5 ms·

I suspect Elon has never heard of the first sale doctorine. Got my popcorn ready.

Terr_ 3y ago
IANAL but I think First Sale Doctrine is mainly concerned with copyrights, as opposed to some kind of contract for sale of a physical good. So whether it poses a problem for Tesla will depend on whether they are trying to rely on copyrights to exert their control through the contract.
- kevin_thibedeau 3y ago
  It applies to physical goods. Tesla will just force buyers to sign away their rights with a contract.
  - Terr_ 3y ago
    > It applies to physical goods. No, there could be something else that applies to physical goods, but it's not the "First Sale Doctrine", which is specifically about limitations in copyright. [0] If I harvest a generic apple and offer it with a contract stating that the buyer will not allow anyone else to eat the apple, there's no copyright involved, and thus no First Sale Doctrine either. [0] https://www.nolo.com/legal-encyclopedia/the-first-sale-doctrine.html https://www.nolo.com/legal-encyclopedia/the-first-sale-doctr...
    - kelnos 3y ago
      To be clear, First Sale Doctrine does apply to physical goods: the doctrine pre-dates copyrighted digital goods. The idea was that a publisher couldn't prevent someone from reselling their paperback copy of a novel after they've read it (for example). Of course, it in theory could apply to digital goods as well, but most copyrighted digital goods you don't actually buy, you just license. Good luck reselling a Kindle book. You have to strip the DRM first, which, while possible, violates the DMCA.
      - Ajay-p 3y ago
        Case in point where it applied to physical goods : https://en.wikipedia.org/wiki/Kirtsaeng_v._John_Wiley_%26_Sons,_Inc https://en.wikipedia.org/wiki/Kirtsaeng_v._John_Wiley_%26_So....
viro 3y ago
yea umm first sale doctrine doesn't apply to software. Edit: also resellers are a plague. That do nothing but buy up supply and double the price.
- scotty79 3y ago
  Resellers do something of value. They purchase a thing and hold it for some time protecting it from being snatched of the market and make it available to rich purchaser after that time who might otherwise have trouble of obtaining the item at that time. They provide service for the rich at the expense of the poor. Which is probably not very nice but half of the capitalism works on that premise.
- freeone3000 3y ago
  This is a truck.
  - k310 3y ago
    Ce n'est pas un camion Apologies to Rene Magritte.
    - jcranmer 3y ago
      Ceci*
    - viewtransform 3y ago
      That truck doesn't have une pipe
- Terr_ 3y ago
  It does apply to software: If I buy a game CD I can resell it without any copyright infringement.
  - kelnos 3y ago
    The CD is a physical good, though. While the First Sale Doctrine applies in principle to software, in practice nowadays it's very difficult to exercise that right. A lot of it is subscription-based, and reselling your subscription is pointless. Other stuff is DRM-encumbered, and/or tied to an online account in some form, so you can't really resell it successfully, at least not without breaking the DRM, which is in violation of a different law. And the manufacturer would claim that you've licensed the software, not actually bought it, anyway. Gross.
kjksf 3y ago
Ford had similar rule for Ford GT and successfully sued John Cena (the actor / wrestler) for violating it and won. https://www.caranddriver.com/news/a21622751/the-flip-that-flopped-john-cena-and-ford-settle-gt-resale-lawsuit/ https://www.caranddriver.com/news/a21622751/the-flip-that-fl...
- deleted 3y ago
  [deleted]
- fsckboy 3y ago
  according to that article, technically Cena and Ford agreed to a settlement where Cena would pay an unspecified amount of money to Ford and Ford would donate the money to charity. Cena had paid to buy the car from Ford, and sold the car presumably at a profit if it was at market value, so we can't actually tell what happened. Ford did make their point, so your comment is good. That article also says "After initially saying it would only produce the car for two years, Ford responded to heavy demand by doubling that life span to four total years of production. At a rate of 250 cars per year, the full run will equal 1000 vehicles." That seems to be a bit of a broken promise to initial buyers of the initial run of cars, as more would decrease their resale value.
  - wmf 3y ago
    There's been some related discourse about how Ferrari may be making significantly more "limited edition" cars than they claim. I'm not sure whether it matters whether demand exceeds supply by 2x or 4x.
- dmitrygr 3y ago
  Did you actually bother to read the link you posted? They did not win in court, and most likely would not have been able to. They settled in a way that allowed both parties to save face.
judge2020 3y ago
https://www.tesla.com/configurator/api/v3/terms?locale=en_US&model=m3&saleType=Sale https://www.tesla.com/configurator/api/v3/terms?locale=en_US... > For Cybertruck Only: You understand and acknowledge that the Cybertruck will first be released in limited quantity. You agree that you will not sell or otherwise attempt to sell the Vehicle within the first year following your Vehicle’s delivery date. Notwithstanding the foregoing, if you must sell the Vehicle within the first year following its delivery date for any unforeseen reason, and Tesla agrees that your reason warrants an exception to its no reseller policy, you agree to notify Tesla in writing and give Tesla reasonable time to purchase the Vehicle from you at its sole discretion and at the purchase price listed on your Final Price Sheet less $0.25/mile driven, reasonable wear and tear, and the cost to repair the Vehicle to Tesla’s Used Vehicle Cosmetic and Mechanical Standards. If Tesla declines to purchase your Vehicle, you may then resell your Vehicle to a third party only after receiving written consent from Tesla. You agree that in the event you breach this provision, or Tesla has reasonable belief that you are about to breach this provision, Tesla may seek injunctive relief to prevent the transfer of title of the Vehicle or demand liquidated damages from you in the amount of $50,000 or the value received as consideration for the sale or transfer, whichever is greater. Tesla may also refuse to sell you any future vehicles
- scotty79 3y ago
  There's such thing as unlawful clause. I'm hoping that in the future courts will strike more clauses as unlawful with penalty to the company that made them. So the companies think long and hard about including them in their purchase terms.
gamblor956 3y ago
First sale doctrine is related to the sale of physical articles of copyrighted items. The appropriate body of law for purely physical goods is "equitable servitudes on chattels" (aka post-sale restraints). Generally illegal, but some restraints are allowed. For example, a ban on resale is generally not enforceable, but a right of refusal is (however, if the seller refuses to buy back the item, the buyer is free to sell to whoever they want). Additionally, sellers can simply refuse to sell additional items to the buyer, which is what Ferrari, Jaguar, and other luxury car makers do. (Watchmakers also do this.)
- adhesive_wombat 3y ago
  Is the seller allowed to set the price they want for that first refusal?
  - gamblor956 3y ago
    They have the right to refuse the price the original buyer has an offer from a third party purchaser. I.e., if I buy Model Z from Tesla, and then arrange to sell it to Sally for $200k (meaning that is the price Sally agrees to pay), Tesla has the right to swoop in and match the $200k and buy it instead.
    - adhesive_wombat 3y ago
      Interesting. That doesn't seem to be the contract Tesla is using: they depreciate it by milage at 25 cents a mile and also deduct the cost of the refurbishment. Would that then be unenforceable?

IANAL but I think First Sale Doctrine is mainly concerned with copyrights, as opposed to some kind of contract for sale of a physical good. So whether it poses a problem for Tesla will depend on whether they are trying to rely on copyrights to exert their control through the contract.

kevin_thibedeau 3y ago
It applies to physical goods. Tesla will just force buyers to sign away their rights with a contract.
- Terr_ 3y ago
  > It applies to physical goods. No, there could be something else that applies to physical goods, but it's not the "First Sale Doctrine", which is specifically about limitations in copyright. [0] If I harvest a generic apple and offer it with a contract stating that the buyer will not allow anyone else to eat the apple, there's no copyright involved, and thus no First Sale Doctrine either. [0] https://www.nolo.com/legal-encyclopedia/the-first-sale-doctrine.html https://www.nolo.com/legal-encyclopedia/the-first-sale-doctr...
  - kelnos 3y ago
    To be clear, First Sale Doctrine does apply to physical goods: the doctrine pre-dates copyrighted digital goods. The idea was that a publisher couldn't prevent someone from reselling their paperback copy of a novel after they've read it (for example). Of course, it in theory could apply to digital goods as well, but most copyrighted digital goods you don't actually buy, you just license. Good luck reselling a Kindle book. You have to strip the DRM first, which, while possible, violates the DMCA.
    - Ajay-p 3y ago
      Case in point where it applied to physical goods : https://en.wikipedia.org/wiki/Kirtsaeng_v._John_Wiley_%26_Sons,_Inc https://en.wikipedia.org/wiki/Kirtsaeng_v._John_Wiley_%26_So....

viro 3y ago

yea umm first sale doctrine doesn't apply to software. Edit: also resellers are a plague. That do nothing but buy up supply and double the price.

scotty79 3y ago
Resellers do something of value. They purchase a thing and hold it for some time protecting it from being snatched of the market and make it available to rich purchaser after that time who might otherwise have trouble of obtaining the item at that time. They provide service for the rich at the expense of the poor. Which is probably not very nice but half of the capitalism works on that premise.
freeone3000 3y ago
This is a truck.
- k310 3y ago
  Ce n'est pas un camion Apologies to Rene Magritte.
  - jcranmer 3y ago
    Ceci*
  - viewtransform 3y ago
    That truck doesn't have une pipe
Terr_ 3y ago
It does apply to software: If I buy a game CD I can resell it without any copyright infringement.
- kelnos 3y ago
  The CD is a physical good, though. While the First Sale Doctrine applies in principle to software, in practice nowadays it's very difficult to exercise that right. A lot of it is subscription-based, and reselling your subscription is pointless. Other stuff is DRM-encumbered, and/or tied to an online account in some form, so you can't really resell it successfully, at least not without breaking the DRM, which is in violation of a different law. And the manufacturer would claim that you've licensed the software, not actually bought it, anyway. Gross.

kjksf 3y ago

Ford had similar rule for Ford GT and successfully sued John Cena (the actor / wrestler) for violating it and won. https://www.caranddriver.com/news/a21622751/the-flip-that-flopped-john-cena-and-ford-settle-gt-resale-lawsuit/ https://www.caranddriver.com/news/a21622751/the-flip-that-fl...

deleted 3y ago
[deleted]
fsckboy 3y ago
according to that article, technically Cena and Ford agreed to a settlement where Cena would pay an unspecified amount of money to Ford and Ford would donate the money to charity. Cena had paid to buy the car from Ford, and sold the car presumably at a profit if it was at market value, so we can't actually tell what happened. Ford did make their point, so your comment is good. That article also says "After initially saying it would only produce the car for two years, Ford responded to heavy demand by doubling that life span to four total years of production. At a rate of 250 cars per year, the full run will equal 1000 vehicles." That seems to be a bit of a broken promise to initial buyers of the initial run of cars, as more would decrease their resale value.
- wmf 3y ago
  There's been some related discourse about how Ferrari may be making significantly more "limited edition" cars than they claim. I'm not sure whether it matters whether demand exceeds supply by 2x or 4x.
dmitrygr 3y ago
Did you actually bother to read the link you posted? They did not win in court, and most likely would not have been able to. They settled in a way that allowed both parties to save face.

judge2020 3y ago

https://www.tesla.com/configurator/api/v3/terms?locale=en_US&model=m3&saleType=Sale https://www.tesla.com/configurator/api/v3/terms?locale=en_US... > For Cybertruck Only: You understand and acknowledge that the Cybertruck will first be released in limited quantity. You agree that you will not sell or otherwise attempt to sell the Vehicle within the first year following your Vehicle’s delivery date. Notwithstanding the foregoing, if you must sell the Vehicle within the first year following its delivery date for any unforeseen reason, and Tesla agrees that your reason warrants an exception to its no reseller policy, you agree to notify Tesla in writing and give Tesla reasonable time to purchase the Vehicle from you at its sole discretion and at the purchase price listed on your Final Price Sheet less $0.25/mile driven, reasonable wear and tear, and the cost to repair the Vehicle to Tesla’s Used Vehicle Cosmetic and Mechanical Standards. If Tesla declines to purchase your Vehicle, you may then resell your Vehicle to a third party only after receiving written consent from Tesla. You agree that in the event you breach this provision, or Tesla has reasonable belief that you are about to breach this provision, Tesla may seek injunctive relief to prevent the transfer of title of the Vehicle or demand liquidated damages from you in the amount of $50,000 or the value received as consideration for the sale or transfer, whichever is greater. Tesla may also refuse to sell you any future vehicles

scotty79 3y ago
There's such thing as unlawful clause. I'm hoping that in the future courts will strike more clauses as unlawful with penalty to the company that made them. So the companies think long and hard about including them in their purchase terms.

gamblor956 3y ago

First sale doctrine is related to the sale of physical articles of copyrighted items. The appropriate body of law for purely physical goods is "equitable servitudes on chattels" (aka post-sale restraints). Generally illegal, but some restraints are allowed. For example, a ban on resale is generally not enforceable, but a right of refusal is (however, if the seller refuses to buy back the item, the buyer is free to sell to whoever they want). Additionally, sellers can simply refuse to sell additional items to the buyer, which is what Ferrari, Jaguar, and other luxury car makers do. (Watchmakers also do this.)

adhesive_wombat 3y ago
Is the seller allowed to set the price they want for that first refusal?
- gamblor956 3y ago
  They have the right to refuse the price the original buyer has an offer from a third party purchaser. I.e., if I buy Model Z from Tesla, and then arrange to sell it to Sally for $200k (meaning that is the price Sally agrees to pay), Tesla has the right to swoop in and match the $200k and buy it instead.
  - adhesive_wombat 3y ago
    Interesting. That doesn't seem to be the contract Tesla is using: they depreciate it by milage at 25 cents a mile and also deduct the cost of the refurbishment. Would that then be unenforceable?