Supreme Court Won't Hear Case Saying That You Have No First Sale Rights With Software
from the too-bad dept
We had just mentioned the infamous decision in the Vernor v. Autodesk case last week, in discussing the Psystar decision. If you don't recall, the court in the Vernor case effectively decimated the concept of "first sale" in software, making it questionable if you could ever resell software that you'd bought. To make that work, the court argued that software sales (even though it's "bought" in stores) are really "licenses," similar to rentals, rather than product sales and, thus, you can't resell. Of course, as someone noted in our comments, then why does Apple have a "How to Buy" page for its software, in which it is entirely described as a product you are purchasing.In the Vernor case, the court gave a recipe for effectively destroying first sale. All anyone has to do is claim that they're licensing you something, even if it has every indication of being a full purchase. This seemed to contradict with the entire First Sale doctrine (and numerous other cases), but apparently the Supreme Court doesn't want to be bothered with this. It refused to hear Vernor's appeal, meaning the existing ruling sticks. This is one case where I could definitely see another appeals court coming to a different conclusion, meaning that, hopefully, the Supreme Court will revisit this issue at some point in the future. In the meantime, the first sale doctrine is severely limited to the point of near non-existence in software.
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Filed Under: copyright, first sale, license, software, vernor
Companies: autodesk
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It's action "entirely described as a product you are purchasing the rights to use."
FTFY
Enjoy
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A Win
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Games
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Re:
Oh, and I don't understand what "It is action" means in this context.
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Bah, Mazburglar and his FUD
Wait...Uhm, let me try again after I remove the logic portion of my brain with some heavy blunt trauma.
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Re: Games
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Re: Re:
It means "All your base are belong to us." ;-)
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Re: A Win
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Re: A Win
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Re: Games
Didn't Netflix (or was it Redbox?) win a ruling that the First Sale Doctrine gave them the right to rent out DVDs that they purchased? I'm curious how the digital bits on a DVD movie disc are supposed to be subject to different rules than the digital bits on a DVD software disc...
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From now on I'm only licensing my money.....
The licensing terms for my money will be printed in micro print on a small band wrapped around the bills (hereafter referred to as a EUMPLA, End User Monetary Purchasing Licensing Agreement, which defines that accepting the stack of bills with the wrapper binds the company accepting the cash to my licensing terms for use of said cash...
I'm not greedy, I mean I'll let them hold and look at it for a whole 3 seconds, after which time the additional fee clause will kick in, which assesses a fee of 10% of the amount of cash for each additional second that they hold onto the cash before returning it to me.... I mean it is MY money, I'm only licensing them to look at it while I make off with their goods, sounds fair to me ;)
Of course the terms will include a clause stating that I can change the terms at any time without any prior notice....
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Re: Re: A Win
Uh, no.
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Re: Games
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Re: Bah, Mazburglar and his FUD
You can always tell someone who has exhausted his intellectual ammunition when they resort to this sort of kindergarten-like name-calling.
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Re: From now on I'm only licensing my money.....
Don't bother answering, I already know why :(
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Re: Re: From now on I'm only licensing my money.....
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Re:
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The game companies are rejoicing
Stick it to us some more, Mr. Man..we love bending over.
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Re: Re: Bah, Mazburglar and his FUD
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Well, THANKS, Vernor, for ruining "first-sale" for everyone.
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"So, he sued Autodesk..."
identicon
out_of_the_blue, Sep 13th, 2010 @ 10:02am
Why exactly was that done? I suppose out of pique, but since courts are always a crap-shoot, he should have gone as high up in Ebay as possible to point out that he's already answered DMCA notices in exact same circumstances three times without response, so it's SETTLED, and Ebay should ignore Autodesk in future.
----------------------------
This Vernor -- whose only known interest was in re-selling some copies of Autodesk on Ebay -- rolled the dice UNNECESSARILY and LOST a big one for ALL of us. Who financed this guy, anyway? He couldn't have hoped to recoup losses either way. Everyone else, as I've several times cautioned: DON'T MAKE COURTS EXPLICITLY DECIDE THESE MATTERS.
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That is why I don't "buy" anything from creepy commercial entities.
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Ownership of information
Iirc the court found that the software could be bought *or* it could be licensed, but not both. If it was bought, then the first-sale doctrine and essential steps defence apply and everything is fine, but if it is merely licensed, the licensee is not the "owner" of the software and so these don't apply. This seems to have come from a failure, by whoever was drafting the defences, to spot the difference between software and a CD containing software, and making first-sale /essential steps only apply to "owners", rather than licensees. In this case, there was a licence agreement, and so the software must have been licensed - although it's possible the CDs/DVDs were sold (I can't remember the precise details).
Interestingly, this sort of thing is already how the law works in the UK (and probably much of the EU). Copyright covers the software, which means you can't copy it onto a computer or adapt it (by installing) or share it (unless a specific defence applies). When you buy a CD with software on it, you physically own the CD (so can wipe it and sell it on) but you may need a licence to install the software (unless the CDPA 50C defence applies, which covers "necessary steps" for "lawful use" - basically the "essential steps defence"). You then also need a licence to "issue copies to the public", which includes selling on the original - but like the US, we have an equivalent to the first-sale doctrine, but it is much broader and only refers to "putting into circulation" once, rather than requiring ownership. Renting and lending to the public are still covered by copyright, as in the US, but here those *aren't* covered by the exceptions (which is why Netflix couldn't start up in Europe).
It's interesting to note that this is a great example of how, far from being about protecting property, copyright law tends to fundamentally break large chunks of traditional property law.
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Re:
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im not buying it then
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Re: Re: Bah, Mazburglar and his FUD
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EULA's are a national joke. When
The terms of licensing not only are not negotiated, they are intentionally designed so that for practical purposes they CANNOT be negotiated. Everyone knows its a take it or leave it proposition.
It is an inequitable charade designed by lawyers one side of a transaction to restrict the rights of the party on the other side of the transaction.
Why the courts seem to think this national joke is just fine is hard to understand.
As has been pointed out many times on Techdirt, when a law or legal practice is widely perceived to be ridiculous, unfair, or both, continuing this practice gradually erodes respect for law.
If this unilaterally imposed, non-negotiable, not really agreed to click "contract" is a viable contract, then is there any reason why I can't just send a registered letter to a company (lets take Adobe for example), which states the items in the software contract which I have decided to unilaterally negate. Of course it would be written in fine print and obtuse language designed to obscure the real purpose of the letter. If they do not respond, how am I any more bound by the EULA than they are by the terms of my "contract amendment"
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Oh look, it's the shoe on the other foot. Welcome to hell, you made it.
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Re:
It's only binding in that district, but other districts might point to that if it ever comes up for them.
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That Circuit: a huge one
The biggest game companies in the world, the largest software companies in the world.
Yes, a very large landscape just got leveled.
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Re:
I know you generally don't bother to read beyond the headline before you scroll down to troll, but do try to keep up.
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Re: Re: Re: From now on I'm only licensing my money.....
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Re: That Circuit: a huge one
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Re: Re: Games
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The Case Is About Something Quite Different.
The existence of a contract is practically related to the price of the software, $15,000 or more. It was worth someone's trouble to go through certain legalities to get better terms, and worth someone else's time to make sure all the paperwork was in order. I'm pretty sure that AutoCAD is about the most expensive program which is sold as package software. Most high-end varieties of CAD/CAM software are sold under straight licenses, with negotiated terms and arrangements. There are only a relative handful of organizations which need to use that kind of software, because it is effectively cognate to machine tools, and suchlike. Big companies like General Motors buy CAD/CAM software for the whole company, commissioning what features they need. In short, AutoCAD is a kind of borderline case between package software and semi-custom software. It is mostly used by architects.
http://en.wikipedia.org/wiki/Comparison_of_CAD_editors_for_AEC
http://en.wikipedia.o rg/wiki/BRL-CAD
Incidentally, the real threat to AutoDesk is not pirates. It is the United States Army, specifically the Ballistics Research Laboratory at the Aberdeen Proving Grounds, Herman Goldstine's old outfit, and institutional sponsor of the ENIAC. The United States Army has come to believe in Open Source, and their reserves are virtually limitless.
The underlying facts of Vernor have little or no application to things like popular books, music CD's, movies, or video games, which do not cost a fortune. For such purchases, there never was a bona fide side-contract, because it is not economically feasible to meet the necessary conditions. A store in the mall sells things to unknown members of the public. Can you imagine what would happen if people in the checkout line at Wal-Mart started trying to read ten different sets of terms and conditions each? They would ask the checkout girl questions, and if Wal-Mart allows the girl to answer the questions, she becomes, ipso facto, their recognized bargaining agent, and a judge can take cognizance of whatever she is telling customers, and force Wal-Mart to make good on her promises. Alternatively, they can call the store manager every time someone has a legal question about the contract, and the cash register line backs up for miles...
Any time children are a large portion of the market, that presents a major disconnect. Children cannot, in general, form contracts, and in the limited circumstances where they can contract, there are all kinds of restrictions to prevent them from being taken advantage of. Judges get involved, sooner or later. There are some interesting legal cases which have arisen when doctors have hard decisions to make involving juvenile patients, with no assurance of success either way. So the doctors wanted judges to certify that they were doing the best they could.
Movie theaters let teenagers into R-rated films when accompanies by an adult (what the industry calls an adult guardian) but they do not check the paperwork to establish that the adult really is the teenager's legal guardian, and not, say, a noncustodial divorced parent, and that taking the teenager to that movie is consistent with the terms of the order of custody resulting from said divorce. Obviously, that kind of checking would cost much more than they could hope to make on a movie admission. The theater only goes through the motions.
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Re: The Case Is About Something Quite Different.
Agreed. CTA was the original owners of the software and they could not legally sell their copies having upgraded the software as per the agreement signed with AutoCAD. In effect, these copies were "dead" by definition.
However, Vernor was given some bad advice to sue, most likely because the advising parties were not aware of the contract stipulation.
When I first heard of this case, I was also unaware of the contract between software versions. Once I saw this, the case pretty much became a non-issue.
It's unfortunate people will mistake what this case is really about. Now, I'm sure we'll see an increase in bogus lawsuits of other software companies telling people they're leasing, not buying, product.
Some courts will agree and others will not, making for a horrendous situation for everyone.
Throw in patent software, and well, life in these United States just gets more fun by the day for business owners.
No wonder so many businesses are leaving. It's too expensive to remain here.
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Of course it is a purchase of license and even the dumbest customers do understand that they are each paying a microscopic fraction of the multimillion dollar price of actual product that a software company makes.
But of course customers being what they are... wouldn't it be fun if you could buy a plane ticket then get ownership on the entire plane via clever lawsuit? That'd be fucking awesome, you'd have a personal jet!
Customers want to be paying for the no-resale-rights license, which is cheaper than a license with resale rights would have been - and they want to screw over the licensor and resell it afterwards. And whine in court, then whine when the court makes the most obvious ruling and higher court ignores the stupid whining.
There's where it gets really stupid though - you guys think you'll be actually getting more value if you have a right to resell the software set by court. The software won't be cheaper to make and the development costs will still have to be recovered.
No you won't. You won't be able to obtain software cheaper by waiving the ability to resell, that's all!
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Re:
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Don't Sell the Product if You Can't Make Money
The assertion that companies are entitled to deprive buyer of their rights to a product in order to cover R&D costs is absurd. When someone buys a product they acquire a property right to that product, which includes the ability to re-sell it. (I also do not subscribe to the notion that legal gimmicks, such as licensing, EULA, or TOS can deprive the buyer of their rights.)
Fundamentally, if we live in a free-market system, companies should not be able to employ the power of the State to recover their R&D costs. Can't make money. Your marketing research was defective. Too bad, you loose.
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Re: Re:
I look at it this way and again this is NOT perfect but:
You buy a single song online - you have no right to resell it.
You buy a CD Album in the store - you have the right to resell.
The original poster is correct in saying you are NOT buying a product when you buy say Microsoft office. You are buying a cd that facilitates access via a code to use the software. Sure can you pass the cd to a friend, and get 2 for 1 - well you used to. But this is stealing, plain and simple and most of us are OK with thi type of theft, but it does not make it right. But you cannot resell your office CD to someone.
Software is not a physical product, like a song file, it is simply access to something. In the example, you access music. But ony the artist et al has the right to sell the music.
The same is true for the NFL broacasts. You can watch it, invite friends over and watch it but the right to sell "the product" is for the NFL only. You cannot charge entry into your home under the pretense of watching the super bowl. You do not have the rights.
Peronsonally I think items like software and music files are infinite goods and thus should not carry much value. However software is challenging. How do you make anything off software if your business model is sell it once, and then let the world use it for free. Every software shop in the world would close if that were the case because it would be economically impossible to sustain a business.
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Response to: Dmytry on Oct 5th, 2011 @ 4:29am
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Re:
As always, vote with your wallet, it's the *only* language these folks understand.
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Re: Re: Re:
However, I disagree with: "How do you make anything off software if your business model is sell it once, and then let the world use it for free." The answer is you need to adapt, not use the power of the State to create a special right for the content producer that deprives the consumer of their rights. The creator of a product is NOT entitled to a profit, he/she needs to come-up with an approach that will allow them to make money. Oh, by the way, there is nothing wrong with creating products were you don't expect to make money.
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Re: Re: Re:
Selling physical property, like a CD, is actually a right the property owner has. Why anyone would think statutory rights, like copyrights over what's written on the CD, should take precedence over natural rights, like actual property rights, is beyond me.
"How do you make anything off software if your business model is sell it once, and then let the world use it for free."
That's not what is at issue here, you seem smart enough to realize that, and you're being intellectually dishonest. It's not an all or nothing proposition, you can maintain copyrights over the software without creating a legal fiction where software is licensed not sold. Books, for example, certainly don't have any trouble selling more than one copy without restricting first sale. This is a false dichotomy, the choice isn't 'shrink wrap license or no more software' like you are hyperbolically making it out to be. There's a third option: software and first sale rights can co-exist.
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This is why
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Re: Re: Games
But mostly it's because they (EA and so on) still thinks that the "brick and mortar" stores are the most important ones, and don't want to screw with them to much.
(Obviously I'm just guessing)
2. I believe it was Redbox.
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Re: Re: Games
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Re: EULA's are a national joke. When
So leave it, then.
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Product Control
The big issue, in terms of our legal process - Why should the seller (out of thin air) be able to claim that they have a right to trespass onto your equipment? Just because a new technology becomes available it should not entitle the seller to claim some new right that deprives the consumer of their rights.
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Deceptive Trade Practice?
Isn't the US FTC interested in such things?
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Re: Re: EULA's are a national joke. When
But recall that the lawsuit in question here involved Autodesk. Autodesk software is essential to many engineering companies. Autodesk has worked hard to buy up competitors so the competitive market in CAD has shrunk drastically. You might try another product, but it's owned by Autodesk as well, and you'll just find the same EULA on that product. It's tough to negotiate with monopoly.
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Re: Re: From now on I'm only licensing my money.....
Maybe because senators and representatives love being rimmed so much, they'll do anything for those willing to do it. Since people in general have too much self respect...
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