First Sale Doctrine gutted by 9th Circuit

[bfdd]

I think it's only against the rules if you start a thread calling someone out... (Not saying that's right or wrong but I think that's the rule.)

Ah, that makes more sense then.

 

[Double Trouble]

Funny 9th circuit story:

For instance, the Ninth Circuit issued a stay to stop an execution in California. An appeal to SCOTUS resulted in the stay being lifted, so that the execution could proceed. At which point the Ninth issued another stay. SCOTUS in turn lifted that one.

And then the Ninth issued yet another stay, after which SCOTUS lifted that one, and also issued an order saying there would be no further stays. The executionm was then carried out. All of this happened in one evening.

I don't know if that's true or not, since I've never seen it printed by a credible source, but funny.

edit: Apparently true, and it was actually 4 stays that were each overturned until the scotus got sick of it and said "no more stays unless ordered by the scotus itself". http://articles.latimes.com/1992-05-03/local/me-1882_1_harry-pregerson

 

[Perknose]

I actually thought I did post in here apologizing that I misunderstood what he said, but I guess I didn't. I missed the whole thing about "non-transferable licenses." I have no problem admitting I'm wrong, your call out though is against the rules isn't it?

You are curiously and self-servingly muddled about what a moderator sanctionable call out is, poster please!

And I fail to see where anything you have posted prior could have been construed by you as an apology, or, failing that, how you could have somehow thought you had posted said apology when you didn't at all, in any way, shape or form, even if it is Friday night, but otherwise: :thumbsup:

 

[bfdd]

You are curiously and self-servingly muddled about what a moderator sanctionable call out is, poster please!

And I fail to see where anything you have posted prior could have been construed by you as an apology, or, failing that, how you could have somehow thought you had posted said apology when you didn't at all, in any way, shape or form, even if it is Friday night, but otherwise: :thumbsup:

I obviously failed to click submit. I type messages all the time and I forget to post them because I miss click "Submit Reply" then click "Politics and News" or some other forum to go check something else out. Like I said I thought I did it and I didn't so I apologized.

edit- about the forum rules, honestly i've never read them and i probably never will. i just don't give a fuck and will learn them around the way. if i get banned before that oh fuckin well

 

[woolfe9999]

It's cool. I believe bfdd. Not many people here will admit an error even belatedly so props to him for that. We're all good.

- wolf

 

[Perknose]

Uh, how exactly would you suggest that bfdd ever "factually prove" that what he said ("I don't think you know as much about the first sale doctrine as you think you do.") is true?

You attempt to prove any broad based charge you make by providing the no-doubt copious factual background in your fucking possession that led you to make the charge in the first damn place.

Bottom line: You make a charge, you back it up or stfu.

How do you factually prove what someone else thinks that they know?

You can't prove or disprove what someone else thinks that they know, Sparky, but the burden is on you to prove what YOU think they don't know!

Got it?

Please let me know whether you do or not.

 

[Double Trouble]

You attempt to prove any broad based charge you make by providing the no-doubt copious factual background in your fucking possession that led you to make the charge in the first damn place.

Bottom line: You make a charge, you back it up or stfu.



I don't, idiot, the factual burden is on THEM to support that charge.

Watch my lips and follow along:

"You" can't factually support what someone else thinks they know, but "you" can AND SHOULD factually support what YOU think they don't know!

Got it?

Please let me know whether you do or not.

Your insults are unnecessary and don't paint you in a very good light. Regardless of your bluster, the fact is that you CAN NOT conclusively and factually prove whether someone "knows less than they think or do or not". At best, you can build some sort of circumstantial case based on what the person has posted/said, but you can not conclusively and factually prove it.

Not sure what your beef is, must have gotten up on the wrong side of the forum bed today

 

[Perknose]

...the fact is that you CAN NOT conclusively and factually prove whether someone "knows less than they think or do or not".

IF you make the bald-faced charge that someone else knows less than they think they do, as bfdd did, you had BETTER be able to back you charge up with whatever was in your head to so confidently make that statement in the first place.

Got that?

 

[Perknose]

It's cool. I believe bfdd. Not many people here will admit an error even belatedly so props to him for that. We're all good.

- wolf

Indeed. If it wasn't more apparent in the midst of my grumpiness at the intellectual looseness of his initial post , I give him major, major props for that.

bfdd, this P&N adult beverage is for you. :thumbsup:

 

[woolfe9999]

There are differences, but it's tedious to get into them.

To pick one simple point, for now, most of the value of a movie is in seeing it once - you are buying that experience. Why not let you buy a movie ticket to a theatre, and then let each of your friend re-use the ticket to go see the movie, too? Because the business model that makes sense is to see each two hour experience for each person. A watch on the other hand is about the material goods and what's sold is the enjoyment/use of the watch perhaps for years to some. Whether it's on person A or B is irrelevant to revenue.

On the other hand, you handing your movie or game you finished to people who should otherwise buy their own copy for the experience does cut into the revenue.

Now, the fact that they may already price that in to account for it happening doesn't change the issue; they'd presumably be able to lower prices if each copy were paid for.

Let's say you're making a movie and budget $10 million, hoping for review of $15 million, with 50 million potential customers.

One model is, one person buys a copy for $30, and copies it for the rest of the 50 million, leaving you with a big loss, which we agree is a problem.

Another model is that 3 million people each pay $5 (plus retail markup etc, call it $10 or $15), and then share their copy (not pirated) with the many of the rest.

Another model is that 10 million people each pay $1.50 for a copy, and don't share it.

This exludes many of the 50 million who would like to see it but won't pay $1.50 much less $5.00, but does make the 7 million who wouldn't spend $5.00 but will spend $1.50 buy their own copy. I'd say it's more fair for each person who wants to watch it to buy a (cheaper) copy, than to have a smaller number pay for the others who don't buy it at all.

In your movie ticket example, the "re-use" of the ticket, besides being a practical impossibility because they tear it in half, doesn't make sense because you are in effect paying to rent a seat where there are a finite number of seats available. Being able to infinitely re-use tickets means that you have in effect people squatting on physical private property without paying the owner, and there is no limit to it. It would shut the whole business down. The movie ticket example is an excellent CONTRAST to the watch and the DVD because it involves continued use/intrusion into the private property of the owner where the watch and DVD do not.

Your contrast of the watch and DVD doesn't really work out either. Selling a watch secondhand DOES impact revenues because the person buying the watch secondhand MIGHT have bought a new one had there been no secondhand market, just as the person buying your DVD or PC game secondhand MIGHT have bought a new one without the secondhand copy being available. The existence of a secondhand market will generally have a negative impact on revenues either way. So where's the distinction?

- wolf

 

[CanOWorms]

It's common in business-to-business settings, especially with sophisticated technical software. Engineering software is often "sold" in licenses, sometimes reaching over $100k/year for a single license. The licenses are also negotiated upon. They are custom. It's how the industry has been operating for quite some time. I wonder if this is what happened and the company that had negotiated the licensing agreement then sold the software to Vernor.

This is not exactly a normal consumer setting.

 

[bfdd]

wolf, sure they MIGHT of purchased a new one, but they also might not of. 40 dollars used vs 100 new and the person decided 40 dollars used is a good price to pay for it odds are they're not going to pay 100 new and might wait for the price to go down or just do without all together. Just because something is sold used does not mean that person had any interest in buying it new.

 

[Rainsford]

Copyright is one of the most important things society has for its advancement.

People say communists are naive because they fail to account for the need for incentive instead assuming everyone will be productive workers 'for the good of society'.

Yet many of these same people say 'screw copyright' as if the people who create things that are copyrighted will keep doing so without much compensation with copyrights.

Yes, copyrights can also be abused by big corporations. That's a separate issue.

We're at a time when the technology for digital piracy of practially all copyrighted material creates a historic risk to its creation.

We need to both reign in abuse and protect the incentive for the content business.

Except this case isn't even remotely about copyright...it's about contractual sales. Resale of products isn't "copying", thus shouldn't (and as far as I know, isn't) protected under copyright laws. This case is about whether or not you as a seller can require me to sign a contract that says I can't resell your product once I no longer need it.

 

[Darwin333]

In which case you are always free to demonstrate that you know more by correcting me.

- wolf

Well played, sir.

 

[Double Trouble]

IF you make the bald-faced charge that someone else knows less than they think they do, as bfdd did, you had BETTER be able to back you charge up with whatever was in your head to so confidently make that statement in the first place.

Got that?

Ok, that's fine, but you didn't ask bfdd to back the charge up with whatever thoughts led him to that conclusion, you asked him to factually and conclusively prove his assertion, which is factually impossible. I'm gonna drop this now, I'm not looking to get into an argument, just pointing out that was asked of him is impossible.

Either way, this will not get settled until the supremes rule on it. I'm no legal scholar (and heck, I haven't even read the statute in question), but this ruling has raised a lot of eyebrows in a lot of places, I'm curious how the supremes will rule -- assuming they take the case at all of course.

 

[Double Trouble]

Except this case isn't even remotely about copyright...it's about contractual sales. Resale of products isn't "copying", thus shouldn't (and as far as I know, isn't) protected under copyright laws. This case is about whether or not you as a seller can require me to sign a contract that says I can't resell your product once I no longer need it.

That's the way I'm reading it as well. The 9th is basically saying "there's nothing in the statutes that prevents the seller from putting such a provision in the licensing terms and enforcing it".

 

[Darwin333]

Except this case isn't even remotely about copyright...it's about contractual sales. Resale of products isn't "copying", thus shouldn't (and as far as I know, isn't) protected under copyright laws. This case is about whether or not you as a seller can require me to sign a contract that says I can't resell your product once I no longer need it.

The sticky point, as I understand it, is you don't actually own the product and therefor it is not yours to sell. You own a license to use the product and you generally can't sell those.

I disagree with them being able to basically force us to purchase "licenses" for software instead of an actual product but that is a separate issue. Personally I think that the entire industry has been shooting themselves in the foot with shit like this, it just makes more people say "fuck it, I am going to click my mouse a few times and get it for free and you can stick your "license" right up your ass".

 

[1prophet]

I don't see why software can't be sold secondhand like anything else. I just don't think it should be reproduced without permission. In other words, you shouldn't be able to make 50 copies and sell them. Otherwise, why is it different than buying, say, a watch, then reselling it some time later after using it?

- wolf

Because people in this country have been brainwashed by corporations into believing such nonsense. They are looking to create dynastic empires through perpetual ownership by continually extending copyrights and claiming you don't actually own anything.

As the public gets dumber and dumber they can try to take away more and claim it is just.

http://boingboing.net/2008/10/17/selling-used-cds-is.html

I remember when the RIAA tried going after music stores that sold used CD's in the 90's, and here they are at it again trying to limit what one can do with cd's they legally own.

Selling used CDs is still legal in America

Posted by Cory Doctorow, October 17, 2008 12:58 AM | permalink

The record industry lost a landmark battle last spring, when a court said that merely printing "not for resale" on an unsolicited promo CD does not prevent you from reselling it -- and certainly does not prevent me from buying it. The judgement establishes that "first sale" -- the legal doctrine that says that once you buy something, it's yours -- is still alive and well. This The Legality article unpacks it all for you:

Once again, the music industry overestimated the level of control they should be allowed to maintain over their copyrighted works. Just as when Sony invaded its consumers’ privacy by embedding software in CDs and when the five largest music distribution companies illegally corroborated to fix the price of CDs, the music industry has again violated the law. The United States District Court for the Central District of California concluded, via summary judgment, that the purported EULA included by UMG did not create a “license,” nor does it allow UMG to retain any control over the promotional CD. UMG gave away these CDs, and those who receive them are free to dispose of them as they see fit. Therefore, the court found, as the legal owner of the CDs in question, Mr. Augusto and Roast Beast Music broke no laws in selling these recordings, and may continue to do so. At least we can still sell our old CDs… Right?
It depends. While Mr. Augusto enjoys the right to sell his legally owned CDs, questions arise in a number of states as to who can purchase them. The music industry, it seems, is foregoing lawsuits in favor of promoting preventative legislation. Recent legislation in Florida, Utah, Wisconsin, and Rhode Island has made it more difficult to sell used CDs in those states than it is to get a driver’s license. In Florida, for example, anyone attempting to sell used CDs to a retailer must present identification and be fingerprinted, and any retailer looking to sell those same CDs must apply for a permit and submit a $10,000 bond with the Department of Agriculture and Human Services. Thankfully, those restrictions do not apply to online or person-to-person sales.​

How about Lexmark putting an encrypted microchip in their toner cartridges so legally only they can refill them because if you bypass their chip you are now in violation of the DMCA.

http://en.wikipedia.org/wiki/Lexmark_Int'l_v._Static_Control_Components

Lexmark invokes DMCA in toner suit

n an effort to control and reduce the refilling and redistribution of toner cartridges, Lexmark began distributing two distinct varieties of its toner cartridges. Under what was then known as the Prebate Program (now the Lexmark Return Program), Lexmark sold certain printer cartridges at a discount to customers who agreed to “use the cartridge only once and return it only to Lexmark for remanufacturing or recycling.” Lexmark's "Non-Prebate" cartridges could be refilled by the user without restrictions, and were sold without any discount. "Prebate" cartridges were as much as $50 cheaper,[2] but the user agreed (through a shrinkwrap license) to use the cartridge only once and return it to Lexmark. Lexmark touted the Prebate Program as a benefit to the environment and to their customers, since it would allow customers to get cheaper cartridges. For Lexmark, the benefit of the Prebate Program was that they could keep empty cartridges out of the hands of competing rechargers. Many users agreed to Lexmark's condition against purchasing unauthorized refills of the prebate cartridges.
To enforce this agreement, Lexmark cartridges included a computer chip that communicated with a "Printer Engine Program" built into the printer. The chips built into "Prebate" cartridges also included a 55-byte computer program, the "Toner Loading Program", that calculated the amount of toner used during printing. When the calculations indicated that the original supply of Lexmark toner should be exhausted, the printer would stop functioning, even if the cartridge had been refilled. [3] In addition, if the chip did not perform an encrypted authentication sequence, or if the Toner Loading Program on the chip did not have a checksum matching exactly a value stored elsewhere on the chip the printer would not use the cartridge.[4]
In 2002 SCC developed its own computer chip that would duplicate the 'handshake' used by the Lexmark chip. SCC's chip also included a verbatim copy of the Toner Loading Program, which SCC claimed was necessary to allow the printer to function. A Prebate cartridge could successfully be refilled if Lexmark's chip on the cartridge was replaced with the SCC chip.[3] SCC began selling its "Smartek" chips to toner cartridge rechargers.

How about Monsanto using the laws to claim ownership of all seed that has any of their genetically modified code even if accidental.

http://www.percyschmeiser.com/conflict.htm

The Battle​

Excerpt from Macleans Magazine May 17, 1999. Article by Mark Nichols​

"For 40 years, Percy Schmeiser has grown canola on his farm near Bruno, Sask., about 80 km east of Saskatoon, usually sowing each crop of the oil-rich plants with seeds saved from the previous harvest. And he has never, says Schmeiser, purchased seed from the St. Louis, Mo.-based agricultural and biotechnology giant Monsanto Co. Even so, he says that more than 320 hectares of his land is now "contaminated" by Monsanto's herbicide-resistant Roundup Ready canola, a man made variety produced by a controversial process known as genetic engineering. And, like hundreds of other North American farmer, Schmeiser has felt the sting of Monsanto's long legal arm: last August the company took the 68-year-old farmer to court, claiming he illegally planted the firm's canola without paying a $37-per-hectare fee for the privilege. Unlike scores of similarly accused North American farmers who have reached out-of-court settlements with Monsanto, Schmeiser fought back. He claims Monsanto investigators trespassed on his land -- and that company seed could easily have blown on to his soil from passing canola-laden trucks. "I never put those plants on my land," says Schmeiser. "The question is, where do Monsanto's rights end and mine begin?"​

There is much more out there but these three cases show how big corporations want perpetual ownership and will do whatever it takes ethical or not and push the legal boundaries with their lawyers, and if they initially lose they will just keep trying since they have the resources to do so.

It's all about control and ownership through backdoor monopolies, it wasn't enough that they wanted to stop piracy and counterfeiting, now they want complete control of their products cradle to grave.

Here is one far more technical but just as important in how Chrysler is looking to brick previous versions of their dealer scantools in order to keep the independent aftermarket mechanics down.

http://reviews.ebay.com/WiTECH-DO-N...or-BUY-USED-WiTECH_W0QQugidZ10000000017651314

Here is how it starts:​

I was updating my Witech Software the other day and for some mysterious reason, my Pod just simply shut down. It would no longer communicate with the PC nor was it being recognized by WiTech software. I called into WiTech's "premium support" line to find out and what I heard just broke my heart! First of all, not one person I spoke with knew anything about WiTech other than how to sell one. After days and days of calling and questioning I started to get answers from the manufacturer of the WiTech Pod. One by one, WiTech is shutting down unregistered, privately owned Pod's in much the same way that Ford locks out your VCM when your subscription expires. The only differance is that Chrysler will not allow you ANY access at all to your Pod for diagnostics, re-flashing, code reading, NOTHING! If your not sending them money every year to stay a "member" you are, essentually, screwed! At least with Ford VCM, when it expires, you can still do diagnostics, just no re-flashing. With WiTech, you get NOTHING.

So you ask: How can I avoid this?​

There is now only one way to get a WiTech Pod you bought used working once its shut down. You need to call WiTech, buy ANOTHER WiTech Pod kit which includes a Pod, A wireless router, software and a subscription, than after you get it up and running, you can than add your existing Pod or StarMobile onto your network. OH YEA, THATS RIGHT! Your StarMobile with Witech software on it (which you will have to use if you want to update the software to work on 2012 cars because Desktop Client is now officially in its last update) will shut down rendering it useless come the next update cycle. Once you have to update to the WiTech software, your StarMobile will become a useless piece of absolute crap unless you caugh up over 4 grand to buy a new Pod, router and software, plus a couple hundred bucks a year to keep each Pod or StarMobile current.
If your WiTech stuff runs right now, it will continue to run untel you take it onto the internet and their server detects it. Once you try to update or flash program a vehicle, they will cut your off! The simple answer here is, DO NOT GO ON LINE WITH YOUR WiTECH POD or StarMobile if it has WiTech software loaded onto it!

Those DIRTY RATS​

Chrysler knew EXACTLY what they were doing when they stopped issuing DVD updates for Desktop Client a little over a year ago. They did it to prevent us from being able to update our StarMobile units without having to go on line to do it. Once the update for desktop client disappears, you will be stuck with being able to only install WiTech software up to version 9.0 (June 08). Once you got comfortable with going on line and updating your software, they slip in that WiTech thing saying that you have to update to WiTech to continue to be able to update. Once you do that you just got the kiss of death! You simply hook up your Star Mobile up to the PC, hook it up to a car, go to get a flash off of TechAuthority, and BLAM!!!!! Your StarMobile locks up, and YOU ARE SCREWED!

How you going to unlock your StarMobile or Pod once its locked out?​

You go onto WiTech's website, request a subscription username and password, than you pay like 4 grand for equipment YOU ALREADY OWN, than pay another $230.00 per year to get the equipment you already own on to your membership subscription. You say "hey, they cant do that." Well guess what: THEY JUST DID! Hold on to your hat, it keeps getting better! ​

So what exactly do you get for the yearly "subscription" fee? Well, you get to call in when things dont go right with your software or hardware. Of course, you wont get any resonlution on the spot as none of the people who work the help desk know the product at all. What they will do is take your information, and than forward the request for service to the manufacturer, who will have the 1 guy who addresses technical problems for WiTech nationwide give you a call within 1 week. Than, hope to God your near the phone and have your equipment ready to go when he does call and when they deturmine that you have a software issue, they will than have someone else call you within 72 hours. If all else fails, you will than be told to send your stuff in and pay to have it repaired. If you cant diagnose software or hardware problems yourself, your pretty much with no diagnostic equipment for as long as two to three weeks. Tech support for Chrysler diagnostic tools is a complete waste of time and even with a subscription, you are for the most part, up the creek if you need to talk to someone who has a clue about this equipment. What was amusing was how I called in about my equipment and found that I knew more about the system than the person getting paid to help me resolve issues with it.

 

[Perknose]

Ok, that's fine, but you didn't ask bfdd to back the charge up with whatever thoughts led him to that conclusion, you asked him to factually and conclusively prove his assertion, which is factually impossible. I'm gonna drop this now, I'm not looking to get into an argument, just pointing out that was asked of him is impossible.

IF he has the data to back up his opinion, of course and quite simply, it is NOT, and you, a priori, cannot in any way assert that it is not.

At long last, and, at least, have you got that?

 

[piasabird]

Just because a company like Microsof, or IBM, or DELL, or HP can write a contract a certain way, that does not mean they have a right to use this contract to abuse consumers with their monopoly or oligopoly power. Abuse of power needs to be controlled.

 

[xj0hnx]

Anyway, what don't you understand? If the contract says you have a non-transferrable license, then you have a non-transferrable license. The only remedy for this is to pass a law, or amend the existing one, to state that non-transferrable licenses are not permitted and hence any contract that says as much is void as to that provision.
- wolf

Except there's this little problem for them ...

But as Vernor's lawyers pointed out, the distinction between a lease and a sale is based on the actual characteristics of the transaction, not merely on how the transaction is described by the parties. And characterizing AutoCAD as merely licensed, rather than sold, barely passes the straight face test. AutoCAD customers pay a lump sum at the time of purchase, with no obligation to make further payments or to return the software at the conclusion of the supposed lease. Even more damning, Autodesk's own website offers customers a variety of "purchase options" and the opportunity to "buy online" directly from Autodesk, with no indication that "buy" really means "license." Similarly, online retailer CDW offers customers an option to "lease" AutoCAD as an alternative to purchasing a copy. As the Electronic Frontier Foundation's Corynne McSherry put it in a Thursday blog post, "if it looks like a duck and quacks like a duck, chances are it's a duck." Autodesk clearly sells its software, and merely re-labeling the transaction as a license doesn't negate the First Sale Doctrine.
Vernor's lawyers also noted that he had never opened the AutoCAD packages and installed the software contained inside. Therefore, to the extent the licensing agreements were enforceable, they were enforceable against the original owners, not against Vernor. And even if the license agreements did somehow bind Vernor, at most Vernor could be guilty of breach of contract, not copyright infringement, which makes the use of the DMCA inappropriate.

 

[Darwin333]

No, if the seller of the license sells a non-transferable license.

This may contrast to the norm of people who buy a book and then lend to a friend to read, but when you think about it, why shouldn't each consumer of a product pay to consume?

It's more fair that way - and should be able to translate (if the free market is to be believed) into lower prices for each customer.

IMO, one person buying the product to use themselves is the fair model.

You must live a rather boring life.

I have friends over all the time while we are watching movies. Should I not allow them inside, or turn the movie off until it is over, unless they own a copy as well? What about cable TV? Should I ensure that all of my buddies pay for cable/satellite before I invite them over to watch a football game?

What about TVs in bars and restaurants? Are we going to need "cable/satellite ID cards" in order to go in? The local library often read books to children, should those children have to own the book to participate in the event that is publicly funded? Hell, libraries themselves seem to go against what you suggest.

 

[Darwin333]

Except there's this little problem for them ...

That sounds like a really good avenue to get this overturned. While I don't disagree with the legality of leasing software, intentionally misleading the consumer for profit is fraudulent.

The same thing should apply for something you, and any other reasonable person, assumes they are "purchasing" at a store and don't find out they are "leasing" it until they get to the 500 billion page EULA. Of course at that point you can not return the purchase to the store either.

 

[BoberFett]

You must live a rather boring life.

I have friends over all the time while we are watching movies. Should I not allow them inside, or turn the movie off until it is over, unless they own a copy as well? What about cable TV? Should I ensure that all of my buddies pay for cable/satellite before I invite them over to watch a football game?

What about TVs in bars and restaurants? Are we going to need "cable/satellite ID cards" in order to go in? The local library often read books to children, should those children have to own the book to participate in the event that is publicly funded? Hell, libraries themselves seem to go against what you suggest.

Craig is one of this forums biggest jokes. He's against the accumulation of wealth, unless of course it's the accumulation of wealth by massive IP conglomerates. Don't expect logic from that lying idiot.

 

[BoberFett]

Because people in this country have been brainwashed by corporations into believing such nonsense. They are looking to create dynastic empires through perpetual ownership by continually extending copyrights and claiming you don't actually own anything.

As the public gets dumber and dumber they can try to take away more and claim it is just.

The worst part is that leftist fools believe that this is a failure of the free market rather than a failure of government. This kind of consumer abuse is precisely BECAUSE of government and it's incestuous nature with big business in the form of oppressive legislation such as the DMCA.