5 ms·

The right sale doctrine doesn’t apply to products like these; these are licenses to use. If they were first sale doctrine products, you could sell your goods on

The right sale doctrine doesn’t apply to products like these; these are licenses to use. If they were first sale doctrine products, you could sell your goods on secondary markets, which you cannot.

arghwhat 7y ago
There should be some crackdown on selling licenses over products. It is abused to absurd extends.
- SomeOldThrow 7y ago
  Indeed. Some stores sell this license above market rate as well compared to an actual purchase of a good. Infuriating.
inlined 7y ago
That’s a descriptive argument (describing what is, based on technicalities). I’m making a proscriptive argument about what should be. When DRM replaces an entire market, it’s reasonable for customers to have similar expectations. Eg when I die, I should be able to bequeath my library.
nitrogen 7y ago
Has that been decided by the courts for the various digital product types (software, books, music, videos, etc.)?
cortesoft 7y ago
So does the first sale doctrine not have any teeth at all? What is to stop companies from throwing a license on everything they sell, making the first sale doctrine meaningless? Could a bookseller add a license to a physical book, and suddenly you can't sell it or lend it out?
- darkpuma 7y ago
  > "Could a bookseller add a license to a physical book, and suddenly you can't sell it or lend it out? " Probably. I mean, they're already selling physical items laden with DRM (DVD/bluray), presumably in those cases they are selling you "a license to watch the disk." The ability to restrict first sale of DRM'd movies is probably on their TODO list I'd wager, or their list of greatest regrets. Incidentally, years ago, they did manage to invent a self-destructing DVD obsensibly for rental-without-return purposes. Technology Connections has a good video about it: https://www.youtube.com/watch?v=ccneE_gkSAs https://www.youtube.com/watch?v=ccneE_gkSAs
  - zaroth 7y ago
    The actual answer appears to be that you can sell add-on digital content which is licensed only for sale with the physical item, and that’s OK. But you cannot add license terms to the physical book itself, the book can be resold freely. That’s recently been affirmed by the Supreme Court.
    - darkpuma 7y ago
      Hypothetically if they had the technology to create a paperback book that self-destructs when anybody but you opens it, would that business model be illegal? As far as I know, SCOTUS said companies can't use the legal system to prevent resale of their books. But did they say that technical solutions are also banned?
      - zaroth 7y ago
        If you buy a product which is designed for a single use, knowing that it’s a single use product, and obviously this is something that would have to fail gracefully and safely, I really don’t see a problem with that. Obviously companies (and therefore customers) should be paying for the ecological impact of their waste product.
- jjeaff 7y ago
  It does have some teeth. Disney v Redbox ended up ruling that Redbox could not resell digital copies of movies from bundle packs because Disney had in the terms that it was only allowed to be sold together. But there is another case that went all the way to the supreme Court regarding resale of textbooks. Kurtsang v wiley. Textbook publisher Wileyclaimed that because they put "not for sale in the US" on their cheaper, but nearly identical international version textbooks, that meant they could dictate as such. But the defendants prevailed and the supreme Court ruled that the first sale doctrine applied and lawful purchasers of the books could import them and sell them wherever they want. This is a rather recent precedent because Costco lost a similar case v Omega a few years earlier, but it did not set a precedent. The textbook one did. But I suspect that there were some additional copyright and licensing complexities that made the Disney case different. Especially since it was two copies of the same item, just in different formats. Also, Disney, so probably the most experienced, well funded, and vicious gang of lawyers in existence. But I'm not sure if a straightforward resale of a digital item has been tested in the courts. It seems with the Kurtsang v Wiley precedent, you would have a good chance of winning.
dabockster 7y ago
Forget sale doctrines, DRM effectively prevents a consumer from leaving to a competing service. It seems to me to be more of a matter of antitrust law since it gives a company way too much control over how a consumer, well, consumes.
- scarface74 7y ago
  There is one partial exception - digital movies. Movies Anywhere is owned by Disney but is a partnership with four other studios. You can buy a movie from iTunes, Amazon Prime, Google Play, or Vudu and get credit for purchasing it from other stores.
deogeo 7y ago
But did they use the word 'buy' in their online store? Did they list the item as 'book title' instead of 'book title license'? I'm sure there's a "licensed, not sold" line buried somewhere in the EULA, but why would that take precedence over the prominently-displayed "buy"? Is the "buy" a lie? If so, how is a consumer supposed to know which statements are lies and which are not? For all they know, the EULA could be the lying one. This is all from a US point of view - Europe has disallowed using such shenanigans to rob consumers of their rights: https://www.theverge.com/2012/7/3/3134867/eu-court-of-justice-used-software-download-ruling https://www.theverge.com/2012/7/3/3134867/eu-court-of-justic...
- inlined 7y ago
  I keep hearing complaints in the US that EU regulations strangle companies, but as a consumer I’m wildly envious. When I vaped, I tried to get a new disposable part in the EU. I had to upgrade my whole mod because the parts on the market in the US were illegal in the EU because they leaked. The US is sold products that force you to buy more “juice” and make messes. And in the EU, the juice flavors must each pass tests to show they’re not harmful. In the US that’s considered an undue burden.
  - xondono 7y ago
    Conversely, the US is far more strict with diesel emissions, while the EU allows for a LOT more loopholes to favor certain companies that prop up certain economies..
    - darkpuma 7y ago
      That's a difference in priority between particulate emissions and CO2 emissions, right? With one favoring a relative reduction in soot and the other favoring a relative reduction in CO2. That's my understanding anyway, I'm not a car guy.
      - namibj 7y ago
        Not soot. Nitrogen oxides (NOx). Soot is easily taken care of and tires create a lot or particulate emissions from road travel.
olliej 7y ago
The button says buy and purchase. Not rent or lease. If it was honest and said that I suspect fewer people would buy them. Sorry, license them.
- techslave 7y ago
  but you are buying. a license.
  - thejenk 7y ago
    The argument is that if you are buying a licence, the retailer is obligated to tell you you're buying a licence. Current advertising, shopping, and checkout flows instead communicate that you are buying an eBook.

The right sale doctrine doesn’t apply to products like these; these are licenses to use. If they were first sale doctrine products, you could sell your goods on secondary markets, which you cannot.

arghwhat 7y ago

There should be some crackdown on selling licenses over products. It is abused to absurd extends.

SomeOldThrow 7y ago
Indeed. Some stores sell this license above market rate as well compared to an actual purchase of a good. Infuriating.

inlined 7y ago

That’s a descriptive argument (describing what is, based on technicalities). I’m making a proscriptive argument about what should be. When DRM replaces an entire market, it’s reasonable for customers to have similar expectations. Eg when I die, I should be able to bequeath my library.

nitrogen 7y ago

Has that been decided by the courts for the various digital product types (software, books, music, videos, etc.)?

cortesoft 7y ago

So does the first sale doctrine not have any teeth at all? What is to stop companies from throwing a license on everything they sell, making the first sale doctrine meaningless? Could a bookseller add a license to a physical book, and suddenly you can't sell it or lend it out?

darkpuma 7y ago
> "Could a bookseller add a license to a physical book, and suddenly you can't sell it or lend it out? " Probably. I mean, they're already selling physical items laden with DRM (DVD/bluray), presumably in those cases they are selling you "a license to watch the disk." The ability to restrict first sale of DRM'd movies is probably on their TODO list I'd wager, or their list of greatest regrets. Incidentally, years ago, they did manage to invent a self-destructing DVD obsensibly for rental-without-return purposes. Technology Connections has a good video about it: https://www.youtube.com/watch?v=ccneE_gkSAs https://www.youtube.com/watch?v=ccneE_gkSAs
- zaroth 7y ago
  The actual answer appears to be that you can sell add-on digital content which is licensed only for sale with the physical item, and that’s OK. But you cannot add license terms to the physical book itself, the book can be resold freely. That’s recently been affirmed by the Supreme Court.
  - darkpuma 7y ago
    Hypothetically if they had the technology to create a paperback book that self-destructs when anybody but you opens it, would that business model be illegal? As far as I know, SCOTUS said companies can't use the legal system to prevent resale of their books. But did they say that technical solutions are also banned?
    - zaroth 7y ago
      If you buy a product which is designed for a single use, knowing that it’s a single use product, and obviously this is something that would have to fail gracefully and safely, I really don’t see a problem with that. Obviously companies (and therefore customers) should be paying for the ecological impact of their waste product.
jjeaff 7y ago
It does have some teeth. Disney v Redbox ended up ruling that Redbox could not resell digital copies of movies from bundle packs because Disney had in the terms that it was only allowed to be sold together. But there is another case that went all the way to the supreme Court regarding resale of textbooks. Kurtsang v wiley. Textbook publisher Wileyclaimed that because they put "not for sale in the US" on their cheaper, but nearly identical international version textbooks, that meant they could dictate as such. But the defendants prevailed and the supreme Court ruled that the first sale doctrine applied and lawful purchasers of the books could import them and sell them wherever they want. This is a rather recent precedent because Costco lost a similar case v Omega a few years earlier, but it did not set a precedent. The textbook one did. But I suspect that there were some additional copyright and licensing complexities that made the Disney case different. Especially since it was two copies of the same item, just in different formats. Also, Disney, so probably the most experienced, well funded, and vicious gang of lawyers in existence. But I'm not sure if a straightforward resale of a digital item has been tested in the courts. It seems with the Kurtsang v Wiley precedent, you would have a good chance of winning.

dabockster 7y ago

Forget sale doctrines, DRM effectively prevents a consumer from leaving to a competing service. It seems to me to be more of a matter of antitrust law since it gives a company way too much control over how a consumer, well, consumes.

scarface74 7y ago
There is one partial exception - digital movies. Movies Anywhere is owned by Disney but is a partnership with four other studios. You can buy a movie from iTunes, Amazon Prime, Google Play, or Vudu and get credit for purchasing it from other stores.

deogeo 7y ago

But did they use the word 'buy' in their online store? Did they list the item as 'book title' instead of 'book title license'? I'm sure there's a "licensed, not sold" line buried somewhere in the EULA, but why would that take precedence over the prominently-displayed "buy"? Is the "buy" a lie? If so, how is a consumer supposed to know which statements are lies and which are not? For all they know, the EULA could be the lying one. This is all from a US point of view - Europe has disallowed using such shenanigans to rob consumers of their rights: https://www.theverge.com/2012/7/3/3134867/eu-court-of-justice-used-software-download-ruling https://www.theverge.com/2012/7/3/3134867/eu-court-of-justic...

inlined 7y ago
I keep hearing complaints in the US that EU regulations strangle companies, but as a consumer I’m wildly envious. When I vaped, I tried to get a new disposable part in the EU. I had to upgrade my whole mod because the parts on the market in the US were illegal in the EU because they leaked. The US is sold products that force you to buy more “juice” and make messes. And in the EU, the juice flavors must each pass tests to show they’re not harmful. In the US that’s considered an undue burden.
- xondono 7y ago
  Conversely, the US is far more strict with diesel emissions, while the EU allows for a LOT more loopholes to favor certain companies that prop up certain economies..
  - darkpuma 7y ago
    That's a difference in priority between particulate emissions and CO2 emissions, right? With one favoring a relative reduction in soot and the other favoring a relative reduction in CO2. That's my understanding anyway, I'm not a car guy.
    - namibj 7y ago
      Not soot. Nitrogen oxides (NOx). Soot is easily taken care of and tires create a lot or particulate emissions from road travel.

olliej 7y ago

The button says buy and purchase. Not rent or lease. If it was honest and said that I suspect fewer people would buy them. Sorry, license them.

techslave 7y ago
but you are buying. a license.
- thejenk 7y ago
  The argument is that if you are buying a licence, the retailer is obligated to tell you you're buying a licence. Current advertising, shopping, and checkout flows instead communicate that you are buying an eBook.