensing has many advantages for software publishers. However, this preference does not alter the Court's analysis that the substance of the transaction at issue here is a sale and not a license.

Since this transaction is a sale, the first sale doctrine applies:

In short, the terms of the Adobe EULA at issue prohibit licensees from transferring or assigning any individual Adobe product that was originally distributed as part of a Collection unless it is transferred with all the software in the original Collection. This license provision conflicts with the first sale doctrine in copyright law, which gives the owner of a particular copy of a copyrighted work the right to dispose of that copy without the permission of the copyright owner.

#53 Posted by tourgen (4542 posts) -

@tycobb said:

@leonblade: You're wrong; you cannot resell/transfer the license unless you have permission from the publisher or whomever is listed in the license agreement.

And for the love of god, stop comparing software to physical objects!

that was challenged in court. A guy was reselling his Autodesk license on Ebay and Autodesk sued him. He won.

#54 Edited by TyCobb (1977 posts) -

@tourgen said:

@tycobb said:

@leonblade: You're wrong; you cannot resell/transfer the license unless you have permission from the publisher or whomever is listed in the license agreement.

And for the love of god, stop comparing software to physical objects!

that was challenged in court. A guy was reselling his Autodesk license on Ebay and Autodesk sued him. He won.

Not really: http://en.wikipedia.org/wiki/Vernor_v._Autodesk,_Inc.

He won the initial case, but the Ninth-Circuit reversed it. Vernor tried to get it re-opened in 2010 and was denied and then denied again in 2011 when he sought the Supreme Court.

#55 Posted by SexualBubblegumX (542 posts) -

Well It's about 3 AM so I got to get to bed but I do remember a Ruling last year that had a lot to do with no one actually reading UELAs and making them pretty powerless becuase of it, I'll find it for you guys tomorrow. So for box copies of PC Titles, you do have way more rights than digital ones which Is one of the reasons I'll never join in on that Steam sillyness.

#56 Posted by golguin (4119 posts) -

Well It's about 3 AM so I got to get to bed but I do remember a Ruling last year that had a lot to do with no one actually reading UELAs and making them pretty powerless becuase of it, I'll find it for you guys tomorrow. So for box copies of PC Titles, you do have way more rights than digital ones which Is one of the reasons I'll never join in on that Steam sillyness.

The truth is that courts in the US haven't really committed one way or another regarding this issue, which is why I made this thread to hear what people think. The most alarming thing I continue to see is how people talk as if a "license" is some magical thing that allows companies to do as they please. They fail to realize that it was simply a clever little trick to prevent people from treating their special "products" differently from every other product you buy.

The supposed division between "physical and software" only exists because of lobbying and our money loving politicians. This division doesn't exist in Europe so I don't see how people can cling to this idea as if it true around the world.

http://en.wikipedia.org/wiki/End-user_license_agreement#Enforceability_of_EULAs_in_the_United_States

Enforceability of EULAs in the United States [edit]

The enforceability of an EULA depends on several factors, one of them being the court in which the case is heard. Some courts that have addressed the validity of the shrinkwrap license agreements have found some EULAs to be invalid, characterizing them as contracts of adhesion, unconscionable, and/or unacceptable pursuant to the U.C.C.—see, for instance, Step-Saver Data Systems, Inc. v. Wyse Technology,[3]Vault Corp. v. Quaid Software Ltd..[4] Other courts have determined that the shrinkwrap license agreement is valid and enforceable: seeProCD, Inc. v. Zeidenberg,[5]Microsoft v. Harmony Computers,[6]Novell v. Network Trade Center,[7] and Ariz. Cartridge Remanufacturers Ass'n v. Lexmark Int'l, Inc.[8] may have some bearing as well. No court has ruled on the validity of EULAs generally; decisions are limited to particular provisions and terms.

#57 Edited by SexualBubblegumX (542 posts) -

@golguin: So pretty much, when people say EULAs matter they're right and when people like me say they're worthless they're also right?

#58 Edited by golguin (4119 posts) -

@sexualbubblegumx said:

@golguin: So pretty much, when people say EULAs matter they're right and when people like me say they're worthless they're also right?

It's on a case by case basis with nothing being set in stone. This is why I see Microsoft's push for this type of system as the thing that's going to kick the "digital ownership" discussion into overdrive. People here fail to realize that the common consumer makes no distinction between a product and a license. Apple is already running into this issue with music on itunes. These are the types of situations that causes laws to change and to be remade.

Our current laws protecting consumer rights came about thanks to people voicing their opinion. I am truly disgusted to see the users of this website shoot down people for voicing their opinion on this matter.

EDIT: A good example of this is the nature of health insurance and how the rules for what THEY ARE REQUIRED BY LAW TO PROVIDE HAS CHANGED OVER TIME to benefit the consumer. It would be like someone coming up to and saying that you should shut up about wanting X insurance because you have a pre existing condition and they don't cover you or will charge you a premium. No one is forcing you to have health insurance so if you don't like their policies don't buy it.

#59 Posted by SexualBubblegumX (542 posts) -

@golguin: The thing in the U.S. that might take a while for things to happen is well, currently we have a bunch of Politicians who don't Understand technology very well or understand new media all that well either. I tun an online Radio station and Since Obama's been in Office it's gotten way more strict, when Dubya was in office all I needed was permission from bands to play something now I need physical media and permission and when working with Local bands half of them don't even have Demo CDs just Demo Mp3s. So It's just a nightmare over here how George W Bush understood Tech better then our current president, plus Congress is no help either. So It's gonna take a really long time for things to sort themselves out.

#60 Posted by KurianOfBorg (2 posts) -

@golguin: Yes. They are legally entitled to make the software license non-transferrable. Only the original purchaser who purchased the software from Microsoft or an authorised reseller can legally use the software. You are however free to sell the disk as physical goods. The person you sell it to is NOT legally allowed to play the software (whether the software actively prevents this with DRM or not).

#61 Posted by golguin (4119 posts) -

@golguin: Yes. They are legally entitled to make the software license non-transferrable. Only the original purchaser who purchased the software from Microsoft or an authorised reseller can legally use the software. You are however free to sell the disk as physical goods. The person you sell it to is NOT legally allowed to play the software (whether the software actively prevents this with DRM or not).

What are you talking about? In Europe you can do whatever you want with a software license and Microsoft will be doing business in Europe.

http://www.techdirt.com/articles/20120703/11345519566/eu-court-says-yes-you-can-resell-your-software-even-if-software-company-says-you-cant.shtml

"Over in Europe, however, it appears that the European Court of Justice (who has been pushing out some relatively insightful rulings on copyright issues lately) seems to recognize just how ridiculous the 9th Circuit's view on first sale and software really is. In a new ruling, it has upheld the right of first sale on software, basically saying that you are buying a license and that license is resellable.

The specific case involved a company, UsedSoft, that was trying to create a market in reselling used software. Oracle sued, claiming that its license agreement specifically stated that it could not be resold. However, the court found that the right of first sale applied. In the court's language, it talks about copyright "exhaustion" which is the idea that once you've sold something you've "exhausted" your right to control it."

#62 Posted by The_Laughing_Man (13629 posts) -

@golguin said:

@kurianofborg said:

@golguin: Yes. They are legally entitled to make the software license non-transferrable. Only the original purchaser who purchased the software from Microsoft or an authorised reseller can legally use the software. You are however free to sell the disk as physical goods. The person you sell it to is NOT legally allowed to play the software (whether the software actively prevents this with DRM or not).

What are you talking about? In Europe you can do whatever you want with a software license and Microsoft will be doing business in Europe.

http://www.techdirt.com/articles/20120703/11345519566/eu-court-says-yes-you-can-resell-your-software-even-if-software-company-says-you-cant.shtml

"Over in Europe, however, it appears that the European Court of Justice (who has been pushing out some relatively insightful rulings on copyright issues lately) seems to recognize just how ridiculous the 9th Circuit's view on first sale and software really is. In a new ruling, it has upheld the right of first sale on software, basically saying that you are buying a license and that license is resellable.

The specific case involved a company, UsedSoft, that was trying to create a market in reselling used software. Oracle sued, claiming that its license agreement specifically stated that it could not be resold. However, the court found that the right of first sale applied. In the court's language, it talks about copyright "exhaustion" which is the idea that once you've sold something you've "exhausted" your right to control it."

I doubt many publishers are gonna say" No you cant trade in your games" Cause hell will rain down on them. I think MS only made that statement because of all the rumors that had built up.

#63 Posted by OGinOR (325 posts) -

@sexualbubblegumx:

That's a 2001 lower-court ruling...I believe he said Supreme Court and perhaps something more recent since all the court decisions since then have upheld EULAs..see Vernor v. Autodesk Inc, et al.. Software licensure is a legally established way around the first sale doctrine and right of distribution whereby the publisher never relinquishes actual ownership of the disc or the media on it. It functions differently than physical copies of traditional media, but the same as digital copies of such (buy a song or movie license from Amazon or Apple and check their EULA...you don't own the song, just the rights to use that file on their services. All of this "first sale" whinging going on is nonsense and MS is doing nothing that software pubs haven't been doing for years - they're just putting measures into place that ensure compliance.

#64 Edited by golguin (4119 posts) -

@oginor said:

@sexualbubblegumx:

That's a 2001 lower-court ruling...I believe he said Supreme Court and perhaps something more recent since all the court decisions since then have upheld EULAs..see Vernor v. Autodesk Inc, et al.. Software licensure is a legally established way around the first sale doctrine and right of distribution whereby the publisher never relinquishes actual ownership of the disc or the media on it. It functions differently than physical copies of traditional media, but the same as digital copies of such (buy a song or movie license from Amazon or Apple and check their EULA...you don't own the song, just the rights to use that file on their services. All of this "first sale" whinging going on is nonsense and MS is doing nothing that software pubs haven't been doing for years - they're just putting measures into place that ensure compliance.

I direct you to my previous post. It's illegal in Europe.

http://www.techdirt.com/articles/20120703/11345519566/eu-court-says-yes-you-can-resell-your-software-even-if-software-company-says-you-cant.shtml

"Over in Europe, however, it appears that the European Court of Justice (who has been pushing out some relatively insightful rulings on copyright issues lately) seems to recognize just how ridiculous the 9th Circuit's view on first sale and software really is. In a new ruling, it has upheld the right of first sale on software, basically saying that you are buying a license and that license is resellable.

The specific case involved a company, UsedSoft, that was trying to create a market in reselling used software. Oracle sued, claiming that its license agreement specifically stated that it could not be resold. However, the court found that the right of first sale applied. In the court's language, it talks about copyright "exhaustion" which is the idea that once you've sold something you've "exhausted" your right to control it."

#65 Posted by SpaceInsomniac (3909 posts) -

@mtcantor said:

I'm a lawyer. First sale doctrine only applies to physical objects. So you have the right to resell that disc, but Microsoft doesn't have to honor that sale. Likewise you don't have the right to resell your XBLA purchases.

Exactly.

Is Microsoft doing something that is illegal? No, and I've never suggested that.

Is Microsoft legally circumventing the original intent of the first-sale doctrine? Yes.

Is that something that I would call anti-consumer? Absolutely.

Will I buy an Xbox One? Not unless Microsoft changes their policies, especially if there are less restrictive options available.

#66 Edited by Brackynews (4111 posts) -

Since this thread hasn't yet mentioned the recent ReDigi ruling in US NY District court, here's a linkdump.

Note I'm not trying to compare commodities (digital music vs. digitial anything else), just the principle of digital resale services, and how nonuniform U.S. law can be over time. Until it reaches the supreme court or a congress bill, it's all subject to what precedent judges prefer. One quote: "Judge Sullivan didn't agree, referring back to a lack of action on the part of Congress to alter the copyright rules in regards to virtual goods."

It's important to keep in mind that corporations are pushing heavily for the harmonisation of intellectual property laws (read: make them similar internationally). And not for the benefit of consumer wallets. They will never stop lobbying to do that, just as Disney has helped extend copyright protection to 120 years so their earliest animations don't fall into the public domain. Can you imagine they're pushing for 150 right now? Of course they are. The moral of the story is, of course, pin it on JohnnyV. :)

This edit will also create new pages on Giant Bomb for:

Beware, you are proposing to add brand new pages to the wiki along with your edits. Make sure this is what you intended. This will likely increase the time it takes for your changes to go live.

Comment and Save

Until you earn 1000 points all your submissions need to be vetted by other Giant Bomb users. This process takes no more than a few hours and we'll send you an email once approved.