First Sale Doctrine gutted by 9th Circuit

[daishi5]

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

I am confused, you say you don't see why it can't be sold. But, from my reading of the article and your support of their ruling, it seems like you also think the law says you cannot resell software. The article says that you can't sell something you are only licensing, and unless I missed something almost every EULA seems to contain statements that you are only licensed to use the software. At least in the ones I bother to actually read.

 

[dainthomas]

So conservatives are arguing that judges should legislate from the bench? Are they even TRYING to be consistent anymore?

 

[shira]

Forget about conservative vs. liberal for the moment, the serious question here is this: these judges are reading laws, i.e. acts of Congress and intepretting the language of those laws because that is their JOB. In this case, we have a law that was passed in 1906, long before computers or software existed, and it hasn't been updated. What exactly do you expect these "pieces of shit" to do about it? Ignore the statute and legislate the result they want from the bench?

Just because you don't like the result doesn't mean it is incorrect. Sometimes the remedy is with the legislature and not the courts. All this whining about so-called "activist" judges, except when the court comes to the correct result by reading the text of the law, then they aren't being the activists they should be.

- wolf

Wolfy, Wolfy. You're failing to understand the conservative "principle" at work here:

If a judge follows the law to the letter, and the conservatives don't like that ruling, that's judicial activism.

If a judge rules that the law is vague or doesn't cover a particular new situation, or rules that the law is unconstitutional, but the conservatives don't like THAT ruling, that's also judicial activism.

In other words, the conservative principle is: Judges should just interpret the law such as to get a conservative outcome.

 

[woolfe9999]

I am confused, you say you don't see why it can't be sold. But, from my reading of the article and your support of their ruling, it seems like you also think the law says you cannot resell software. The article says that you can't sell something you are only licensing, and unless I missed something almost every EULA seems to contain statements that you are only licensed to use the software. At least in the ones I bother to actually read.

You're confused because I think the Court ruled correctly on the law but I do not like the result? To be clear: I have read the Court's decision and on balance, I think it comports with the relevant statutes. I, however, think that First Sale should apply to software. Accordingly, I would like the legislature to amend the existing law to say as much.

Frankly, the trouble with most commentary on legal issues on this board is that almost everyone evaluates a court decision based entirely on the outcome they desire, and ignores whether the decision is correct on the law. We then tend to criticize judges for being "biased," by which we mean that judges are pursuing a desired outcome rather than following the law. Yet that is precisely what most of us seem to want, so long as the judge in question desires the same outcome that we desire. Which makes most of us hypocrits.

- wolf

 

[woolfe9999]

Wolfy, Wolfy. You're failing to understand the conservative "principle" at work here:

If a judge follows the law to the letter, and the conservatives don't like that ruling, that's judicial activism.

If a judge rules that the law is vague or doesn't cover a particular new situation, or rules that the law is unconstitutional, but the conservatives don't like THAT ruling, that's also judicial activism.

In other words, the conservative principle is: Judges should just interpret the law such as to get a conservative outcome.

Yes, that is basically what everyone seems to want. They want all court rulings to support their political, economic and social agendas.

- wolf

 

[thraashman]

That means that the 9th has a well-deserved reputation for issuing rulings on very tight interpretations of law when common sense dictates that such an approach is foolish and of issuing rulings on very broad interpretations of law when common sense dictates a more focused reading.

For example, in cases where the issues are broad the 9th rules that 'the 43rd use of the word "and" in the 71st paragraph is spelled incorrectly so the law is invalid' while on very focused issues the 9th rules 'We took it upon ourselves to note that the 3rd Amendment dictates soldiers can't be housed in private dwellings without the owners' consent in peacetime but since you pay property taxes you don't "own" the dwelling so your 3rd Amendment rights never apply and since you don't own the home you can't claim defense of the home for harming an intruder so Defendant is guilty and Burglar goes free and is entitled to $15,000,000,000.'

There's a reason 9th has largest % of cases overturned by the Supreme (outside of the DC district).

I'm a bit late to the party so this may have already been said.

Just felt the need to correct something that isn't true. The 9th circuit has the highest number of cases overturned, but not that highest percentage. Last number I found were from July 09 where both 6th and 8th had a 100% overturn rate, and the 9th did not. Also the 9th circuit has the highest docket count and not surprisingly as a result has the highest number of cases heard of any circuit. And the percentage of overturn refers to the percentage of cases heard by the supreme court from that district that get overturned. If you were talking about percentage of cases heard by a district then heard by the supreme court and overturned, the 9th circuit would actually have the lowest as it hears so many more cases that so few make it to the supreme court on appeal.

Funny thing is that while most people tend to bitch about the 9th circuit being liberal, this specific ruling is actually quite conservative. And while I don't particularly agree with it, these judges do have more experience than I do in interpreting the law.

 

[Patranus]

As someone who regularly deals with Autodesk, I can say the company has turned evil. It is no longer your partner, now it's your pimp.

LOL - That was the first company I think thinking about when I read this.

 

[daishi5]

You're confused because I think the Court ruled correctly on the law but I do not like the result? To be clear: I have read the Court's decision and on balance, I think it comports with the relevant statutes. I, however, think that First Sale should apply to software. Accordingly, I would like the legislature to amend the existing law to say as much.

Frankly, the trouble with most commentary on legal issues on this board is that almost everyone evaluates a court decision based entirely on the outcome they desire, and ignores whether the decision is correct on the law. We then tend to criticize judges for being "biased," by which we mean that judges are pursuing a desired outcome rather than following the law. Yet that is precisely what most of us seem to want, so long as the judge in question desires the same outcome that we desire. Which makes most of us hypocrits.

- wolf

Misunderstanding, I thought you meant you didn't see a law that said you couldn't resell software.

Also, the commentary on our judiciary system seems to come from confusion about the roles some courts play. It is clear from my brief reading of some court opinions that some courts are just supposed to go by what the law says, but many people view the court as our defense against bad laws. The role the courts feel they should play differs from the role people believe they should play, and many of us who have no legal education don't know enough (me included). For example, I would like to see the patriot act, and those national security letters ruled as illegal, and eliminated. I don't care what court does it, but any court that can get rid of them is a good thing in my book. I don't know which court would be appropriate, I also can't point to any part of the constitution that would prevent national security letters, but I feel very strongly that even if they don't necessarily violate any letters of the constitution they do violate the spirit of government it intended to create.

 

[woolfe9999]

Misunderstanding, I thought you meant you didn't see a law that said you couldn't resell software.

Also, the commentary on our judiciary system seems to come from confusion about the roles some courts play. It is clear from my brief reading of some court opinions that some courts are just supposed to go by what the law says, but many people view the court as our defense against bad laws. The role the courts feel they should play differs from the role people believe they should play, and many of us who have no legal education don't know enough (me included). For example, I would like to see the patriot act, and those national security letters ruled as illegal, and eliminated. I don't care what court does it, but any court that can get rid of them is a good thing in my book. I don't know which court would be appropriate, I also can't point to any part of the constitution that would prevent national security letters, but I feel very strongly that even if they don't necessarily violate any letters of the constitution they do violate the spirit of government it intended to create.

There are only two ways in which a court can throw out a law. First, if it violates a Constitution, either federal or state. Second if it is pre-empted by a superior body of law which is kind of the same thing as the first. Other than that, the courts can only follow the laws on the books. However, the laws are often unclear in general or simply unclear in terms of how they apply to a particular case, and that is where the courts have to do some interpretting. In general, however, no they cannot just throw out a law that is on the books.

- wolf