We're fucked -- First sale doctrine doesn't apply to licensed software

[Trippy]

Ruling:

http://www.ca9.uscourts.gov/datastore/opinions/2010/09/10/09-35969.pdf

[5] We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions.

Analysis:

http://www.wired.com/threatlevel/2010/09/first-sale-doctrine/

This is not a Supreme Court ruling so it still could be reversed/struck down/sent back down but for now in the 9th Circuit states (Western US) this is now the law.

[Rendakor]

nb4 Politics derail

[Samwise]

Eh, this has been the case for all practical purposes for a long time now.

[Trippy]

It wasn't because of the lower court ruling this ruling overturned.

[Soln]

I wonder if digital print people are watching this.  Or music, movies, what else?

“The other ramification, there is no reason a similar license could not be put into the cover of a book. It wouldn’t be difficult for everybody to implement this.”

I don't like this, given the last 24hrs of confusion and froth I have had with Turbine's FTP model in LotRO.

Edit: but yeah, used video games.  Used books, DVDs, prints....

[Merusk]

Fuuuuck you, Autodesk. Yet another reason I continue to advocate moving away from AutoCAD.  Too bad Revit is already nearly established as the next stranglehold.

Welcome to the brave new world of rentalship.

[Engels]

This isn't only Autodesk. I manage several expensive licenses at my school, and they all have very similar methodologies in licensing, from Matlab, to SPSS, SAP, you name it, the purchase is in the encrypted license file resting on a network server somewhere. The license giveth, the license taketh away. Has been this way for years.

[Vision]

[Autodesk] stated that the software could not be transferred or leased without Autodesk’s written consent, and the software could not be transferred outside the Western Hemisphere.

The Western Hemisphere? Why not?

[Merusk]

This isn't only Autodesk. I manage several expensive licenses at my school, and they all have very similar methodologies in licensing, from Matlab, to SPSS, SAP, you name it, the purchase is in the encrypted license file resting on a network server somewhere. The license giveth, the license taketh away. Has been this way for years.

Yes, but they were the ones pursuing the case. Pissily so because people would rather buy a 13 year old version of their software (that can't be deactivated remotely) than spend the $4k for a newer, buggier version.

This case started out as them trying to stop a guy who bought-up a bunch of R14 diskettes and was selling it on E-bay. Not copies, original software that had no such "you're only leasing" EULA.

[Engels]

Ya, ok, that's total BS. R14, really? Diskettes? We have plenty of students selling their old versions of Matlab all the time, openly. That's a bit beyond the pale, if you ask me.

[Chimpy]

Ya, ok, that's total BS. R14, really? Diskettes? We have plenty of students selling their old versions of Matlab all the time, openly. That's a bit beyond the pale, if you ask me.

EVERYTHING AutoDesk does is fucking evil. If they did not have such a lock on the CAD market no one would use their products. And because there is no such thing as a "dangerous monopoly" in application software, the fact that they are allowed to buy up EVERY competitor to their products without anyone blinking an eye and making it no longer just painful but impossible to get away from their products if you are in an industry that requires 3d modeling/drafting software.

[tgr]

I thought microsoft tried to do the same when this one guy bought office as a student pack, then sold each product separately on ebay, and the courts ruled that the first sale doctrine did, indeed, apply. So the software companies have finally managed to "fix" this oversight?

[Engels]

what is the first sale doctrine?

[apocrypha]

So... let me think this through. If we're actually only leasing software, not purchasing a physical product, does that mean that pirating software isn't theft since you're not physically removing a physical product?

Surely they can't have it both ways. 

[tgr]

The first-sale doctrine is a limitation on copyright that was recognized by the Supreme Court of the United States in 1908 (see Bobbs-Merrill Co. v. Straus) and subsequently codified in the Copyright Act of 1976, 17 U.S.C. § 109. The doctrine allows the purchaser to transfer (i.e.,  sell or give away) a particular lawfully made copy of the copyrighted work without permission once it has been obtained. This means that the copyright holder's rights to control the change of ownership of a particular copy ends once that copy is sold, as long as no additional copies are made. This doctrine is also referred to as the "right of first sale," "first sale rule," or "exhaustion rule." Note that this does not apply to licenses of copyrighted work.

Hrm. I've bolded what I don't remember seeing earlier, I see that was added to the article today, probably as a direct result of this lawsuit.

[Trippy]

Hrm. I've bolded what I don't remember seeing earlier, I see that was added to the article today, probably as a direct result of this lawsuit.

They shouldn't have added that given the way its written. It's wrong in at least two ways. One if you read the part I quoted in my top post there are 3 conditions that need to be met to turn a software user from an owner to a licensee. Just having a software license is insufficient by itself to turn a software user into a licensee. Second as I also mentioned in the top post this ruling only applies to the 9th Circuit. Other Circuits could rule differently on similar cases, and then the SC would have to step in to resolve the conflict(s).

[Vision]

So if it doesn't apply to copyrighted work, is there any real point in the 3 prior lines of legislation?

[tgr]

licenses of copyrighted work. Not merely copyrighted work.

[Fabricated]

Looking forward to the 5-4 ruling upholding this.

[HaemishM]

Ownership is so 20th century. 

[Malakili]

This is actually fairly significant.

[tgr]

I, for one, look forward to when reselling physical books is illegal because it has an EULA saying I'm only licensed to read the book once, and never resell it.

And the lawsuits. Oh god, the lawsuits.

[MahrinSkel]

You think you're kidding, but it's been tried (with college textbooks and medical references), and will doubtless surface again with this precedent having been so general.

--Dave

[Malakili]

I, for one, look forward to when reselling physical books is illegal because it has an EULA saying I'm only licensed to read the book once, and never resell it.

And the lawsuits. Oh god, the lawsuits.

I actually think we need those lawsuits, otherwise this will go quietly under the radar.  We need some 75 year old grandma to get sued for selling her copy of the latest James Patterson thriller or something. (if it comes to that). 

[tgr]

I'm "kidding", as I'm mocking it, but with the way things are going I'm also not going to be surprised in the least when they actually DO implement this. And I'm not looking forward to it.

I mean, we've already seen people being called whiners for complaining about how f.ex Ubisoft's DRM could (at ubisoft's whim) stop working entirely. It seems like the perception of ownership and consumer rights are changing, and not just from the providers' side.

[Merusk]

Probably because nobody owns things for a long time anymore.   I've gotten odd looks for using bedroom furniture I inherited from the rental house my grandmother sold off, rather than buying a whole new set.  My sister and her friends change entire living room sets every 5 years and throw out anything they haven't used in 6 months.  Never mind that $200 mixer will be useful in a year or so when the kids go to school, just buy a new one! It'll have more features and match the new kitchen better, anyway.   As soon as you take that attitude, then you never really "own" anything. You're just leasing it until the next upgrade or it's worn out it's current use.  Toss it aside or away and get something new.

Ownership just ties you down, man. What are you, too poor to lease things eternally?

Disposable consumerism. You're living in it.

[tgr]

Just like I'm getting weird looks for completely refurbishing a 15 year old car instead of just buying a new one with less horsepower.

I'm too young to be thinking "damn kids", damnit.

[Fordel]

Eventually the car will be old enough that it will be considered a classic and the only looks you'll get are envy!