3 ms·

This is an interesting legal move: using a warranty to claim that a resold good is 'materially different' from an original, and therefore is not subject to firs

This is an interesting legal move: using a warranty to claim that a resold good is 'materially different' from an original, and therefore is not subject to first sale doctrine. If it held up in court, it seems extremely dangerous for consumer rights.

greenyoda 8y ago
How is that different from selling a used car that's no longer under warranty? If this ever gets litigated, is a court likely to make a decision that undermines the U.S. used car market? Or is the company hoping that it can intimidate sellers into backing down without ever having to go to court? I suppose that it would be stupid for car manufacturers to attempt to put restrictions on resale, since that would significantly reduce the value of a car. But the same thing could happen to games: if someone knows that they can't resell a game if they get tired of playing it, they'd be somewhat less likely to buy it in the first place (or not be willing to spend as much for it).
- seanalltogether 8y ago
  The arguments only apply to the sale of copyrighted material, not general goods.
  - ikeboy 8y ago
    Warranty is used to get around first sale rights for trademarks, not copyrights. The argument is the trademark can no longer be used if the goods are "materially different", such as by not having a warranty.
- sandworm101 8y ago
  Wont stand up in court. This is about trademarks ... ie "Ford" or "BMW". Such a ruling would kill the entire used car industry. Not going to happen anytime soon.
jrhurst 8y ago
If I was a business re-sell games. I'd definitely wouldn't try to settle. I'd want it on record if my business model was legal or not in court
- bitwize 8y ago
  You may not be able to afford an attorney willing or able to face down David Boies or whatever landshark the publisher suing you hired. Settling may be your only feasible option.
- ikeboy 8y ago
  Let’s say you run a small business making 250k/year. If you sue, it will distract you enough that you’ll likely make 100k less over the 2 years it takes. Also, the suit will cost you 50k and that won’t be recoverable even if you win. If you do win, you recover 25k in damages. All of these numbers are plausible and demonstrate how skewed the decision to sue must be. I’ve been quoted 50k by an IP lawyer as the estimated cost to take something like this to trial, and they thought I might not win if the company is able to claim my sales aren’t covered by warranty.

greenyoda 8y ago

How is that different from selling a used car that's no longer under warranty? If this ever gets litigated, is a court likely to make a decision that undermines the U.S. used car market? Or is the company hoping that it can intimidate sellers into backing down without ever having to go to court? I suppose that it would be stupid for car manufacturers to attempt to put restrictions on resale, since that would significantly reduce the value of a car. But the same thing could happen to games: if someone knows that they can't resell a game if they get tired of playing it, they'd be somewhat less likely to buy it in the first place (or not be willing to spend as much for it).

seanalltogether 8y ago
The arguments only apply to the sale of copyrighted material, not general goods.
- ikeboy 8y ago
  Warranty is used to get around first sale rights for trademarks, not copyrights. The argument is the trademark can no longer be used if the goods are "materially different", such as by not having a warranty.
sandworm101 8y ago
Wont stand up in court. This is about trademarks ... ie "Ford" or "BMW". Such a ruling would kill the entire used car industry. Not going to happen anytime soon.

jrhurst 8y ago

If I was a business re-sell games. I'd definitely wouldn't try to settle. I'd want it on record if my business model was legal or not in court

bitwize 8y ago
You may not be able to afford an attorney willing or able to face down David Boies or whatever landshark the publisher suing you hired. Settling may be your only feasible option.
ikeboy 8y ago
Let’s say you run a small business making 250k/year. If you sue, it will distract you enough that you’ll likely make 100k less over the 2 years it takes. Also, the suit will cost you 50k and that won’t be recoverable even if you win. If you do win, you recover 25k in damages. All of these numbers are plausible and demonstrate how skewed the decision to sue must be. I’ve been quoted 50k by an IP lawyer as the estimated cost to take something like this to trial, and they thought I might not win if the company is able to claim my sales aren’t covered by warranty.