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If you want to learn about a really interesting aspect of the "first sale doctrine" and how it applies to software, you should have a look at "Vernor vs Autodes

If you want to learn about a really interesting aspect of the "first sale doctrine" and how it applies to software, you should have a look at "Vernor vs Autodesk" in the USA and compare it to "Oracle vs UsedSoft" in the EU. Basically, in the USA the courts determined that if a company sells you software, but in their terms & conditions claim that they are merely granting you a license, then you can't resell the software b/c you aren't considered to own it. In the EU however, if a company sells you a permanent life-time license in exchange for a one-time fee, the courts determined that you aren't merely licensing that software, you own it and you are allowed to resell it. I think these different rulings haven't been fully appreciated yet. For example, if you buy Apple's Final Cut X for $299, you should be allowed to resell that software if you live in the EU, but there is currently no way to transfer licenses between users, preventing users from reselling it. It seems to me that by preventing users from reselling their software, Apple (and the Google Play Store) are probably violating EU law on this matter.

joshuak 9y ago
That sounds a little better than the ridiculous Autodesk decision, however it sounds trivial to circumvent by simply putting a 'term of license' clause in the EULA. I'd go so far as to say I don't think EULAs should be considered a valid legal instrument.
- chmod775 9y ago
  In the EU it is impossible for normal consumers to sign away most rights intended to protect the consumer. Misleading the consumer in any way about that can even end in fines.
- phkahler 9y ago
  >> I'd go so far as to say I don't think EULAs should be considered a valid legal instrument. Agreed. The EULA is not even mentioned at the point of sale. Most notably, the company that sold the software often has no idea who has entered into such an (alleged) agreement with them. I thought acknowledgement was a critical part of contract law, but somehow clicking a virtual button in private is claimed to qualify.
  - awinter-py 9y ago
    contract-wise it seems from case law they're on pretty steady ground. Of consideration + capacity + intent, capacity is probably the trickiest when you're not in person with the counterparty. I think the more interesting angle of attack is by calling this a contract of adhesion, i.e. saying that the vendor is using their superior market position to force a long and disadvantageous contract on customers. At the point where EULA was being invoked for many or most buyers, you could probably file a class action claiming the product was falsely advertised (i.e. it costs not $9.99 but $9.99 plus 100 hours of legal fees). The uniform code of commerce is very concerned about terms hidden in long contracts, which is the reason some parts of long EULAs are in caps.
    - phkahler 9y ago
      What if I say aloud "No, I do not agree to the terms of this EULA, but I'm going to click this button in order to install the software anyway." How about that? You may say "but clicking the button indicates agreement" to which I say it does not unless I actually agree to the terms of the EULA. The EULA is the only thing defining the meaning of clicking the button... Lets suppose a techo-archeologist in 2100 finds an old PC and some MS windows install disks. Wow! he says, I've found a major artifact from a hundred years ago in the heyday of the internet! He gets it to power up and loads the disks in. He finds the EULA and takes pictures and uses OCR software to document his findings and then says "Huh, I wonder how anyone would ever read all that or agree to it, I sure don't agree with it, but I've got my research to do." And he clicks "I agree". Did he just enter into a contract? With whom? Suppose Microsoft went under completely in 2075. How does this clicking a button equate to him entering a contract? It seems incredibly absurd to me.
      - arcbyte 9y ago
        It depends. Law is generally meant to be "reasonable" and much depends on the particular facts.
      - labster 9y ago
        He'd enter into a contract with whoever bought Microsoft's IP, presumably OracleApple or Teslabet. Old corporations never die, they just fade away.
- EpicEng 9y ago
  My uneducated opinion is that it wouldn't matter, in the same way that you cannot sign away your right to warranty in the EU.
- moomin 9y ago
  Shouldn't be, but most definitely are as a matter of settled law in the US. :(
  - pbhjpbhj 9y ago
    This is a good test of democracy surely. What proportion of the population want EULAs, want not to own stuff they bought? Yet the USA as a supposed democracy has laws that contradicts that position with arguably no benefit to society.
- doikor 9y ago
  EULAs in EU are a joke. A "normal" consumer cannot even sign away most of the consumer protection rights even if he wants to.
  - jakc 9y ago
    A funny joke, like, do they make EUlaugh?
- Tuna-Fish 9y ago
  In the EU, that doesn't work. Specifically because none of the conditions of the EULA apply to the sale unless you were presented it before you paid for the product. If it's possible to purchase the product in such a manner where you are not presented the EULA before you bought it, you can ignore a lot of it's conditions.
  - vixen99 9y ago
    its conditions
  - codedokode 9y ago
    If a seller wants to impose some conditions of course he should do so before selling his product rather than try to deceive a customer after purchase. Only a dishonest seller would do such a thing.
    - pbhjpbhj 9y ago
      IMO any company that is using words like buy, sell, sale, purchase, get, of a product and not specifying they are selling only a _license agreement_ are committing a heinous fraud and should be fined no less than a years median profit (or, let's say, 5% of revenue as an underpin). Sure, advertise "get license to use Wandows for a limited period, further restrictions on use apply" but if you say "get Wandows for $100" then you sold it and no EULA or other additional restrictions can apply; and no, small-print doesn't count.
  - brlewis 9y ago
    U.S. statute is supposedly the same. A valid contract involves consideration from both parties. After you've bought something the contract is set. One party can't subsequently say, "oh in addition you have to agree to this." Unfortunately law isn't what got written into statute or precedent yesterday. Law is what happens to you in court today.
    - kevin_b_er 9y ago
      Please stop talking about "valid contract" or "consideration" here. The EULA almost certainly contains a provision on mandatory binding arbitration. The validity of the contract may be ignored. Under "BUCKEYE CHECK CASHING, INC. v. JOHN CARDEGNA, ET AL." and "Rent-A-Center West v. Jackson" mandatory binding arbitration overrides a challenge to the validity of the contract. The arbiter will decide if the contract is valid. Under "Hall Street Associates, L.L.C. v. Mattel, Inc." the arbiters "manifest disregard of the law" is not enough to overturn an arbitration award against you. So, no, a valid contract is not required, so long as an otherwise invalid contract contains an mandatory arbitration provision, the "contract" will be decoded by mandatory binding arbitration. If you are a human vs a corporation, your win rate is 0.2% in the national arbitration forum. A purchase is not required to be locked into a mandatory binding arbitration agreement, because a whether you'd made a purchase would be part of the validity of the contract.
- kevin_b_er 9y ago
  A surprise contract that most don't pay attention to and severely limits the rights of the target human is an American standard.
- zurn 9y ago
  Also in most business contexts employees have no right to sign contracts on behalf of their employer.
awinter-py 9y ago
Are european secondhand copies resellable in the US?
- ohyes 9y ago
  And if they are, once I've bought the EU copy in the us, can i resell it again?
- dsr_ 9y ago
  Probably. In general, the first sale doctrine applies to copyrighted works that exist on a physical medium. https://en.wikipedia.org/wiki/First-sale_doctrine https://en.wikipedia.org/wiki/First-sale_doctrine
fulafel 9y ago
It does not work like this in the EU. Most EU countries don't have a case law based ("common law") system, for starters.
- tom_mellior 9y ago
  It's true that the EU is not ruled by common law. It does not follow that rulings by the Court of Justice have no effect. The ECJ interprets the laws as written, and in this particular case it decided that software can be resold. That is the status quo in the EU until (a) EU institutions change the law, or (b) the ECJ decides to revisit this and comes to a different decision. Here's the ruling: http://curia.europa.eu/juris/document/document.jsf?docid=124564&doclang=en http://curia.europa.eu/juris/document/document.jsf?docid=124...
exelius 9y ago
I think that this distinction is largely becoming irrelevant in the cloud era. Most software is sold / licensed on a term basis these days, and honestly the industry is healthier as a result. App stores are really the only remaining vestige of "buy once, use forever" -- and I'd guess that the EU isn't interested in going after it thanks to the small dollar amount and huge number of companies who benefit. Software was never truly a "product" in the same way that physical goods are -- it was always a service thanks to the maintenance and continued investment required. It may have been better for the consumer in the short term to "buy" software, but a subscription model allows for more predictable cash flows to the developer of the software (which keeps software vendors in business -- and their software supported).
- woofyman 9y ago
  As a consumer, I will never purchase subscription software. If a new version has a feature I need or because of OS upgrade, I'll purchase the new version or an upgrade if offered.
  - mark-r 9y ago
    The physical goods model for software is much more consumer friendly. You don't need every single upgrade, you can choose how much to spend on an ongoing basis. If an "upgrade" is less suitable for you than the original, you can skip it or look for a substitute. It's scary to contemplate a world where the software you rely on every day can change out from under you without your control or even knowledge. See the animosity aimed at Windows 10 updates.
    - khedoros1 9y ago
      We're in that world, to a large degree. By default, phone apps auto-update. OSes auto-update. Websites arbitrarily change behavior, as suits their owners. All but the last can be disabled (mostly), but it's still a pain.
- taeric 9y ago
  The industry is healthier as a result? I question that rather strong claim. Consider as a counter point, I can still pull up cartridge based games on my old consoles and they work. Rather well, actually. Now, that does speak only to the "health" of the software I run. It also ignores the implications of this world we are in where everything is fully connected to the internet. To your point of healthier for the developers. Do you have numbers to back that up? Certainly gave companies a more reliable cash flow that are licensing software. But... conversely, this gave consumers a burden in the form of constant cash flow out.
nhsoe9aoeu 9y ago
FCPX doesn't work that way. If you purchased it on its release date 5 years ago, you essentially bought a subscription of free updates that continue through today. Many of these have been major releases with major new functionality, not just minor bug fix updates. This is very different from the old system of buying something like Word (or FCP 7) in a box, getting a few minor updates to fix bugs, and when the new major version came out, you had to pay at least an upgrade fee, if not full price.
- touchofevil 9y ago
  It's not a question of whether FCPX is a good value. If an EU citizen pays a one-time fee for a lifetime license of FCPX they are supposed to be able to resell that software according to the Oracle vs UsedSoft ruling. Apple has not built a mechanism into their App Store to allow users to transfer licenses to one another, which means they are not complying with the EU ruling. This applies to every software product in their store (and Google's Play Store) that is bought for a one-time fee in exchange for a lifetime license in the EU.
  - nhsoe9aoeu 9y ago
    It doesn't appear to me that EU citizens are paying a one-time fee for a lifetime license. It appears to me (though I'm no lawyer) that they are paying a one-time fee for a subscription. I don't know whether it's time-limited or lifetime, but it is a distinction with an actual difference, and may affect how EU law regards it.
    - touchofevil 9y ago
      The whole "lifetime license in exchange for a one-time fee" idea in the Oracle vs UsedSoft case comes from that case trying to determine what "ownership" means in regards to digital products. In Autodesk vs Vernor, Autodesk was claiming that if you paid $3,000 for license of Autocad, you don't actually own that software you are just "licensing" it and thus the first sale doctrine doesn't apply, so the customer can't resell the Autocad product they bought, even though the customer paid a one-time fee for a product they "own" for life (this was before Autodesk moved to a subscription model). Autodesk claimed this b/c they included in their EULA that the customer was merely licensing their product and didn't "own" it. The US supreme court eventually agreed with Autodesk. In the Oracle vs UsedSoft case, the EU court was taking on this question of what does it mean to "own" a digital product vs "licensing" a digital product. That court came to the conclusion that if you paid a one-time fee for a lifetime license of a digital product then you own that product (no matter what the EULA says) and the first sale doctrine applies, which gives you the right to resell it. On the other hand, if you were paying a fee that only gives you access for a set amount of time (a subscription), then you would just be renting (or "licensing") that product for a certain amount of time and thus wouldn't own it, which means you can't resell that product because it isn't covered by the first sale doctrine. A subscription expires and would need to be renewed. Your license for FCPX never expires. Since you paid a one-time fee for a license of FCPX that never expires (a lifetime license) your copy of FCPX would be covered Oracle vs UsedSoft in the EU and you could resell it. Paying a one-time fee for something is not a subscription. If you buy a car with cash, you own that car. You can own/use that car for the rest of your life or you can resell that car. If you lease a car you have a subscription that you must renew to keep using that car and you do not have the right to resell that car. That is basically how the Oracle vs UsedSoft sees software products in the EU.
adrianmonk 9y ago
Most mobile apps have moved to a model with in-app purchases. I wonder if this rule applies there. If a game is free, but I spend $1.99 on 500 gold coins (in-game currency), does the law require that I be able to sell the gold coins? What about if I use them to buy virtual non-consumable items (like permanent character upgrades)? I assume the law wouldn't apply to consumable items (like spending 50 gold coins to speed up the construction of a building) because it doesn't result in any in-game item I own.
- touchofevil 9y ago
  I'm also curious about reselling in-app purchases. The Oracle vs UsedSoft ruling only applied to "software" as I recall. I think if you had paid for in-app purchases to unlock premium features of a product there could be a case to made that you should be able to resell that free app with the features you paid to unlock. As far as reselling unused in-game currency like gold coins that speed up construction of a building, I personally think it would be cool to see a secondary market pop up. However, I don't know if that would be covered by UsedSoft v Oracle. The big question is whether individual Steam games should be able to be resold in the EU due to Oracle vs UsedSoft. If so, that's a potential multi-billion dollar secondary market that doesn't exist yet. Edit: Sidenote, I actually started an auction site based on the idea of reselling Steam games (and ios games) several years ago based on the UsedSoft v Oracle ruling but due to these companies not allowing users to transfer licenses between each other, my startup was not workable.
- chias 9y ago
  Generally speaking, this would be a very poor result (from the perspective of said game owners). Pretty much all of us would have our credit card processing contracts revoked, because in all "regular" contracts (e.g. Stripe, Braintree, etc. etc.) you may not use their service to sell goods which can be "readily resold for cash". If that was the legal result, these applications would probably need to stop accepting EU credit cards.
  - pmontra 9y ago
    Italy here. Many owners of small shops and small restaurants go to supermarkets to buy stuff they resell because sometimes their dealers don't deliver all they need or not often enough: being small put those shops to the end of the list. I wonder if the contracts are the same here or if processors just don't want to know because they still make money twice from any of those sales.
algesten 9y ago
I do hope EU gets on top of Apple/Google/Netflix/HBO/etc soon. It's supposed to be One Market, yet these all impose territory restrictions where content in Spain is not necessarily available in France and vice versa.
- azernik 9y ago
  They're working on it: https://en.wikipedia.org/wiki/Digital_Single_Market https://en.wikipedia.org/wiki/Digital_Single_Market Note that the issue is rulemaking, not enforcement. The Single Market is a statement of principle, not a legally-applicable regulation, and needs specific rules to be made to put it into effect in different markets.
  - bdhess 9y ago
    I would also add that the original intent was to remove government-imposed barriers to trade between the members (elimination of duties, regulation, etc). Whereas the unavailability of certain content based on location is almost certainly the result of a contractual arrangement between content makers and distributors rather than a government-imposed limit.
    - azernik 9y ago
      The scope of the Single Market is broader than that - it includes standardization of weights and measures, standardization of product names, etc. - rules that apply to private companies, and are meant to break down extra-legal obstacles to trade.
      - bdhess 9y ago
        > The scope of the Single Market is broader than that - it includes standardization of weights and measures, standardization of product names, etc Well historically individual states had their own regulations regarding weights/measures and product names, and that authority was transferred to the new market when it was created. These types of regulations ensure a level playing field between buyers and sellers, and are an important function of any regulated market. You know what you're getting when you buy a 750 mL bottle of Chateauneuf. It doesn't necessarily follow that the maker of the Chateauneuf ought to be required to distribute it in a particular geographic territory.
derefr 9y ago
What does the European ruling imply for services like Steam, that will sell you a game license-key, but in a way where that key is bound to your particular Steam account? Does it force such keys to be transferrable in Europe? Or force the licensing server to have a "transfer of ownership" API such that it will revoke one key and generate another for the new owner?
- eveningcoffee 9y ago
  In principle it could. It depends on how much of this is followed by governments or interested third parties (through courts). For example many countries started to require that mobile phone numbers should be transferable between carriers and mandated the carriers to build an infrastructure for this.
- touchofevil 9y ago
  I think that this is the big question! I actually started an auction site based on allowing EU users to resell their Steam games (and ios/google play apps) b/c I think due to the Oracle v UsedSoft ruling Steam users should be able to resell their Steam game keys. However, b/c there is no mechanism to transfer keys (or ios apps) between users, there wasn't much my startup could do. There was an attempt in Germany to sue Steam to allow users to resell their entire Steam account(1). However, that effort failed. I think they should have pursued a case that focused on allowing Steam users to resell individual games. There may still be a court case that could be won that focuses on reselling the individual games keys between users. I think in the EU though there could be some debate about whether games are considered "software". Only software is covered by Oracle v UsedSoft as I recall. (1) https://theundisciplined.com/2014/03/20/losing-steam-is-usedsoft-v-oracle-actually-changing-the-video-game-industry/ https://theundisciplined.com/2014/03/20/losing-steam-is-used...
  - tzs 9y ago
    I think you may be reading too much into all of this. Oracle sued alleging copyright violation. The ECJ ruled that what UsedSoft was doing was not a copyright violation. Applying that to Steam, it would imply that if I sold someone my Steam key for a game I had purchased I would not be violating copyright. It does not necessarily imply that Steam has to make or allow the key to work for the buyer. That's out of scope for copyright law.
powertower 9y ago
> if you buy Apple's Final Cut X for $299, you should be allowed to resell that software If you do resell your "copy" of the software, does the EU law make the company accept new-user registrations/activations? Does it require them to also send out new updates to the non-original owner?
- touchofevil 9y ago
  I think for software companies to comply with the EU ruling they would need to have a mechanism for transferring registration keys from one user to another. After the original buyer transfers their key to a buyer on the secondary market, the original buyer would no longer have access to the software. It's been awhile since I read that Oracle v UsedSoft ruling, but I think that the new owner is entitled to whatever updates are offered. If they were paid updates, (like upgrading from v7 to v8 for $20) the new owner would still have to pay the upgrade fee, of course. But if they were free updates, then they would be free to new owner just as they would be to the original owner. From a software seller's perspective, I don't see the issue with this. If you sell one license of your software to a user, you have accepted that one user will consume one license of your software. If that license gets transferred to a different user then the original user has relinquished their license, which has resulted, still, in only one license getting consumed by one user. When you sold the software you committed to updating that one license of software that you sold, what does it matter who is using and getting the update for that single license? (Of course you don't have to give free updates to any users whether they bought your software on the secondary market or directly from the software developer.) If you look at ProTools, they actually let user transfer licenses between each other. The licenses are stored on an iLok and users can transfer keys between one another. It's great because users can sell used audio plugins for protools or the actual protools software itself to each other. https://www.ilok.com/#!home https://www.ilok.com/#!home
Teknoman117 9y ago
I came here to ask about things like this...
averagewall 9y ago
I would think you can sell a copy of the software but if it somehow doesn't work on the buyer's computer, that's too bad. Surely the law won't require software vendors to provide ongoing support to all future owners. Maybe you'd have to sell your whole computer and software together for it to keep working. Like if you buy an iPad with your name engraved on it, then when you sell it, the buyer will be stuck with your name still on it - Apple isn't obliged to re-engrave it with the new owner's name.
cm2187 9y ago
Software vendors often prevent you from transfering the license from an old PC to a new PC. I don't know what's the legal ground for that (outside of OEM product). For instance Microsoft will not let you activate an Office 2010 license anymore.
Cthulhu_ 9y ago
> It seems to me that by preventing users from reselling their software, Apple (and the Google Play Store) are probably violating EU law on this matter. No actually; the law says it's _allowed_ to resell software, but it doesn't say companies are _required_ to make software transferable. If they did make it mandatory, it'd be the end for digital-only software like the app stores, Steam, etc.
- DanBC 9y ago
  http://www.linklaters.com/Insights/Publication1403Newsletter/TMT-News-November-2012/Pages/EU-Used-Soft-Oracle-ECJ-approves-sale-used-software.aspx http://www.linklaters.com/Insights/Publication1403Newsletter... > On 3 July 2012, the ECJ handed down its landmark decision in UsedSoft GmbH v Oracle International Corp (C-128/11), ruling that the owner of copyright in software cannot prevent a perpetual licensee who has downloaded the software from the internet from selling his ‘used’ licence. This decision has significant implications for the software and other digital industries.

joshuak 9y ago

That sounds a little better than the ridiculous Autodesk decision, however it sounds trivial to circumvent by simply putting a 'term of license' clause in the EULA. I'd go so far as to say I don't think EULAs should be considered a valid legal instrument.

chmod775 9y ago
In the EU it is impossible for normal consumers to sign away most rights intended to protect the consumer. Misleading the consumer in any way about that can even end in fines.
phkahler 9y ago
>> I'd go so far as to say I don't think EULAs should be considered a valid legal instrument. Agreed. The EULA is not even mentioned at the point of sale. Most notably, the company that sold the software often has no idea who has entered into such an (alleged) agreement with them. I thought acknowledgement was a critical part of contract law, but somehow clicking a virtual button in private is claimed to qualify.
- awinter-py 9y ago
  contract-wise it seems from case law they're on pretty steady ground. Of consideration + capacity + intent, capacity is probably the trickiest when you're not in person with the counterparty. I think the more interesting angle of attack is by calling this a contract of adhesion, i.e. saying that the vendor is using their superior market position to force a long and disadvantageous contract on customers. At the point where EULA was being invoked for many or most buyers, you could probably file a class action claiming the product was falsely advertised (i.e. it costs not $9.99 but $9.99 plus 100 hours of legal fees). The uniform code of commerce is very concerned about terms hidden in long contracts, which is the reason some parts of long EULAs are in caps.
  - phkahler 9y ago
    What if I say aloud "No, I do not agree to the terms of this EULA, but I'm going to click this button in order to install the software anyway." How about that? You may say "but clicking the button indicates agreement" to which I say it does not unless I actually agree to the terms of the EULA. The EULA is the only thing defining the meaning of clicking the button... Lets suppose a techo-archeologist in 2100 finds an old PC and some MS windows install disks. Wow! he says, I've found a major artifact from a hundred years ago in the heyday of the internet! He gets it to power up and loads the disks in. He finds the EULA and takes pictures and uses OCR software to document his findings and then says "Huh, I wonder how anyone would ever read all that or agree to it, I sure don't agree with it, but I've got my research to do." And he clicks "I agree". Did he just enter into a contract? With whom? Suppose Microsoft went under completely in 2075. How does this clicking a button equate to him entering a contract? It seems incredibly absurd to me.
    - arcbyte 9y ago
      It depends. Law is generally meant to be "reasonable" and much depends on the particular facts.
    - labster 9y ago
      He'd enter into a contract with whoever bought Microsoft's IP, presumably OracleApple or Teslabet. Old corporations never die, they just fade away.
EpicEng 9y ago
My uneducated opinion is that it wouldn't matter, in the same way that you cannot sign away your right to warranty in the EU.
moomin 9y ago
Shouldn't be, but most definitely are as a matter of settled law in the US. :(
- pbhjpbhj 9y ago
  This is a good test of democracy surely. What proportion of the population want EULAs, want not to own stuff they bought? Yet the USA as a supposed democracy has laws that contradicts that position with arguably no benefit to society.
doikor 9y ago
EULAs in EU are a joke. A "normal" consumer cannot even sign away most of the consumer protection rights even if he wants to.
- jakc 9y ago
  A funny joke, like, do they make EUlaugh?
Tuna-Fish 9y ago
In the EU, that doesn't work. Specifically because none of the conditions of the EULA apply to the sale unless you were presented it before you paid for the product. If it's possible to purchase the product in such a manner where you are not presented the EULA before you bought it, you can ignore a lot of it's conditions.
- vixen99 9y ago
  its conditions
- codedokode 9y ago
  If a seller wants to impose some conditions of course he should do so before selling his product rather than try to deceive a customer after purchase. Only a dishonest seller would do such a thing.
  - pbhjpbhj 9y ago
    IMO any company that is using words like buy, sell, sale, purchase, get, of a product and not specifying they are selling only a _license agreement_ are committing a heinous fraud and should be fined no less than a years median profit (or, let's say, 5% of revenue as an underpin). Sure, advertise "get license to use Wandows for a limited period, further restrictions on use apply" but if you say "get Wandows for $100" then you sold it and no EULA or other additional restrictions can apply; and no, small-print doesn't count.
- brlewis 9y ago
  U.S. statute is supposedly the same. A valid contract involves consideration from both parties. After you've bought something the contract is set. One party can't subsequently say, "oh in addition you have to agree to this." Unfortunately law isn't what got written into statute or precedent yesterday. Law is what happens to you in court today.
  - kevin_b_er 9y ago
    Please stop talking about "valid contract" or "consideration" here. The EULA almost certainly contains a provision on mandatory binding arbitration. The validity of the contract may be ignored. Under "BUCKEYE CHECK CASHING, INC. v. JOHN CARDEGNA, ET AL." and "Rent-A-Center West v. Jackson" mandatory binding arbitration overrides a challenge to the validity of the contract. The arbiter will decide if the contract is valid. Under "Hall Street Associates, L.L.C. v. Mattel, Inc." the arbiters "manifest disregard of the law" is not enough to overturn an arbitration award against you. So, no, a valid contract is not required, so long as an otherwise invalid contract contains an mandatory arbitration provision, the "contract" will be decoded by mandatory binding arbitration. If you are a human vs a corporation, your win rate is 0.2% in the national arbitration forum. A purchase is not required to be locked into a mandatory binding arbitration agreement, because a whether you'd made a purchase would be part of the validity of the contract.
kevin_b_er 9y ago
A surprise contract that most don't pay attention to and severely limits the rights of the target human is an American standard.
zurn 9y ago
Also in most business contexts employees have no right to sign contracts on behalf of their employer.

awinter-py 9y ago

Are european secondhand copies resellable in the US?

ohyes 9y ago
And if they are, once I've bought the EU copy in the us, can i resell it again?
dsr_ 9y ago
Probably. In general, the first sale doctrine applies to copyrighted works that exist on a physical medium. https://en.wikipedia.org/wiki/First-sale_doctrine https://en.wikipedia.org/wiki/First-sale_doctrine

fulafel 9y ago

It does not work like this in the EU. Most EU countries don't have a case law based ("common law") system, for starters.

tom_mellior 9y ago
It's true that the EU is not ruled by common law. It does not follow that rulings by the Court of Justice have no effect. The ECJ interprets the laws as written, and in this particular case it decided that software can be resold. That is the status quo in the EU until (a) EU institutions change the law, or (b) the ECJ decides to revisit this and comes to a different decision. Here's the ruling: http://curia.europa.eu/juris/document/document.jsf?docid=124564&doclang=en http://curia.europa.eu/juris/document/document.jsf?docid=124...

exelius 9y ago

I think that this distinction is largely becoming irrelevant in the cloud era. Most software is sold / licensed on a term basis these days, and honestly the industry is healthier as a result. App stores are really the only remaining vestige of "buy once, use forever" -- and I'd guess that the EU isn't interested in going after it thanks to the small dollar amount and huge number of companies who benefit. Software was never truly a "product" in the same way that physical goods are -- it was always a service thanks to the maintenance and continued investment required. It may have been better for the consumer in the short term to "buy" software, but a subscription model allows for more predictable cash flows to the developer of the software (which keeps software vendors in business -- and their software supported).

woofyman 9y ago
As a consumer, I will never purchase subscription software. If a new version has a feature I need or because of OS upgrade, I'll purchase the new version or an upgrade if offered.
- mark-r 9y ago
  The physical goods model for software is much more consumer friendly. You don't need every single upgrade, you can choose how much to spend on an ongoing basis. If an "upgrade" is less suitable for you than the original, you can skip it or look for a substitute. It's scary to contemplate a world where the software you rely on every day can change out from under you without your control or even knowledge. See the animosity aimed at Windows 10 updates.
  - khedoros1 9y ago
    We're in that world, to a large degree. By default, phone apps auto-update. OSes auto-update. Websites arbitrarily change behavior, as suits their owners. All but the last can be disabled (mostly), but it's still a pain.
taeric 9y ago
The industry is healthier as a result? I question that rather strong claim. Consider as a counter point, I can still pull up cartridge based games on my old consoles and they work. Rather well, actually. Now, that does speak only to the "health" of the software I run. It also ignores the implications of this world we are in where everything is fully connected to the internet. To your point of healthier for the developers. Do you have numbers to back that up? Certainly gave companies a more reliable cash flow that are licensing software. But... conversely, this gave consumers a burden in the form of constant cash flow out.

nhsoe9aoeu 9y ago

FCPX doesn't work that way. If you purchased it on its release date 5 years ago, you essentially bought a subscription of free updates that continue through today. Many of these have been major releases with major new functionality, not just minor bug fix updates. This is very different from the old system of buying something like Word (or FCP 7) in a box, getting a few minor updates to fix bugs, and when the new major version came out, you had to pay at least an upgrade fee, if not full price.

touchofevil 9y ago
It's not a question of whether FCPX is a good value. If an EU citizen pays a one-time fee for a lifetime license of FCPX they are supposed to be able to resell that software according to the Oracle vs UsedSoft ruling. Apple has not built a mechanism into their App Store to allow users to transfer licenses to one another, which means they are not complying with the EU ruling. This applies to every software product in their store (and Google's Play Store) that is bought for a one-time fee in exchange for a lifetime license in the EU.
- nhsoe9aoeu 9y ago
  It doesn't appear to me that EU citizens are paying a one-time fee for a lifetime license. It appears to me (though I'm no lawyer) that they are paying a one-time fee for a subscription. I don't know whether it's time-limited or lifetime, but it is a distinction with an actual difference, and may affect how EU law regards it.
  - touchofevil 9y ago
    The whole "lifetime license in exchange for a one-time fee" idea in the Oracle vs UsedSoft case comes from that case trying to determine what "ownership" means in regards to digital products. In Autodesk vs Vernor, Autodesk was claiming that if you paid $3,000 for license of Autocad, you don't actually own that software you are just "licensing" it and thus the first sale doctrine doesn't apply, so the customer can't resell the Autocad product they bought, even though the customer paid a one-time fee for a product they "own" for life (this was before Autodesk moved to a subscription model). Autodesk claimed this b/c they included in their EULA that the customer was merely licensing their product and didn't "own" it. The US supreme court eventually agreed with Autodesk. In the Oracle vs UsedSoft case, the EU court was taking on this question of what does it mean to "own" a digital product vs "licensing" a digital product. That court came to the conclusion that if you paid a one-time fee for a lifetime license of a digital product then you own that product (no matter what the EULA says) and the first sale doctrine applies, which gives you the right to resell it. On the other hand, if you were paying a fee that only gives you access for a set amount of time (a subscription), then you would just be renting (or "licensing") that product for a certain amount of time and thus wouldn't own it, which means you can't resell that product because it isn't covered by the first sale doctrine. A subscription expires and would need to be renewed. Your license for FCPX never expires. Since you paid a one-time fee for a license of FCPX that never expires (a lifetime license) your copy of FCPX would be covered Oracle vs UsedSoft in the EU and you could resell it. Paying a one-time fee for something is not a subscription. If you buy a car with cash, you own that car. You can own/use that car for the rest of your life or you can resell that car. If you lease a car you have a subscription that you must renew to keep using that car and you do not have the right to resell that car. That is basically how the Oracle vs UsedSoft sees software products in the EU.

adrianmonk 9y ago

Most mobile apps have moved to a model with in-app purchases. I wonder if this rule applies there. If a game is free, but I spend $1.99 on 500 gold coins (in-game currency), does the law require that I be able to sell the gold coins? What about if I use them to buy virtual non-consumable items (like permanent character upgrades)? I assume the law wouldn't apply to consumable items (like spending 50 gold coins to speed up the construction of a building) because it doesn't result in any in-game item I own.

touchofevil 9y ago
I'm also curious about reselling in-app purchases. The Oracle vs UsedSoft ruling only applied to "software" as I recall. I think if you had paid for in-app purchases to unlock premium features of a product there could be a case to made that you should be able to resell that free app with the features you paid to unlock. As far as reselling unused in-game currency like gold coins that speed up construction of a building, I personally think it would be cool to see a secondary market pop up. However, I don't know if that would be covered by UsedSoft v Oracle. The big question is whether individual Steam games should be able to be resold in the EU due to Oracle vs UsedSoft. If so, that's a potential multi-billion dollar secondary market that doesn't exist yet. Edit: Sidenote, I actually started an auction site based on the idea of reselling Steam games (and ios games) several years ago based on the UsedSoft v Oracle ruling but due to these companies not allowing users to transfer licenses between each other, my startup was not workable.
chias 9y ago
Generally speaking, this would be a very poor result (from the perspective of said game owners). Pretty much all of us would have our credit card processing contracts revoked, because in all "regular" contracts (e.g. Stripe, Braintree, etc. etc.) you may not use their service to sell goods which can be "readily resold for cash". If that was the legal result, these applications would probably need to stop accepting EU credit cards.
- pmontra 9y ago
  Italy here. Many owners of small shops and small restaurants go to supermarkets to buy stuff they resell because sometimes their dealers don't deliver all they need or not often enough: being small put those shops to the end of the list. I wonder if the contracts are the same here or if processors just don't want to know because they still make money twice from any of those sales.

algesten 9y ago

I do hope EU gets on top of Apple/Google/Netflix/HBO/etc soon. It's supposed to be One Market, yet these all impose territory restrictions where content in Spain is not necessarily available in France and vice versa.

azernik 9y ago
They're working on it: https://en.wikipedia.org/wiki/Digital_Single_Market https://en.wikipedia.org/wiki/Digital_Single_Market Note that the issue is rulemaking, not enforcement. The Single Market is a statement of principle, not a legally-applicable regulation, and needs specific rules to be made to put it into effect in different markets.
- bdhess 9y ago
  I would also add that the original intent was to remove government-imposed barriers to trade between the members (elimination of duties, regulation, etc). Whereas the unavailability of certain content based on location is almost certainly the result of a contractual arrangement between content makers and distributors rather than a government-imposed limit.
  - azernik 9y ago
    The scope of the Single Market is broader than that - it includes standardization of weights and measures, standardization of product names, etc. - rules that apply to private companies, and are meant to break down extra-legal obstacles to trade.
    - bdhess 9y ago
      > The scope of the Single Market is broader than that - it includes standardization of weights and measures, standardization of product names, etc Well historically individual states had their own regulations regarding weights/measures and product names, and that authority was transferred to the new market when it was created. These types of regulations ensure a level playing field between buyers and sellers, and are an important function of any regulated market. You know what you're getting when you buy a 750 mL bottle of Chateauneuf. It doesn't necessarily follow that the maker of the Chateauneuf ought to be required to distribute it in a particular geographic territory.

derefr 9y ago

What does the European ruling imply for services like Steam, that will sell you a game license-key, but in a way where that key is bound to your particular Steam account? Does it force such keys to be transferrable in Europe? Or force the licensing server to have a "transfer of ownership" API such that it will revoke one key and generate another for the new owner?

eveningcoffee 9y ago
In principle it could. It depends on how much of this is followed by governments or interested third parties (through courts). For example many countries started to require that mobile phone numbers should be transferable between carriers and mandated the carriers to build an infrastructure for this.
touchofevil 9y ago
I think that this is the big question! I actually started an auction site based on allowing EU users to resell their Steam games (and ios/google play apps) b/c I think due to the Oracle v UsedSoft ruling Steam users should be able to resell their Steam game keys. However, b/c there is no mechanism to transfer keys (or ios apps) between users, there wasn't much my startup could do. There was an attempt in Germany to sue Steam to allow users to resell their entire Steam account(1). However, that effort failed. I think they should have pursued a case that focused on allowing Steam users to resell individual games. There may still be a court case that could be won that focuses on reselling the individual games keys between users. I think in the EU though there could be some debate about whether games are considered "software". Only software is covered by Oracle v UsedSoft as I recall. (1) https://theundisciplined.com/2014/03/20/losing-steam-is-usedsoft-v-oracle-actually-changing-the-video-game-industry/ https://theundisciplined.com/2014/03/20/losing-steam-is-used...
- tzs 9y ago
  I think you may be reading too much into all of this. Oracle sued alleging copyright violation. The ECJ ruled that what UsedSoft was doing was not a copyright violation. Applying that to Steam, it would imply that if I sold someone my Steam key for a game I had purchased I would not be violating copyright. It does not necessarily imply that Steam has to make or allow the key to work for the buyer. That's out of scope for copyright law.

powertower 9y ago

> if you buy Apple's Final Cut X for $299, you should be allowed to resell that software If you do resell your "copy" of the software, does the EU law make the company accept new-user registrations/activations? Does it require them to also send out new updates to the non-original owner?

touchofevil 9y ago
I think for software companies to comply with the EU ruling they would need to have a mechanism for transferring registration keys from one user to another. After the original buyer transfers their key to a buyer on the secondary market, the original buyer would no longer have access to the software. It's been awhile since I read that Oracle v UsedSoft ruling, but I think that the new owner is entitled to whatever updates are offered. If they were paid updates, (like upgrading from v7 to v8 for $20) the new owner would still have to pay the upgrade fee, of course. But if they were free updates, then they would be free to new owner just as they would be to the original owner. From a software seller's perspective, I don't see the issue with this. If you sell one license of your software to a user, you have accepted that one user will consume one license of your software. If that license gets transferred to a different user then the original user has relinquished their license, which has resulted, still, in only one license getting consumed by one user. When you sold the software you committed to updating that one license of software that you sold, what does it matter who is using and getting the update for that single license? (Of course you don't have to give free updates to any users whether they bought your software on the secondary market or directly from the software developer.) If you look at ProTools, they actually let user transfer licenses between each other. The licenses are stored on an iLok and users can transfer keys between one another. It's great because users can sell used audio plugins for protools or the actual protools software itself to each other. https://www.ilok.com/#!home https://www.ilok.com/#!home

Teknoman117 9y ago

I came here to ask about things like this...

averagewall 9y ago

I would think you can sell a copy of the software but if it somehow doesn't work on the buyer's computer, that's too bad. Surely the law won't require software vendors to provide ongoing support to all future owners. Maybe you'd have to sell your whole computer and software together for it to keep working. Like if you buy an iPad with your name engraved on it, then when you sell it, the buyer will be stuck with your name still on it - Apple isn't obliged to re-engrave it with the new owner's name.

cm2187 9y ago

Software vendors often prevent you from transfering the license from an old PC to a new PC. I don't know what's the legal ground for that (outside of OEM product). For instance Microsoft will not let you activate an Office 2010 license anymore.

Cthulhu_ 9y ago

> It seems to me that by preventing users from reselling their software, Apple (and the Google Play Store) are probably violating EU law on this matter. No actually; the law says it's _allowed_ to resell software, but it doesn't say companies are _required_ to make software transferable. If they did make it mandatory, it'd be the end for digital-only software like the app stores, Steam, etc.

DanBC 9y ago
http://www.linklaters.com/Insights/Publication1403Newsletter/TMT-News-November-2012/Pages/EU-Used-Soft-Oracle-ECJ-approves-sale-used-software.aspx http://www.linklaters.com/Insights/Publication1403Newsletter... > On 3 July 2012, the ECJ handed down its landmark decision in UsedSoft GmbH v Oracle International Corp (C-128/11), ruling that the owner of copyright in software cannot prevent a perpetual licensee who has downloaded the software from the internet from selling his ‘used’ licence. This decision has significant implications for the software and other digital industries.