First Sale Doctrine gutted by 9th Circuit

[BoberFett]

Well done. That's our wonderful government at work.

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

Maybe this is part of that stimulus I keep hearing about. If nothing containing "IP" can be purchased second hand simply because the creator tells you that you're a licensee and not an owner, then everyone has to buy it new. Used movies, books, games, we can make sure that Americans never really own anything! Talk about your obvious rent-seeking...

 

[Ns1]

:thumbsdown;

 

[Infohawk]

Isn't this the libertarian position? You're free to contract with anyone as you see fit. If content producers only want to lease you something, isn't that their right?

Personally, I would be fine with the government outlawing these licensing schemes.

 

[Fern]

Well, it is the 9th circuit.

The ruling according to the article:

The first-sale doctrine of 1909, in its current form, allows the “owner of a particular copy” of a copyrighted work top sell or dispose of his copy without the copyright owner’s authorization. “The first sale doctrine does not apply to a person who possesses a copy of the copyrighted work without owning it, such as a licensee,” the court ruled.

Maybe it's just me, but the obvious effin question is if I don't own the copyrighted product, just a license to use it, why the h3ll can't I sell/transfer the license I own?

Maybe that was addressed in the case, but I don't feel like reading 85 pages to find out. I don't think this ruling will stand anyway.

Fern

 

[BoberFett]

Isn't this the libertarian position? You're free to contract with anyone as you see fit. If content producers only want to lease you something, isn't that their right?

Personally, I would be fine with the government outlawing these licensing schemes.

Most libertarians reject the Thought Monopoly known as copyright to begin with, so it would be a moot point in a purely libertarian world.

However, practicality dictates that content creators should be paid for their work, so copyright laws were put into place with certain limits:


Limits on the length of the monopoly

Fair use rights so that the copyrighted material can be spread without fear of reprisal

First sale doctrine so that a purchaser of a copyrighted item has the limited ability to sell that to someone in the future


All three of those compromises are being attacked constantly by massive copyright conglomerates so as far as I'm concerned the "contract" between producers and the public is no longer valid. Everybody can pirate everything for all I care, those thieves and their Thought Monopoly can bite me.

 

[PeshakJang]

Well done. That's our wonderful government at work.

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

Maybe this is part of that stimulus I keep hearing about. If nothing containing "IP" can be purchased second hand simply because the creator tells you that you're a licensee and not an owner, then everyone has to buy it new. Used movies, books, games, we can make sure that Americans never really own anything! Talk about your obvious rent-seeking...

Liberals telling us that we don't really own anything? Color me surprised!

Then again, they've already said that we don't really own money... we just borrow it from the government every year.

 

[BoberFett]

Well, it is the 9th circuit.

The ruling according to the article:



Maybe it's just me, but the obvious effin question is if I don't own the copyrighted product, just a license to use it, why the h3ll can't I sell/transfer the license I own?

Maybe that was addressed in the case, but I don't feel like reading 85 pages to find out. I don't think this ruling will stand anyway.

Fern

http://arstechnica.com/tech-policy/...odesk-affirms-right-to-sell-used-software.ars

 

[werepossum]

Well done. That's our wonderful government at work.

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

Maybe this is part of that stimulus I keep hearing about. If nothing containing "IP" can be purchased second hand simply because the creator tells you that you're a licensee and not an owner, then everyone has to buy it new. Used movies, books, games, we can make sure that Americans never really own anything! Talk about your obvious rent-seeking...

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.

 

[bfdd]

Seriously fucking bogus. If this doesn't get overturned I'll never spend money another copyrighted piece ever again.

 

[woolfe9999]

Well, it is the 9th circuit.

The ruling according to the article:



Maybe it's just me, but the obvious effin question is if I don't own the copyrighted product, just a license to use it, why the h3ll can't I sell/transfer the license I own?

Maybe that was addressed in the case, but I don't feel like reading 85 pages to find out. I don't think this ruling will stand anyway.

Fern

What does that mean, "it's the Ninth Circuit?" Half the judges on that Court were appointed by republicans, and in this particular case, 2 of the 3 judges on the panel were appointed by GWB. Bober did manage to work the word "stimulus" into his OP though, so perhaps Barack the Magic Negro is responsible for this outrage. You never know.

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. Unfortunately this court was interpretting (faithfully IMO), a law that was passed in 1906 and has never been amended since. Damn, too bad the Ninth Circuit isn't a more "activist" Court or they would have ignored the law and promoted their own solicy policy agenda instead.

- wolf

 

[Ns1]

Seriously fucking bogus. If this doesn't get overturned I'll never spend money another copyrighted piece ever again.

Basically - there's no incentive to own. Why "buy" a DVD when dropping a dollar @ RedBox or getting it from Netflix is practically the same thing?

$15 + no salvage value = fuck that

 

[RabidMongoose]

Also, I don't think that the first sale doctrine is something that the 'copyleft' is against...if anything, it's the 'copyright' that would want to gut it.

 

[bfdd]

Basically - there's no incentive to own. Why "buy" a DVD when dropping a dollar @ RedBox or getting it from Netflix is practically the same thing?

$15 + no salvage value = fuck that

Exactly, fuck them. I guess they just want to drive more people into pirating music, movies, tv shows, books, video games, etc. That's the only thing I can get out of this. Basically a big FUCK YOU to consumers from the 9th circuit. Honestly it's time we get these judges out of there, like now. Shit needs to be done.

 

[woolfe9999]

Exactly, fuck them. I guess they just want to drive more people into pirating music, movies, tv shows, books, video games, etc. That's the only thing I can get out of this. Basically a big FUCK YOU to consumers from the 9th circuit. Honestly it's time we get these judges out of there, like now. Shit needs to be done.

Why are these conservative judges at fault as opposed to law they are correctly reading?

Damn, you guys are way too hard on conservative judges.

- wolf

 

[bfdd]

Why are these conservative judges at fault as opposed to law they are correctly reading?

Damn, you guys are way too hard on conservative judges.

- wolf

I don't give a flying fuck if they're conservative or liberal. It doesn't change the fact they're pieces of shit.

 

[Ronstang]

Basically - there's no incentive to own. Why "buy" a DVD when dropping a dollar @ RedBox or getting it from Netflix is practically the same thing?

$15 + no salvage value = fuck that

Then after you have dropped that buck at Redbox you can simply image the DVD to a HD and now you may not "own" it but you do possess it.

 

[woolfe9999]

I don't give a flying fuck if they're conservative or liberal. It doesn't change the fact they're pieces of shit.

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

 

[Jaskalas]

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

Hah.. get Congress to do something. You're a funny man. Also correct.

It was updated in 76... Also, have you even read it? Because they basically ruled the opposite of what the First Sale Doctrine is.

Well no, I haven't....

If anyone else wants to... http://en.wikipedia.org/wiki/First-sale_doctrine

 

[bfdd]

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

It was updated in 76... Also, have you even read it? Because they basically ruled the opposite of what the First Sale Doctrine is.

edit- oh and apparently there were other amendments which changed parts of section 109 also.

 

[Moonbeam]

What does that mean, "it's the Ninth Circuit?" Half the judges on that Court were appointed by republicans, and in this particular case, 2 of the 3 judges on the panel were appointed by GWB. Bober did manage to work the word "stimulus" into his OP though, so perhaps Barack the Magic Negro is responsible for this outrage. You never know.

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. Unfortunately this court was interpretting (faithfully IMO), a law that was passed in 1906 and has never been amended since. Damn, too bad the Ninth Circuit isn't a more "activist" Court or they would have ignored the law and promoted their own solicy policy agenda instead.

- wolf

Your accurate statement of the facts are going to go over like a lead balloon, in my opinion. How dare those idiots accurately interpret the law.

 

[sactoking]

What does that mean, "it's the Ninth Circuit?"

- wolf

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).

 

[Moonbeam]

It was updated in 76... Also, have you even read it? Because they basically ruled the opposite of what the First Sale Doctrine is.

edit- oh and apparently there were other amendments which changed parts of section 109 also.

Personally, if it is any consolation to you, I am sure you know the law better than those judges who have spent their lives in the law. I hope you write them a letter and explain to them where they went wrong.

 

[woolfe9999]

It was updated in 76... Also, have you even read it? Because they basically ruled the opposite of what the First Sale Doctrine is.

edit- oh and apparently there were other amendments which changed parts of section 109 also.

It wasn't updated in 1976 in any way that would change the result here. IIRC, it has always required "ownership," and the original SCOTUS decision which carved out the first sale doctrine even says that it does not apply in contractual license situations. The original statute of 1909 (not 1906 as I erreneously stated before) was based off that SCOTUS decision. In any event, the court quotes the current version of the law, which states that first sale applies to "owners."

The court's ruling is very textual and that I'm afraid is that. I don't like it any more than you do. In fact, I hate it. But any further action should be at the legislative level.

- wolf

 

[Rainsford]

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).

Well that's probably a good analysis of the problems with the 9th Circuit, but to be honest, I'm not sure that's what Fern meant. For some conservatives, 9th Circuit is the liberal, judicial activist boogeyman, even though it's really not.

 

[Rainsford]

It wasn't updated in 1976 in any way that would change the result here. IIRC, it has always required "ownership," and the original SCOTUS decision which carved out the first sale doctrine even says that it does not apply in contractual license situations. The original statute of 1909 (not 1906 as I erreneously stated before) was based off that SCOTUS decision. In any event, the court quotes the current version of the law, which states that first sale applies to "owners."

The court's ruling is very textual and that I'm afraid is that. I don't like it any more than you do. In fact, I hate it. But any further action should be at the legislative level.

- wolf

Agreed. There is no legal justification for first sale doctrine, at least when contractual sales are involved. In order to protect it, it seems like there would have to be specific legislation that prohibits non-transferable clauses in contracts.