4 ms·

No, you don't own it: Court upholds EULAs, threatens digital resale

31 points by timwiseman 16y ago

troymc 16y ago
The article says this ruling came from US Court of Appeals for the Ninth Circuit. Can the case still be appealed, e.g. to the Supreme Court, or what? (I'm not a lawyer.)
- tptacek 16y ago
  Yes.
- btilly 16y ago
  It was heard by a 3 judge panel. As I understand it the next step is an appeal to the full court, and then to the Supreme Court. I hope it gets appealed and this ruling is overturned.
  - hga 16y ago
    And the 9th is notorious for being overturned. That said, if CamperBob at http://news.ycombinator.com/item?id=1680416 http://news.ycombinator.com/item?id=1680416 is correct in that "It involved a user who sold copies that were contractually supposed to be destroyed (or at least not reinstalled) after an upgrade" then the copies were never legit to begin with and the First-sale doctrine is not necessarily in jeopardy.
    - irons 16y ago
      The 9th is by far the largest circuit, so its rates of being successfully appealed and overturned are proportionately greater. Conventional wisdom says that the 9th gets overturned when its decisions skew too liberal. The Roberts court is far less likely to overturn a decision perceived as skewing "business-friendly". Nothing's more business-friendly than enforcing contracts, right? Personal responsibility and all that.
RiderOfGiraffes 16y ago
Same story, but from Wired: http://news.ycombinator.com/item?id=1679906 http://news.ycombinator.com/item?id=1679906
jrockway 16y ago
What's the legal basis for this? Under what circumstances can a contract I never even saw apply to me? (Why not just sell the disks and serial numbers, then? You can't use the software, wink wink nudge nudge, but the disk does have the software and the serial number will activate it.) Also, that Amazon EULA is quite strange. You aren't allowed to "synchronize" the music file you bought? You can't have the music on your computer and on your mp3 player. There's a rule that 0 of their customers follow...
- mattmanser 16y ago
  The problem is more that he bought the licence off someone who had seen the contract, albiet a nominal sight. Remember those 'you must accept this 10000 word agreement' every time you install anything on your computer? There's a lot of dodginess going on in EULAs issued by software companies, for example I was forced to accept a 55 page legal document just to download a free app on iTunes the other day (the iTunes terms of service). I cannot believe that more than a tiny percentage of people have ever read those terms (and they know it). Forced is a strong word, but how else could I use the phone I bought? It's a major selling point of the phone and yet there's a 55 page agreement to use it? Nonsense. While I realise it's a 'legal' document, there's something very wrong with a legal system that essentially relinquishes basic consumer protection because they've made it impossible to use your purchase without relinquishing significant rights. Courts shouldn't uphold these extremely complicated EULAs which basically say 'screw you'. In the end, a digital good which was never used should be able to be resold. As others have said, we can only hope this is overturned as it does have massive implications for the future of digital goods.
  - _delirium 16y ago
    It's also not clear to me what distinguishes this from the book EULAs that were held unenforceable in the original 1908 case. Publishers there printed purported "licenses" on the copyright page of their books, including terms like "you may not resell this book for less than $1.00". But those were held not to be enforceable, because it was held that the contractual relationship between publisher and bookbuyer is terminated when the sale is completed, at least in the normal case of books sold at retail (books provided under privately negotiated contracts, like documentation provided under an NDA, can still be enforced). Could something like that be upheld today if the publisher were a bit more careful with its legal fictions? Perhaps something like: You are granted a single, non-transferable, non-exclusive license to read this book. For your convenience, a hardcopy, which remains the sole property of Publishing Co., has been provided for your use. You may retain this copy so long as you remain in compliance with this license, but may not transfer it to any other party.
jhghjnmmn 16y ago
Isn't this going to upset the IRS slightly? Are they going to demand the money back from everybody that wrote off software as a depreciation? Alternatively are people now going to be able to write off software as a cost rather than an asset?
Qz 16y ago
So, to recap: EULAs are binding, they can control just about everything you might dream up, and only Congress can change the situation. Huge leap. From what I can tell, the ruling only applies to resale, and can't reliably be construed to imply that you can barter for people's souls in a EULA or what have you.

31 points by timwiseman 16y ago

The article says this ruling came from US Court of Appeals for the Ninth Circuit. Can the case still be appealed, e.g. to the Supreme Court, or what? (I'm not a lawyer.)

tptacek 16y ago
Yes.
btilly 16y ago
It was heard by a 3 judge panel. As I understand it the next step is an appeal to the full court, and then to the Supreme Court. I hope it gets appealed and this ruling is overturned.
- hga 16y ago
  And the 9th is notorious for being overturned. That said, if CamperBob at http://news.ycombinator.com/item?id=1680416 http://news.ycombinator.com/item?id=1680416 is correct in that "It involved a user who sold copies that were contractually supposed to be destroyed (or at least not reinstalled) after an upgrade" then the copies were never legit to begin with and the First-sale doctrine is not necessarily in jeopardy.
  - irons 16y ago
    The 9th is by far the largest circuit, so its rates of being successfully appealed and overturned are proportionately greater. Conventional wisdom says that the 9th gets overturned when its decisions skew too liberal. The Roberts court is far less likely to overturn a decision perceived as skewing "business-friendly". Nothing's more business-friendly than enforcing contracts, right? Personal responsibility and all that.

RiderOfGiraffes 16y ago

Same story, but from Wired: http://news.ycombinator.com/item?id=1679906 http://news.ycombinator.com/item?id=1679906

jrockway 16y ago

What's the legal basis for this? Under what circumstances can a contract I never even saw apply to me? (Why not just sell the disks and serial numbers, then? You can't use the software, wink wink nudge nudge, but the disk does have the software and the serial number will activate it.) Also, that Amazon EULA is quite strange. You aren't allowed to "synchronize" the music file you bought? You can't have the music on your computer and on your mp3 player. There's a rule that 0 of their customers follow...

mattmanser 16y ago
The problem is more that he bought the licence off someone who had seen the contract, albiet a nominal sight. Remember those 'you must accept this 10000 word agreement' every time you install anything on your computer? There's a lot of dodginess going on in EULAs issued by software companies, for example I was forced to accept a 55 page legal document just to download a free app on iTunes the other day (the iTunes terms of service). I cannot believe that more than a tiny percentage of people have ever read those terms (and they know it). Forced is a strong word, but how else could I use the phone I bought? It's a major selling point of the phone and yet there's a 55 page agreement to use it? Nonsense. While I realise it's a 'legal' document, there's something very wrong with a legal system that essentially relinquishes basic consumer protection because they've made it impossible to use your purchase without relinquishing significant rights. Courts shouldn't uphold these extremely complicated EULAs which basically say 'screw you'. In the end, a digital good which was never used should be able to be resold. As others have said, we can only hope this is overturned as it does have massive implications for the future of digital goods.
- _delirium 16y ago
  It's also not clear to me what distinguishes this from the book EULAs that were held unenforceable in the original 1908 case. Publishers there printed purported "licenses" on the copyright page of their books, including terms like "you may not resell this book for less than $1.00". But those were held not to be enforceable, because it was held that the contractual relationship between publisher and bookbuyer is terminated when the sale is completed, at least in the normal case of books sold at retail (books provided under privately negotiated contracts, like documentation provided under an NDA, can still be enforced). Could something like that be upheld today if the publisher were a bit more careful with its legal fictions? Perhaps something like: You are granted a single, non-transferable, non-exclusive license to read this book. For your convenience, a hardcopy, which remains the sole property of Publishing Co., has been provided for your use. You may retain this copy so long as you remain in compliance with this license, but may not transfer it to any other party.

jhghjnmmn 16y ago

Isn't this going to upset the IRS slightly? Are they going to demand the money back from everybody that wrote off software as a depreciation? Alternatively are people now going to be able to write off software as a cost rather than an asset?

Qz 16y ago

So, to recap: EULAs are binding, they can control just about everything you might dream up, and only Congress can change the situation. Huge leap. From what I can tell, the ruling only applies to resale, and can't reliably be construed to imply that you can barter for people's souls in a EULA or what have you.