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First Sale Under Siege: If You Bought It, You Should Own It
- ryan_s 14y agoHow does this currently apply to software? Specifically desktop software apps, and OSs.
- meaty 14y agoExactly the same way as other media. In fact sometimes worse. I have tried to sell a few bits of software via eBay (used windows XP pro retail box) which have been uninstalled or replaced with partner action pack licenses. After a day or so, I get an email from eBay saying that the item has been withdrawn due to a complaint from the manufacturer. This is what they want. I'm in the UK btw and am concerned this may become an international issue.
- SEMW 14y agoThat's ebay's choice, but they're certainly not obliged to do that by copyright -- in the EU, at least. First Sale has been upheld (in the context of software) by the ECJ pretty recently (even for software you've downloaded rather than bought in retail), in the UsedSoft case -- http://www.linklaters.com/Publications/Publication1403Newsletter/TMT-News-November-2012/Pages/EU-Used-Soft-Oracle-ECJ-approves-sale-used-software.aspx http://www.linklaters.com/Publications/Publication1403Newsle... Choice quote: "This broad interpretation of Article 4(2) is necessary as otherwise the effectiveness of the rule of exhaustion would be undermined since suppliers would merely have to call the contract a “licence” rather than a “sale” in order to circumvent it." IANAL.
- justincormack 14y agoThis article covers some of the case law http://www.lw.com/upload/pubContent/_pdf/pub4047_1.pdf http://www.lw.com/upload/pubContent/_pdf/pub4047_1.pdf but basically at least in the US software licenses as licenses not sales have been upheld. Other countries may differ.
- meaty 14y agoThe argument is actually about what you own. Is it the media or a license for one person to play it? Most people I know are fed up with such word games and just plain old steal the bits and bytes (well duplicate them - whether or not that is stealing is another question). The media industries are just hanging themselves even more by the day. I don't see any tears being shed.
- Joeri 14y agoI'm fine with first sale not applying to digital goods, but then you cannot call it buying but must call it renting instead. But of course, if amazon was honest and replaced the 'buy' button on a kindle book with a 'rent' button, people would be outraged at the price. If i cannot leave something to my son in my will, it was never mine to begin with. You can't inherit kindle books, so it's obvious that you don't buy them either. There's no such thing as "buying a license", legally speaking that's called "renting".
- nedwin 14y ago"There's no such thing as "buying a license", legally speaking that's called "renting"" Is this your legal opinion as a lawyer?
- Joeri 14y agoI'm a lawyer in common sense. "Buying a license" is what penn & teller call BS. There's a common sense understanding of what buying is, and kindle books don't fall into that category. I will admit that "legally speaking" was perhaps not accurate. But is it really?
- deleted 14y ago[deleted]
- DannyBee 14y agoWell, i'm a lawyer, and his position is at least defensible. After all, the difference between leasing and buying is exactly right to use vs ownership. Leasing/licensing have retention of ownership in the provider, buying does not. Without having thought about it for more than 5 minutes, I can't think of any legal difference other than terminology. Note that there is a difference in real property: Licensing is about giving someone the right to do something that would otherwise be unlawful, whereas leasing is generally about right to possess. However, this is not the distinction software "licenses" are making.
- hyperbovine 14y agoI hope the publishers realize that they must tread lightly here. Even by the ridiculously low standards of music and movies, books are reaaally easy to pirate. The DRM is a joke and most of them comprise fewer bytes than a moderately complex webpage. If we learned one thing from the music industry over the last 15 years, it's that the internet gives your customers the power to destroy you if you treat them with contempt for long enough. I love to read and I happily buy many Kindle books at $9.99+ a pop on Amazon. I want to live in a world where authors can make a living by writing. But bogus restrictions on book sharing, complete lack of a resale market, etc. are already starting to rub me the wrong way. At some point, if pushed too far, I'm not going to feel much remorse about flouting the system.
- tptacek 14y agoEFF is leaving very important details out about at least Kirtsaeng. What's happening in that case is not simply that publishers are trying to claw back rights from US consumers. Supap Kirtsaeng took advantage of discounted pricing that Wiley offered students in poorer countries to arbitrage prices. This trick is called "parallel importation" (or "grey market importation") and it's a legal grey area, especially where copyright is concerned, turning on whether owners exhaust the right to import on first sale. In short, the defendant in Kirtsaeng is taking advantage of a discount program Wiley never intended to offer that defendant in the first place in order to subvert Wiley's whole pricing scheme. Whether Wiley can use a legal argument about first sale to stop this or not, it seems apparent that Wiley will one way or another prevent that from happening. Knowing HN, these details probably don't do much to change your view of the case. But you should still want to know them! This is something the EFF used to be good at, but now is quite bad at, and despite the fact that EFF mostly supports causes I agree with, I urge you to direct your donations to ACLU or other civil liberties charities instead.
- MichaelGG 14y agoI too wish that the EFF would be a bit more honest when it comes to such issues. I'm very much against anything that divides up globalization and adds region locks. "Import rights" are a relic of old company structures. You see them in things like Nikon equipment going for much more money in the US, where Nikon USA is a separate company pretty much out of touch with Nikon Japan. But Nikon deals with it by only allowing servicing in country of purchase: hey, their right to lower customer service if they want. A more nefarious issue is e.g. Microsoft in other countries trying shakedown approaches, saying you licenses bought in one country are not legal in other countries. But when the details emerge, the EFF looks bad and hurts everyone on their side by misrepresenting.
- schoen 14y agoHi, As I mentioned in a reply above, an earlier EFF blog post (https://www.eff.org/deeplinks/2012/10/parade-horribles-supreme-court-first-sale-kirtsaeng-v-wiley https://www.eff.org/deeplinks/2012/10/parade-horribles-supre...) on the Kirtsaeng case did describe what Supap Kirtsaeng was doing ("purchasing books at a reduced rate in his native Thailand and selling them below list price in the States").
- deleted 14y ago[deleted]
- jellicle 14y agoBravo, EFF. The Kirtsaeng case is quite important because, if lost, it would create a loophole to destroy "first sale" in the U.S. entirely. Just cease manufacturing any sort of copyright material in the U.S.; move ALL production to Mexico or China. If the Kirtsaeng case is lost, reselling any of those works would become illegal, eliminating used book stores and similar enterprises entirely. And indeed, this could apply to any product with writing on it or code in it - massive incentives to move all production of such things out of the U.S., since then you would be able to prevent ANY secondary sales of your product. VERY important case, with massive implications for the future structure of U.S. society and the economy.
- MichaelGG 14y agoAre you sure about that? I understood it to be ruling that disallows you from buying abroad and importing. So if they moved production to Mexico, but then they imported and sold it to you, it would not matter - you'd still have first sale. What you couldn't do is buy it in Mexico and bring it in yourself and sell it. I'm against any erosion of first sale and believe all "grey market" stuff should be legal. Companies should find other ways to differentiate products rather than the meatspace equivalent of "region locks". But let's be honest: this case isn't suddenly going to destroy first sale _within the US_.
- anigbrowl 14y agoRegion locks are not desired by copyright holders, but by the distributors in those regions who want exclusivity within their retail territory. Suppose you make a product and discover that someone in, say, Indonesia is faking and selling a counterfeit version. Are you equipped to sue them? Probably not unless you're a large global firm, so it makes more sense for you to sell your product through a distributor in that territory. Likewise, pricing is different because incomes and economies are different. You charge the price the market will bear in each territory. None of this prevents individuals from buying something for themselves overseas and taking it home to use. But it does prevent bulk importation, which parties to a distribution agreement are contractually required to combat.
- eriksank 14y agoThe copyright owners have a bigger problem than what they may consider unauthorized copying. Drawing attention to compositions in sound and vision has become so much more difficult because it has become so much easier to distribute them. The scarcity has gone and so has the price. Quite a bit of the value has now decisively shifted to compositions in touch, smell, and taste, which cannot be distributed digitally.
- woah 14y agoAt what point do we realize that these people are simply trying to extract rent from our electronic communications, and we should circumvent them at any opportunity, and punish the politicians who are bought off to give them power?
- dredmorbius 14y agoI'm game with extracting reasonable rent under reasonable terms. When we're talking about designed-obsolete college texts selling for hundreds of dollars for century-old wisdom .... Several lines have been crossed.