CoinOperatedBoy
Golden Member
- Dec 11, 2008
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All of these are excellent reasons to be in favor of digital distribution, I agree.
Sorry, I don't buy this. I'm in the "legal interpretation" camp. The medium shouldn't matter for how software is distributed. Extra materials like CDs, DVDs, jewel cases, manuals, etc. cost the company money to produce and distribute. We pay for it when we buy retail copies. The software itself contained on the disc doesn't degrade, and is identical in every way to what you could get through a digital download.
It's not like the first 200,000 buyers of a game are all going to play it, finish it to their satisfaction in two weeks, and flood the online market because they all want to sell their license. The opportunity to do this with physical copies exists today and it doesn't happen. What makes you believe this anyway? Do you have any examples of this happening?
The only impediments that would be removed by digital distribution are the wait/shipping times you described above, and the concept of depreciation due to wear. Digital transfer would make it easier and resale might increase, but I don't believe it would cause the scenario you describe.
Besides, the money the publishers "lose" to digital resale vs. retail could quite possibly be made up in the savings from not having to have any form of physical manufacturing or packaging.
Maybe we missed each other here. I'm not against resale of software. That act is protected by law. My point is exactly what you just stated, that you don't own the code. You do own the medium that is was provided on, and that is why they made the exception in copyright law the first place. The right to resale only applies to the medium, not the license. The law requires that the license be transferred because the license is tied the software on the disc, and thus if a developer were to forbid that license to transfer, there would be a literal contridiction of personal ownership law and copyright law, and that would be a big problem in many ways. So congress added the resale right to prevent problems. This is also precisely why resale of software in digital mediums such as Steam is not protected by law like it is when on a physical medium. Since you don't have physical media, you have nothing tangable to sell. At this point all you have is a license to use the software, and thus nothing to legally sell. Now, Fair Use was instituted due to the unrealiability of media in the 80s and early 90s. Diskettes would fail randomly and back then the only way to get replacements was to write the developers and pay a replacement fee. The government thought this was wrong so they added Fair Use to protect the consumer. These days Fair Use in regards to software is silly because current manufactoring methods provide almost 100% reliability and in the rare event you get a bad disk, the point of sale will replace it.
Your lawnmower analogy is wrong because a lawnmower is a physical entity and can only be reproduced in physical ways. Unless you literally build another, you only have the one. However, software doesn't exist in this way. A dvd is just a combination of metal and plastic, and if you reproduce it you just get more metal and plastic. Patent law protects that. These are tangable objects. Software is not tangable. It is only worth anything to a device that can read it. It doesn't exist in any real terms. It must be translated by machine and converted into something usable by humans. If you got rid of computers, those DVDs that sit on your desk are still dvds, and you'd still be able to sell them, though at that point they might be more useful as a table leveler.
I apologize if I sounded harsh, but when it comes to copyright law there isn't any "reasonable application" of it. It either is enforced or it isn't. Either software developers own their software or they don't. Laws don't allow any individual interpretation. That is why we have the supreme court. Developers have the absolute right to do whatever they want with their software,and you have the right not to buy it. You can make the case that current EULA use is oppressive, and in many ways I agree with you, but those are opinions about how it "should" be but not how it is. I'm not a software publisher, but I absolutely believe in copyright law and that it should be respected.
As far as the topic of discussion, it is important to understand the distinction between media and software. They are two different things, but supplied together as a package, and each part fits under a different legal precedant.
Anyways, this is the last i'm going to speak of the matter, at least on this thread. I apologize for attacking you. I just get frustrated when people inject opinion into a straightforward issue. I do respect whether you think the laws are just or unjust, especially when it comes to this topic, but I think its more important for people to know why the laws are written as they are and how they are applied. I'm only reporting on what is, not what I wish it would be. This is such a big issue because its a hard to justify spending money on things and then find out you really have nothing to show for it, and so people think they should have more rights. All I can say is we all need to decide for ourselves what is important, and if at the end of the day you are getting frustrated about DRM and EULAs then maybe you should evaluate whether you should pick a different hobby, because as internet connectivity becomes more integrated in society, DRM and EULAs are going to become even more prevalent as they are now.
CoinOperatedBoy
Golden Member
- Dec 11, 2008
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That makes no sense. The end user experience is the same in terms of using the software, regardless of the medium in which it's delivered. Finally it resides on my physical hard disk. Why should I be unable to legally resell my license if the product was provided digitally? Physical tangibility is completely irrelevant. I should be able to destroy all copies of the software I have and relinquish the license just as I could with a disc. Steam offers no such option.
Sorry, but you really have no clue what you're talking about. I don't know why you even brought up fair use, but that doctrine existed as common law for decades before it was written into actual copyright law in the 1970s (not the 80s or 90s because of the unreliability of floppies -- lol). Early concepts of fair use were applied to print publishing and abridgements IN THE 1700s.
I purposely chose my analogy because of how ridiculous it sounds applied to a physical object. Nobody buys a DVD because they just like staring at the shiny disc. The real product is the movie or other audio/video experience stored on the disc. Either way, where did you come up with your ideas about tangibility? Copyright protection applies to "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." Here's how copyright law defines a fixed tangible medium:
The Second Circuit Court stated in Matthew Bender & Co. v. West Publishing Co. that "reproductions of copyrighted works contained on media such as floppy disks, hard drives, and magnetic tapes would meet the Copyright Act's 'fixation' requirement." So you can't have it both ways. If someone can be prosecuted for copyright infringement for making copies of a work stored digitally, then the work is considered fixed in a tangible medium. First sale doctrine should apply, the "licensing" language utilized in EULAs is used only to subvert that and should be unenforceable.
I would be very interested to read the legal precedents you refer to.
Frankly, you strike me as a corporate shill interested in keeping consumers complacent. Yeah, maybe we should just shut up and choose a different hobby if we don't like having our rights infringed.
Copyright Law of the United States : Title 17 : Chapter 2
§ 202. Ownership of copyright as distinct from ownership of material object
Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.
Since the software originated on a server (Digital Distribution), the license stays there. I'll throw you a bone here, and assume that when you download it the license transfers to your hard drive as you pointed out. At that point you'd have to sell your hard drive with the software on it for it to count as a legal transfer, but since the license is actually tied to your account and not the harddrive, that would be illegal, unless the copyright owner allows it.
Copyright Law of the United States : Section 117
§ 117. Limitations on exclusive rights: Computer programs53
§ 117. Limitations on exclusive rights: Computer programs53
(a) Making of Additional Copy or Adaptation by Owner of Copy. ? Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(d) Definitions. ? For purposes of this section ?
(1) the ?maintenance? of a machine is the servicing of the machine in order to make it work in accordance with its original specifications and any changes to those specifications authorized for that machine; and
(2) the ?repair? of a machine is the restoring of the machine to the state of working in accordance with its original specifications and any changes to those specifications authorized for that machine.
This was added in 1980 because software distribution methods were unreliable (tapes, floppys, punch cards, etc). It was also amended in 1997. Your right about Fair Use being around for a long time, but it has since been updated for software.
So basically three points :
1. The "material object in which the work is embodied" (media) is independent of the license and thus are treated as such.
2. Legally you do not have the right to unilaterally resale digital distribution licenses unless they give permission.
3. Fair Use has a specific section for software and thus isn't arbitrary. I didn't have time to include the specific First Sale doctrine text, but we already know its legel to resale so I didn't think it necessary.
I'm not a corporate shill, but I am a capitalist. I believe in the right of ownership, and that extends to everyone, including the evil corporations. I agree with you that corporations are only after money, but then again thats like saying carnivores are always after meat. Corporations exist to make profit, and its not offensive to say so. Its not like its a dirty little secret, but to act like they are forcing you to buy their product is just silly.
I only focused on the specific quotes above, but you can look up the Copyright laws to get the missing pieces if your interested.
Software isn't tangible because it isn't capable of being touched and it isn't material or substantial (dictionary). You can touch the dvd, but you can't actually touch the software since it doesn't exist in the physical world. A dvd is just full of pits. A laser reads the pits and translates it into what we know of as software. Unless you can prove ot me that someone can pass their finger over a dvd and tell me what files are on it, it can't be a fixed tangible medium.
§ 202. Ownership of copyright as distinct from ownership of material object
Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.
Since the software originated on a server (Digital Distribution), the license stays there. I'll throw you a bone here, and assume that when you download it the license transfers to your hard drive as you pointed out. At that point you'd have to sell your hard drive with the software on it for it to count as a legal transfer, but since the license is actually tied to your account and not the harddrive, that would be illegal, unless the copyright owner allows it.
Copyright Law of the United States : Section 117
§ 117. Limitations on exclusive rights: Computer programs53
§ 117. Limitations on exclusive rights: Computer programs53
(a) Making of Additional Copy or Adaptation by Owner of Copy. ? Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(d) Definitions. ? For purposes of this section ?
(1) the ?maintenance? of a machine is the servicing of the machine in order to make it work in accordance with its original specifications and any changes to those specifications authorized for that machine; and
(2) the ?repair? of a machine is the restoring of the machine to the state of working in accordance with its original specifications and any changes to those specifications authorized for that machine.
This was added in 1980 because software distribution methods were unreliable (tapes, floppys, punch cards, etc). It was also amended in 1997. Your right about Fair Use being around for a long time, but it has since been updated for software.
So basically three points :
1. The "material object in which the work is embodied" (media) is independent of the license and thus are treated as such.
2. Legally you do not have the right to unilaterally resale digital distribution licenses unless they give permission.
3. Fair Use has a specific section for software and thus isn't arbitrary. I didn't have time to include the specific First Sale doctrine text, but we already know its legel to resale so I didn't think it necessary.
I'm not a corporate shill, but I am a capitalist. I believe in the right of ownership, and that extends to everyone, including the evil corporations. I agree with you that corporations are only after money, but then again thats like saying carnivores are always after meat. Corporations exist to make profit, and its not offensive to say so. Its not like its a dirty little secret, but to act like they are forcing you to buy their product is just silly.
I only focused on the specific quotes above, but you can look up the Copyright laws to get the missing pieces if your interested.
Software isn't tangible because it isn't capable of being touched and it isn't material or substantial (dictionary). You can touch the dvd, but you can't actually touch the software since it doesn't exist in the physical world. A dvd is just full of pits. A laser reads the pits and translates it into what we know of as software. Unless you can prove ot me that someone can pass their finger over a dvd and tell me what files are on it, it can't be a fixed tangible medium.
Honestly, it's not like The Orange Box would be worth a lot even if you could resell it. It's been pretty routinely on sale at or under $20 for over a year now, and I think everyone who wants it probably has it.
CoinOperatedBoy
Golden Member
- Dec 11, 2008
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You've misread section 202 or you are misappropriating its meaning. What it's saying is that, for example, you may own a book, but that doesn't mean you own the copyright on the work contained in the book. Similarly with a computer program, you might own a copy of the software (on CD, hard drive, or otherwise), but you do not hold the copyright. It has nothing at all to do with resale, and everything to do with claiming copyright.
You might not believe it, but I'm also a capitalist and I'm fully in favor of companies making money, but not at the expense of consumer rights, which is what happens when software publishers start abusing copyright law to prohibit otherwise completely legal resale practices. I maintain that there is no logical reason why a digital copy cannot be resold.
You might not believe it, but I'm also a capitalist and I'm fully in favor of companies making money, but not at the expense of consumer rights, which is what happens when software publishers start abusing copyright law to prohibit otherwise completely legal resale practices. I maintain that there is no logical reason why a digital copy cannot be resold.
I know exactly what it means. It means that just because you own a dvd with software on it doesn't mean you own the software. I specifically mentioned it because it defines the whole premise of what we are talking about. That the delivery medium considered independent of the copyright (software) itself. It has nothing to do with claiming copyright so much as it defines which portion your licensing. I also explained exactly why you can't resale a digital copy, so if that answer isn't good enough for you I'm not sure what else to say. When you buy software in a box, you get media (dvd in this case) that has software written upon it, along with the license. The dvd is tangible, the software is not. You can sell the dvd, but you can't sell the license. By law, the license is transferred automatically when you sell the dvd. When you buy online, you have no dvd. You have nothing tangible, therefore you have nothing to sell ergo you have no manner in which to transfer the license. Your argument earlier was that if you install it to your harddrive then you should be able to sell it, but thats not possible because the software wasn't provided to you on a hard drive, it was provided to you via the internet, where your license is tied to an account that you agreed to use in order to access the software. They aren't abusing copyright law. Its simply not legal to resale licenses without permission. No one can resale licenses without permission. You resale the media, and the license goes with it. Don't confuse the two.
It's not a conspiracy. Your stuck in this mindset that when you sell your games your selling the licenses, but your not. Only the discs. The license is transferred automatically because its required by law. The license is only sold the first time. The rest of the time it just bounces around with the media. If anything, developers are tied down by copyright law because they can't stop you from selling your discs. They aren't abusing you, they are simply defending their rights. I think its the idea that people are purchasing software that trips them up. Its a misnomer because you don't buy software, you buy the box and media along with permission to use whatever that comes on it. You can't resell permission. If you give me permission to use your car, I can't then resell that permission to a buddy of mine. At least the law protects you so that you can sell your media. The license transfers whether the copyright holder wants it to or not. Thats bad for them, because they are cut out of the loop. Online digital distribution gives them the ability to get back into that loop, since your not buying anything but permission...not even a box to put it in.
If you disagree with copyright laws, I can understand where you are coming from, but i'm just explaining how it works. I'm not saying I agree with it on a moral level.
Anyways, I respect your views, but the facts are the facts. Its not the EULA that prevents license resale, its the copyright laws. It gives the owners the right to dictate terms. I'm kinda burnt on this topic so this is my last post here, so write what you want in response. A time may come in the future where the law is modified to include digital distributions as eligible for First Sale doctrine, but for now there is no legal grounds for it.
paperfist
Diamond Member
But once you get your borrowed car back you can sell it because you own it, it's titled in your name. You cannot sell your copy of a video game you bought from Valve though (in this case) which makes no sense. Now if I bought a copy of Civ from Firaxis I could sell it to anyone I wanted. In this instance Valve is screwing their customers.
And if I'm just 'leasing' a copy of game code then if said game code sucks I should be able to get my money back since I don't technically 'own' it. Obviously this isn't the case.
See the last couple posts I made and that should answer what I mean. As far as getting your money back, all that they are liable for is that the media is fully usable. If you get a bad disc, you can in fact get your money back. With the software itself, all that is required is that the software runs and at a minimum does what they claim it to do. It doesn't have to do it well, just like you can buy a crappy car that barely runs. If they don't meet this standard, you can in fact sue the developer for your money back. Of course its expensive and not worth it for a $50 game, but you have the legal right regardless.
Your entire reasoning seems to be 'that's how it was in the past, so that's how it should always be' or 'that's how it is with scenario A, therefore it should also be like that for scenario B'. There is no ultimate truth to how the laws should be. Laws and rights are simply tools to make human's lives better. They must change as society changes. When deciding on a law, one must only consider the pros and cons of that law in that time and in that situation. What the laws were in the past, or what the laws are for similar situation are completely irrelevent.
The copywrite laws for digital copies of games should be made for what's best for digital copies of games. They don't have to be the same as boxed copies. In fact, there is really nothing wrong with disallowing the sale of boxed games either. You own only the plastic disk it came on, which is useless without a license.
In all your posts you haven't even given one pro or con of forcing game publishers to allow the sale of used games. You just 'feel' like you should be able to sell it. It's less money for the consumer who wants to sell their game, but if money is the only issue, then it's effectively the same as them raising the price of the game, which of course within their rights to do.
CoinOperatedBoy
Golden Member
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I think you might be the one confusing issues. There are two at hand: 1) Does a software purchase constitute a sale or a transfer of license? 2) Is digital distribution inherently different from transfer via a tangible medium?
Sorry, but I still think you've demonstrated that you don't fully understand section 202 if you're using it to deny resale for digital copies. It's true that this section states that medium is independent of copyrighted work, but that agrees with my reading. I've never disputed that the software itself is the actual work under copyright and not the medium; in fact, since that is obviously the case, digital transfer of that work should be treated no differently than anything else under law since medium is irrelevant.
A corollary of this section is that copyright and rights under copyright can be transferred without exchanging a physical object. Therefore, installing software to a hard drive doesn't mean it needs to be resold on a hard drive -- that's some weird scenario you cooked up yourself, not me. I mentioned it only to show how software can ultimately be fixed in a tangible medium without having been distributed on a physical disc, but it shouldn't matter anyway. Therefore, I can only conclude that first sale doctrine should fully apply to digital copies as long as the original transaction can be considered a sale instead of a license transfer.
Based on all that, I would think section 109(d) would be more useful for you than 202, since it says that first sale doctrine "[does] 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."
So you are right in saying that a licensed copy cannot be resold without authorization from the copyright owner, but it's currently not clear whether most software is eligible, even if labeled as such. Please refer to Vernor v. Autodesk, Inc., in which Autodesk tried to argue that the defendant only had a license to use their software and so it could not be resold under the agreement terms. The court cited United States v. Wise in its finding and here are several pertinent quotes from the sections contemplating license vs. sale:
The core of the argument is that Autodesk calls the transaction a license transfer, even though there is a single, non-recurring payment and an indefinite period of use. The court calls that a sale and the "license" agreement only imposes restrictions on use instead of defining an actual license. The finding was in favor of Vernor and calls into question all of these "shrinkwrap licenses" that try to weasel out of calling a software purchase a sale in order to avoid first sale doctrine, which is what I've been talking about all along.
I will say that there are other decisions that contradict this one (called "the MAI trio" in this particular case), but Vernor v. Autodesk follows United States v. Wise as the earlier opinion instead of the MAI decisions and acknowledges the conflict. So this is admittedly still a confusing and contradictory issue, quite the opposite of your black and white, "this is the law and there is only one true reading and application of it" depiction.
tl;dr: Personally, I think it's clear that purchasing most software (including The Orange Box) is a sale and not a license transfer, despite the wording in EULAs. I base my opinion on the above court findings and the fact that the transaction constitutes a single monetary exchange, the "license" is indefinite, and thus the product is never intended to be returned to the copyright owner. I also think I've established that the transfer medium shouldn't matter, so this should also apply to digitally distributed games (e.g., through Steam).
Even if there are arguments to be made against digital resale, the OP here purchased a retail boxed copy of The Orange Box and should be legally allowed to resell it, but he is prevented by the way Steam ties the software to his account. I don't think that's right, and I don't think the law supports it.
CoinOperatedBoy
Golden Member
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You must have ignored about 90% of what I've said. I urge you to look up the meaning of "precedent" and consider how it applies to this conversation. I think you're the one guilty of basing your opinion only on feeling because I haven't seen you provide any evidence of copyright law or court findings that disagree with me, only baseless, apocalyptic scenarios about an unrestricted used market blowing up. I at least respect MStele for disagreeing for good reason and with some evidence.
The PRO of forcing publishers to "allow" resale (which isn't in their rights to deny if you agree that they typically sell software, not license it) is that consumers retain their rights as defined by present-day copyright law. There is no CON for consumers, only for publishers who could no longer (mis)use the law to deny first sale so that all copies are purchased new, maximizing revenue and controlling the market.
Are we arguing about how the law is, or how it should be? The fact is copyright law is a mess when it comes to digital information because it wasn't written with that in mind. What is and isn't legal is a topic still under hot debate even by professional copyright lawyers. Yes precedent could be used in a court of law to establish a relationship between retail boxes and digital downloads, but it isn't the be all/end all of of such a court case.
Apocalyptic? I repeat, the transfer of digital used games is easier, faster, safer, cheaper, and they don't deteriorate. Those 5 factors combined makes the used game market much more attractive. You will be able to go to www.usedsteamgames.com (which will be a well known legit business) and get any Steam game you want for half the price of retail, and when you're done, sell it for the same price you bought it for. The website will act as a liaison between the buyer and seller, effectively eliminating the risk of getting scammed. It may not be the apocalypse, but it will result in a large revenue loss for game developers/publishers. I can't provide evidence because it's never been legal, but imo it's obvious.
1. I don't agree
2. You're basically just saying it's the law. True or not, that's not a pro. Rights are really just laws. What if the laws were changed? Would you still have a point?
3. Consumers and developers are two sides of the same coin. They need each other. You have a very anti-corporate attitude, as if the financial well being of corporations doesn't matter and only the consumer's rights matter. Corporations exist only to serve the consumer, but if you cut in half the amount of money going from consumers to game developers, you're gonna have a lot less good games coming out.
4. Publishers compete with each other. No one publisher controls the market
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