First Sale Doctrine gutted by 9th Circuit

[Moonbeam]

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).

You realize, of course that what you call a deserved reputation is their reputation among morons, right?

 

[sactoking]

You realize, of course that what you call a deserved reputation is their reputation among morons, right?

Ummmm....... I know your reputation here so I won't let you bait me. The reputation I speak of is non-partisan, since both liberals and conservatives agree that the 9th misses the mark a lot with very oddly reasoned rulings.

 

[Fern]

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

Decent chance the case will be overturned.

BTW: Look at BoberFett's link above about the original case. A look at that indicates this more recent ruling looks to be questionable. Also indicates the 9th is turning away from it's own precident.

Fern

 

[woolfe9999]

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.

I'm guessing that "strict textual" readings are a bad idea when you don't like the result, as are "broad interpretations."

- wolf

 

[woolfe9999]

Decent chance the case will be overturned.

BTW: Look at BoberFett's link above about the original case. A look at that indicates this more recent ruling looks to be questionable. Also indicates the 9th is turning away from it's own precident.

Fern

I think you need to cite a credible source showing actual statistics about the supposedly high reversal rate of the Ninth Circuit.

As for turning away from it's own precedent, I dunno, but they are reading the relevant statute correctly here. It may well be that other courts, including the Ninth in the past, have ruled for result rather than followed the law.

- wolf

 

[Craig234]

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.

 

[bfdd]

I'm guessing that "strict textual" readings are a bad idea when you don't like the result, as are "broad interpretations."

- wolf

I don't think you know as much about the first sale doctrine as you think you do.

 

[bfdd]

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.

So because of piracy we should fuck legitimate consumers over, got it.

 

[woolfe9999]

I don't think you know as much about the first sale doctrine as you think you do.

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

- wolf

 

[woolfe9999]

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.

So you think people should be able to resell software they buy or not?

- wolf

 

[Craig234]

So you think people should be able to resell software they buy or not?

- wolf

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.

I say this as someone who probably owns more computer games than anyone else in the forum, never reselling them (except one guy I saw who gives me a run for the money).

On the other hand, if the customers want a transferrable license enough to pay for it, then there's no problem with sellers giving them that, priced profitably.

 

[Craig234]

So because of piracy we should fuck legitimate consumers over, got it.

When I say people who claim to say my position are wrong 95% of the time, I'm having a hard time remembering the other 5%.

 

[woolfe9999]

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.

I say this as someone who probably owns more computer games than anyone else in the forum, never reselling them (except one guy I saw who gives me a run for the money).

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

 

[Double Trouble]

It's the 9th circuit, it's the most overturned court in the land for a good reason. In this case though, it would seem that the law needs to be updated to specifically also allow sale of a license to use (in addition to sale of an item you own). That, or consumers need to just stop buying things that have onerous licensing terms... but that won't happen.

 

[Craig234]

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

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.

 

[bamacre]

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

Agreed.

 

[sao123]

this ruling only affects 7 states.

Time to move into one of the 26 states which have passed anti-UCITA legislation to prevent this sort of thing.

 

[Ns1]

wall of text

Big difference between a movie ticket and a dvd. A movie ticket is basically a license to watch the movie. The DVD WAS a physical copy for you to do whatever the fuck you want with.

If they turn the DVD into a LICENSE, then why the fuck would anyone "buy" a dvd? You'd in effect be renting a dvd at 10x market rate.

it should be noted that I defend copyrights a lot on this forum, but this is still BS

 

[Perknose]

I don't think you know as much about the first sale doctrine as you think you do.

I believe I've spotted your problem.

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

- wolf

The ball is in your court, bfdd. Support your charge against woolfe, slink away in shame, or post misdirecting bluster without backing up your charge at all.

The choices are yours to make, and you shall be known by the one you make:

1. Erudite constitutional scholar and all around stand-up guy if you conclusively and factually support your charge against woolfe.

2. Gutless weasel if you just slink away in silence.

3. Shameless, integrity-lacking blowhard if you answer with no factual support for your charge but simply answer with a rhetorical attack on me or woolfe or the 9th Circuit or Liberals or hippies or Democrats or Obama or that doesn't factually support your charge.

 

[Double Trouble]

I think you need to cite a credible source showing actual statistics about the supposedly high reversal rate of the Ninth Circuit.

"Over the past fifty years, the Ninth Circuit, the largest circuit court in the country, has been reversed by the U.S. Supreme Court an average of 10.78 times per term. The next closest circuit, the Fifth Circuit, which is also the second largest circuit, was reversed an average of 7.42 times." (Kevin Scott, Supreme Court Reversals of the Ninth Circuit, 48 Ariz. L. Rev. 341.)

If you'd like to take a peek at the raw data yourself, have at it: http://scdb.wustl.edu/

I'm guessing the 9th is not necessarily overturned more often because it's simply liberal, it gets overturned because 1) a lot of interesting cases come from the 9th, along with new legal theories, and 2) the court isn't necessarily liberal, it's more quirky and prone to strange decisions.

 

[JSt0rm]

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

Actually this would stop red box from shitting on dvd sales.

 

[bfdd]

I believe I've spotted your problem.



The ball is in your court, bfdd. Support your charge against woolfe, slink away in shame, or post misdirecting bluster without backing up your charge at all.

The choices are yours to make, and you shall be known by the one you make:

1. Erudite constitutional scholar and all around stand-up guy if you conclusively and factually support your charge against woolfe.

2. Gutless weasel if you just slink away in silence.

3. Shameless, integrity-lacking blowhard if you answer with no factual support for your charge but simply answer with a rhetorical attack on me or woolfe or the 9th Circuit or Liberals or hippies or Democrats or Obama or that doesn't factually support your charge.

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?

 

[JSt0rm]

The DVD WAS a physical copy for you to do whatever the fuck you want with.

incorrect. you need to reread the warning at the beginning of every dvd you own again.

 

[Double Trouble]

I believe I've spotted your problem.

The ball is in your court, bfdd. Support your charge against woolfe, slink away in shame, or post misdirecting bluster without backing up your charge at all.

The choices are yours to make, and you shall be known by the one you make:

1. Erudite constitutional scholar and all around stand-up guy if you conclusively and factually support your charge against woolfe.

2. Gutless weasel if you just slink away in silence.

3. Shameless, integrity-lacking blowhard if you answer with no factual support for your charge but simply answer with a rhetorical attack on me or woolfe or the 9th Circuit or Liberals or hippies or Democrats or Obama or that doesn't factually support your charge.

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

We'll know in due time. If the scotus flips the case and tosses it back down to the lower courts, we'll know the 9th was full of crap as is frequently the case. If not, then not.

 

[Infohawk]

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?

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.)