Linked by Thom Holwerda on Fri 10th Sep 2010 23:38 UTC
Legal EULAs, and whatever nonsense they may contain, are legally binding in the US. Have a great weekend!
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The judge is an idiot
by JLF65 on Sat 11th Sep 2010 00:21 UTC
JLF65
Member since:
2005-07-06

Because Vernor did not purchase the Release 14 copies from an owner, he may not invoke the first sale doctrine, and he also may not assert an essential step defense on behalf of his customers.


Right here, the judge pretty much confirmed his lack of intelligence. You can see what he's saying: the architectural firm bought the software, so THEY had first sale protection, but Vernor didn't. However, what IS the First Sale Doctrine in the first place?

This means that the copyright holder's rights to control the change of ownership of a particular copy ends once that copy is sold, as long as no additional copies are made. This doctrine is also referred to as the "right of first sale," "first sale rule," or "exhaustion rule."


Okay, so if the rights END at the FIRST SALE, how can they then skip around to the SECOND SALE and start back up again? The judge CLEARLY just lost his mind... or was paid off.

Reply Score: 7

RE: The judge is an idiot
by EricCFlem72 on Sat 11th Sep 2010 00:51 in reply to "The judge is an idiot"
EricCFlem72 Member since:
2008-04-14

I would guess the argument would be that the copy was never actually sold; it was licensed. In fact, the judge seemed to jump through quite a few weird hoops to "prove" that. And since it was licensed, not sold, there is no right of first sale (because something that's licensed isn't sold), and if there's no right of first sale, then what's in the EULA doesn't contradict it. I don't agree, but I'd guess that's the argument.

Also, as someone else pointed out, this is the 9th Circuit... they get overturned a lot. Although so does every other Circuit Court (the Supreme Court doesn't tend to take on too many cases it feels were judged correctly, so more than 3/4 of all cases the Supreme Court takes on end up overturning Circuit Court decisions), but the 9th Circuit decisions just seem to be a bit crazy at times.

Reply Parent Score: 2

RE: The judge is an idiot
by butters on Sun 12th Sep 2010 10:40 in reply to "The judge is an idiot"
butters Member since:
2005-07-08

Well, AutoDesk clearly sold something. In the court's view, apparently, they sold a license rather than a copyrighted work.

In other words, it seems that the court is inventing a new kind of intellectual property right that expands and largely obsoletes copyright.

In this new interpretation, the use of software is governed by a license of more or less unlimited authority, where "use" is defined to include redistribution as previously governed by copyright.

EULA is the new copyright, this license is what you are buying when you procure software, and purchasing the license implies consent.

The license can be any otherwise legal contract, and the U.S. Congress is extremely disinclined to intervene in the terms of private contracts.

This is a creative end-run around the legal framework and judicial precedents of copyright. Copyright is irrelevant, because now we're exchanging licenses rather than works.

Reply Parent Score: 4

RE[2]: The judge is an idiot
by Neolander on Sun 12th Sep 2010 14:18 in reply to "RE: The judge is an idiot"
Neolander Member since:
2010-03-08

Well, AutoDesk clearly sold something. In the court's view, apparently, they sold a license rather than a copyrighted work.

In other words, it seems that the court is inventing a new kind of intellectual property right that expands and largely obsoletes copyright.

In this new interpretation, the use of software is governed by a license of more or less unlimited authority, where "use" is defined to include redistribution as previously governed by copyright.

EULA is the new copyright, this license is what you are buying when you procure software, and purchasing the license implies consent.

The license can be any otherwise legal contract, and the U.S. Congress is extremely disinclined to intervene in the terms of private contracts.

This is a creative end-run around the legal framework and judicial precedents of copyright. Copyright is irrelevant, because now we're exchanging licenses rather than works.

Then we should sign the license agreement when we buy the software, and not anywhere after, like any other service agreement, as Thom pointed out.

Edited 2010-09-12 14:18 UTC

Reply Parent Score: 2

RE[2]: The judge is an idiot
by TheGZeus on Sun 12th Sep 2010 14:37 in reply to "RE: The judge is an idiot"
TheGZeus Member since:
2010-05-19