Court decides that right of first sale isn't

By on September 11, 2010 10:39:57 AM from Elemental Forums Elemental Forums External Link

ZubaZ

Join Date 11/2001
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If the EULA says you've licensed your software instead of buying it and further says that you cannot transfer the software then you can't.

Glad that's "settled". 

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September 11, 2010 10:51:11 AM from WinCustomize Forums WinCustomize Forums

I always knew that. When you sell your system you're suppose to destroy all of your software.

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September 11, 2010 10:56:14 AM from Elemental Forums Elemental Forums

From the article...

"So, to recap: EULAs are binding, they can control just about everything you might dream up, and only Congress can change the situation."

So what about EULA's that can't be read until after opening the software package?  Are the courts prepared to over turn store policies prohibiting refund for anything short of product fail? 

 

"We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions."

So how is the user gonna know they are buying a license rather than purchasing a copy unless there is mandatory labeling?  And what considerations have the courts made to ensure that a copyright owner doesn't revoke the license to require further payment?  Would we really be buying a license to use the product indefinitely? Or would we be paying for a leased license with future terms for renewal?  Oy.  I don't think I like the direction of this.

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September 11, 2010 11:06:37 AM from WinCustomize Forums WinCustomize Forums

Caveat emptor.

Insist on reading the EULA before purchasing. WhiteElk asks some very astute questions that aren't really all that clear in the court decision.

Guess you have to be a lawyer to do or understand just about anything nowadays.

Still, thanks, Zu.

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September 11, 2010 11:13:33 AM from WinCustomize Forums WinCustomize Forums

WhiteElk the customer who buys any product or service still is repsonsible to know and understand what they are entering into with the purchase.  If it's not clear to you then you need to ask questions before hand, in this day and age that would mean doing some research of the product or service online.  Yes it is time consuming.

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September 11, 2010 11:32:00 AM from Elemental Forums Elemental Forums

Quoting Philly0381,
that would mean doing some research of the product or service online.  Yes it is time consuming.

 

No. It is Illegit. Simply because you shouldn't need an internet connection to buy software.

All this could be solved by putting the EULA on the box but, guess what? That would make sales drop.

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September 11, 2010 11:36:15 AM from Elemental Forums Elemental Forums

Yep, it seems that the climate has changed such that reading the EULA prior to purchase may have dramatically increased in importance.  If the EULA is unclear, or is unavailable prior to purchase... well it may be best to just bag it.  The game Civ5 was a purchase I was assured to make.  Upon learning that a third party client was required, I researched into that company including the reading of their EULA.  The EULA was ambiguous and choke full of exploit.  But I gathered that this third party client has the unchecked ability to revoke my access to the software license I purchased.  They can do this despite not holding the copyright, and regardless of the vendor used.  I wasn't willing to grant them this power.  Upon research into alternate ESD methods I came to know about Stardock.   I'm gonna vote with my wallet on this issue.  Outfits like Stardock get my business. 

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September 11, 2010 11:50:13 AM from WinCustomize Forums WinCustomize Forums

Simple solution is, stop Buying and then maybe things will change.  Would only take a few months if people did that.

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September 11, 2010 12:06:28 PM from WinCustomize Forums WinCustomize Forums

Nothing has changed. It has always been a case of buying a license to use software and not buying the software. The disc is just media, it's not that you are buying.

That reality comes as shock to some people because they would rather believe their own opinion than fact.

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September 11, 2010 12:18:44 PM from WinCustomize Forums WinCustomize Forums

The sad thing is under most EULA, the end user pretty much has no rights.

The EULAs are written so the average user can't understand them and as WhiteElk points out, some have a catch 22 to even read them.

I've read in some EULAs that the company can't be held libel for any damage that the software causes. In that case a PC manufacturer could legally install software onto a machine that could fry the hardware after a few years causing a need for a new PC purchase. While it sounds far fetched, it's bound to happen. Think of built in overclocking utilities that cause CPU burnout after the warranty expires. Most users would be oblivious to the cause and would blindly go out and by another PC...some from the same manufacturer.

CarGuy1 quickly puts his tinfoil hat back on

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September 11, 2010 12:24:55 PM from Elemental Forums Elemental Forums

A great way to be a pain in the arse is to say you do not accept the terms of the EULA and demand a refund.   The part of the install where it says, "I agree"--just don't.    And then you go to the store where they say "sorry, we don't issue refunds", and you just say, "the hell you don't".    Like Best Buy will say, "we only issue refunds for unopened software".   But you have to open the software before they ask you to agree to their license.   They'll refer you to Microsoft (or whoever the manufacturer is) to get your refund.   And no--you didn't buy it from Microsoft.  You bought it from Best Buy.  Best Buy owes you the refund.  Use your cell phone camera to record the initial conversation.   Then you go to the state regulatory bodies.    Be a big enough terd, you will get your refund.   And if enough people did it, maybe software companies would start to get the message.

I've gone to the state before--not with software, but for things ranging between $500-$4000.   Let's just say it is highly effective.  Biggest motivator is that I hate to see consumers ripped off.  If it was just me it would be hardly worth the trouble--and that is exactly what they are counting on.   But the $4000 thing, that was my wedding.   I went to the Attorney General to bust up an antitrust ring.   I also went to the Zoning board since they were holding a commercial venue in a residential district.  I got all my money back from the venue and that venue is not in business anymore.

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September 11, 2010 12:29:19 PM from WinCustomize Forums WinCustomize Forums

In that case a PC manufacturer could legally install software onto a machine that could fry the hardware after a few years

 Hey! Are you picking on poor old Vista again?

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September 11, 2010 12:36:51 PM from Elemental Forums Elemental Forums

Quoting Fuzzy Logic,
Nothing has changed. It has always been a case of buying a license to use software and not buying the software. The disc is just media, it's not that you are buying.

That reality comes as shock to some people because they would rather believe their own opinion than fact.

The ability to enforce has changed.  It is of no surprise to me that the law becomes more specific as DRM schemes evolve.  Services such as steamworks can outright prevent a user from accessing the software they've licensed.   All it takes is a few keystrokes from a remote terminal.   It is no longer a matter of a "boots on the ground" policing.  It becomes more pratical to enforce license restrictions.   Therefore, these restrictions are of an increased importance.  It is a notable change.

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September 11, 2010 12:37:33 PM from Elemental Forums Elemental Forums

Quoting WhiteElk,
From the article...

"So, to recap: EULAs are binding, they can control just about everything you might dream up, and only Congress can change the situation."

So what about EULA's that can't be read until after opening the software package?  Are the courts prepared to over turn store policies prohibiting refund for anything short of product fail? 

 

"We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions."

So how is the user gonna know they are buying a license rather than purchasing a copy unless there is mandatory labeling?  And what considerations have the courts made to ensure that a copyright owner doesn't revoke the license to require further payment?  Would we really be buying a license to use the product indefinitely? Or would we be paying for a leased license with future terms for renewal?  Oy.  I don't think I like the direction of this.

I agree, it sounds like something that needs challenged.  That or we just stop buying games. 

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September 11, 2010 1:19:36 PM from Elemental Forums Elemental Forums

I really doubt this will change anything. People are still gonna sell second-hand software regardless of the license agreement. If not on eBay, then at at the very least to their friends. And no one can enforce that.

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September 11, 2010 1:39:17 PM from Elemental Forums Elemental Forums

Unfortunately, the article itself uses hostile wording to skew the intent of the ruling. It also makes huge leaps from X to 1. *shrugs* As if all things, as Fuzzy pointed out, the devil is in the details of the case. It also implies a lot of false facts as if they were new and shocking.

 

So while a a valid news item, hardly as controversial and groundbreaking as the website would have you believe. It does as much to incite a moral panic as inform.

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September 11, 2010 2:08:22 PM from Elemental Forums Elemental Forums

And yeah, as WhiteElk said, that third party client, which is really popular- the reason I don't use their service for many games is due to what he said.  I know with Impulse, if they jack things up bad enough, and I have to dispute, my games aren't going bye-bye.   BTW, I'm not saying chargeback is the immediate option, that's an abuse of power- but if I really got hosed by someone, and it couldn't be resolved in a timely manner, I would. 

 

With that other client, if you got enough games from them they got you by the balls.  I am willing to get games on that client, but only with retail sales (which makes that client just an annoying DRM scheme), or games where you're just buying a serial you can take outside of that client (such as Mount and Blade games).   

 

At least for me, return policies and consumer protection does affect sales.  

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September 11, 2010 2:23:19 PM from Elemental Forums Elemental Forums

The best thing to do is simple, don't buy games with ridiculous forms of DRM.  I absolutely LOVE the concepts behind RUSE, but I will never buy it because of the draconian requirements to play the game.  Same goes for Wings of liberty, no internet no play .. OK no buy.

 

If we don't feed them, they will die... the companies will just fail. 

 

That is the only solution .. that or make you own games.

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September 11, 2010 2:52:24 PM from Stardock Forums Stardock Forums

The typical EULA says:
blablabla... not responsible for unintentional damage...

blablabla... IF YOU REJECT THE TERMS OF THIS AGREEMENT WITHIN THIRTY (30) DAYS AFTER YOUR PURCHASE, YOU MAY CALL (some number) TO REQUEST A FULL REFUND OF THE PURCHASE PRICE. 

(That is not UNIVERSAL, but it's in some EULA's.. two thrids of the ones I've read, roughly.).

I do consider EULA's slightly less palatable than a cancerous growth. I loved one; it basically said that if local laws prohibited some of the points in the license agreement, you had to return it. (They did... yet they still exported it here?).

There are some reasonable ones out there though... they don't ALL read like a contract with the devil.

 

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September 11, 2010 3:20:21 PM from Elemental Forums Elemental Forums

Quoting hannahb,
The best thing to do is simple, don't buy games with ridiculous forms of DRM.  I absolutely LOVE the concepts behind RUSE, but I will never buy it because of the draconian requirements to play the game.  Same goes for Wings of liberty, no internet no play .. OK no buy.

 

If we don't feed them, they will die... the companies will just fail. 

 

That is the only solution .. that or make you own games.

 

True enough.  I vote with my pocketbook also.  Blood Bowl is a game I would have bought at full price, but Securom (and the nasty form at that)= no sale.  Civ V is a game that I won't buy at full price due to mandatory Steamworks.  I've passed on some games on Impulse due to DRM, and I bought SFIV off Impulse to support them using GOO instead of Securom (I don't consider GOO that bad- it's what Impulse uses mostly except that it's done at launch to me, which isn't a problem for a DD game)

 

 

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September 11, 2010 5:41:06 PM from WinCustomize Forums WinCustomize Forums

Parts of a EULA are not binding, depends where you live in the world.

When are you guys going to get a court system based on fairness and justice and not for deep pockets. Stop milking the consumer.

..... I am still seething about the UGG boot decision.

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September 11, 2010 8:38:56 PM from Elemental Forums Elemental Forums

It's important to keep the ruling in perspective. The Ninth Circuit is one of the more corporate intellectual property rights-friendly courts in the country and might not be representative of, say, the views on the Supreme Court. There will probably be an appeal.

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September 12, 2010 11:58:54 PM from WinCustomize Forums WinCustomize Forums

..... I am still seething about the UGG boot decision.

The US were told to go screw themselves over that one.  The 'owners' of the name can legally be totally ignored in the place of origin of the product.  WE [Australia] coined the term 'Uggboot' as GENERIC and it was in free, legitimate use for half a CENTURY before the idiot distributor in the US decided to screw the US customers by trying to legitimize their switching to Chinese [crap] manufacture instead of continuing to use the original source.

It all got quite absurd when they wanted Oz to amend all their Dictionaries to make reference to the US 'owner' of the Trademark.

It REALLY should NOT have been registerable....as it would be the same as Jobs Trademarking 'Apple' and then telling the rest of the world you now have to call those round green things 'bananas'. [and he didn't 'quite' do that]

Now the Americans have to put up with poor quality, overpriced Uggboots.

Their loss.....I hope the US 'manufacturer' goes bust....US tourists to Oz can always get the 'real thing'....

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September 13, 2010 12:40:15 AM from GalCiv II Forums GalCiv II Forums

Nothing is settled when a bought and broken legal system makes a decision. Simply ignore them. If you want to enforce a contract, present it to me before purchase(actually done by some now with DD systems and i except those) otherwise I take it as a clean purchase and will do everything in my power to use, sell, mangle and whatever the hell I want with said product.

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September 13, 2010 2:02:57 AM from Demigod Forums Demigod Forums

Quoting Philly0381,
WhiteElk the customer who buys any product or service still is repsonsible to know and understand what they are entering into with the purchase.  If it's not clear to you then you need to ask questions before hand, in this day and age that would mean doing some research of the product or service online.  Yes it is time consuming.

Is that why McDonald's coffee cups don't say "caution! Content is hot!  Hot things burn you!  Getting burned is bad!" ?  Oh wait, they do.. even though everyone should know coffee is hot.. and hot things burn you.. and getting burned is painful.  Or if they didn't.. they surely could have researched it.  But that's simply not expected in this day and age.  It's why car manuals say "cruise control is NOT auto pilot" and explain it further.  

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September 13, 2010 2:23:19 AM from Sins of a Solar Empire Forums Sins of a Solar Empire Forums

No, that's insane.  The morons that do things like ironing clothes they're wearing just need to be forcibly sterilized for the sake of humanity.  It's something anyone that deserves the oxygen they're consuming should be capable of figuring out on their own.  Reading ten pages of legal jargon and consulting a book case filled with case law reference materials to find out what your video game will allow you to do with it is batshit insane for the opposite reason.  Even merchants can't be held to non standardized licensing agreements under contract law, consumers have always been immune to it regardless unless it's presented at the point of sale.

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