Court ruling could impact used sales in the US?

[Mayhem]

Article here about issues selling used stuff on eBay (http://arstechnica.com/tech-policy/news/2010/09/the-end-of-used-major-ruling-upholds-tough-software-licenses.ars)

They can't stop people privately selling I bet... but interesting to see where this might go from here...

[suckerpunch5]

Article here about issues selling used stuff on eBay (http://arstechnica.com/tech-policy/news/2010/09/the-end-of-used-major-ruling-upholds-tough-software-licenses.ars)

They can't stop people privately selling I bet... but interesting to see where this might go from here...

wow.

So, developers can put an end to Game Stop's business model tomorrow if they decide to, right? Just word the EULA so that the game can't be resold. That would end the ebay reselling too.

Obviously you could still sell stuff at your garage sell, but that would be about it. Could this apply retroactively, or just to new stuff coming out now? I don't think it could apply retroactively, because it isn't part of the original terms under which the item was purchased.

[Bandicat]

This whole EULA thing is really starting to get out of control. What's next? A EULA to purchase and use a trash can?

If someone purchases a physical item, that item becomes their property. This does not give someone the right to start making copies of the item, however they should have the right to resell it without any interference. I can do this with a TV, a piece of furniture, a car, a lawnmower, a house, a book, a piece of clothing, etc.

Why should digital media get some kind of magic pass, because they decide to arbitrarely slap some long boring words on a product and call it a EULA? No company should get to dictate what I legitametly do with a purchased product.

[Bandicat]

Edit: Getting rid of double post created by timeout weirdness.

[s1lence]

With all the money that Ebay, Gamestop etc have in this business I have a feeling that this will end up being appealed again to a even higher court and will most likely be tied up in the court system for quite a while.

[Fuyukaze]

Doesnt EA already have something simular in their agreement? Personaly, I'd have no issue with this if companies would put all the agreements on the box. Rather then forcing people to buy the stuff before seeing the agreement, put it on the box upfront where people can see it before they even leave the store.

Still, this is going to cause lots of trouble down the road and I'm interested in seeing the next batch of [a]RIAA[/s] EULA court cases. I cant help but wonder how many grandmothers, invilids, and 9 year olds software companies will go after in their persuit of money property rights protection.

[TonyTheTiger]

A couple of things. This decision is only binding in the Ninth Circuit at the moment. Whether or not other circuits (or even the Supreme Court should it get that far) follow suit remains to be seen.

Second, the three part test the court lays out is really interesting.

"We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions."

Parts 2 and 3 look damn near indistinguishable.

The article acknowledges that simply calling something a license doesn't make it so but it seems like the Ninth Circuit is saying that all that is required beyond calling it a license is having some lockout in place. That sounds really brazen considering the lockouts are pretty much omnipresent in any asserted license. Who's going to say something is only a license but not also tie in use restrictions? I feel like, from a practical standpoint, they're inseparable.

I don't think this is over.

[Icarus Moonsight]

This crap is hilarious. Media Fascists everywhere recently! LOL

[skaar]

Eventually, media companies are going to need to accept that people are paying for convenience and to support the product's makers - not because they have to. They want to ensure that you DO have to.

In this case, AutoCAD charges you X dollars a year to license their software and includes support.... or you can buy it outright at a greater cost. Microsoft's done the same thing for years with all of their licensing models. This wasn't a retail copy of the software the guy was reselling (at least that's what I gather based on the ruling)

The pro of this model means you get free updates, support, and ongoing software development means you get new versions usually for free. So if you go "Ok we need Autocad for 5 people and it will cost us 10k a year" it's easy to budget and you don't have to worry about paying for support, etc.

Physical product WILL eventually be retired by the software/games industry and all of these brick and mortal stores will fall by the wayside. It's just a matter of when. And really, it sucks for us as gamers and collectors.

Thankfully it does work the other way. Buyers not adopting new technology or new product hurts sales, and companies are forced to re-evaluate.

Unfortunately for all of us, the Halos and the Maddens in this world have far more dollar sway than the niche titles - they have to go along with the big boys.

[bohproper]

i don't think this is really possibly. this will be tied up in litigation for the next ten years until the courts decide against this

[God-Zilla]

I guess they are going for the 1/10th left over from the 'possession is 9/10ths of the law' ? :) and what if I choose not to read their eula?

[Ro-J]

But can I still give it away? Maybe as a bonus "throw-in" with an old plastic jewel case I'd sell for $50 or so.

[portnoyd]

I'm sure this appeal will be appealed and overturned. Whatever this case decides will be stalled and rot in bureaucracy for the long haul and not have any effect.

[GarrettCRW]

I'm sure this appeal will be appealed and overturned. Whatever this case decides will be stalled and rot in bureaucracy for the long haul and not have any effect.

The next level is the Supreme Court. I'd be shocked if the Roberts Court decided in favor of the consumer.

[kedawa]

It could still be overturned without going to the SC, and it very well might given the laughably outdated precedents sited in the decision.
Still, it's scary that it's gotten this far out of hand.

[JSoup]

What I'm not understanding is if this is retroactive. If Nintendo up and says 'no resales FOREVER' does that apply to everything they ever made, from the newest Wii releases to the earliest NES game?

In any case, this seems like it's going to encourage piracy in the long run.

[buzz_n64]

Don't Copy That Floppy (Official Video - Digitally Remastered)
http://www.youtube.com/watch?v=up863eQKGUI

[kedawa]

Why would this be retroactive? You can't add an EULA or amend one after the product has been sold.
That's just an absurd notion to even consider.

[Icarus Moonsight]

You give the people that run things way to much credit, assuming they are working rationally. They do not care about your objections based on fairness to contract stipulations applied after-the-fact. Unless, you can "change" their minds through their wallets or campaign funds, of course. They are sure open to that persuasion, you just have to outbid/outbribe copyright holders...

It makes me laugh, because the only people that would see the MPAAs "Downloading is stealing" campaign are the people who bought the legit copy of the movie... The pirate copies go to a more/less crap menu or right to the feature. I love the pirated DVDs for those releases that were choked with preachy BS like that or front-loaded with non-skip-able previews...

I swear, Copyleft content is going to kill Copyright, someday. Copyright just has to get more pushy and bloated so even the talent runs away screaming.

[Porksta]

I guess they are going for the 1/10th left over from the 'possession is 9/10ths of the law' ? :) and what if I choose not to read their eula?
Then that would be your own fault.


But can I still give it away? Maybe as a bonus "throw-in" with an old plastic jewel case I'd sell for $50 or so.
Pobably not as in my mind that is the same thing as transferring it.

[FoxNtd]

http://en.wikipedia.org/wiki/First_sale_doctrine

Until they definitively show how that doesn't apply, they can kiss my ass. :frustrated:

[Rickstilwell1]

Nah I don't think they can go back and say that you can't play NES anymore. I don't see any possible circumstance where that would even be applied. This is talking more about software where the companies state that their product requires a subscription license. This looked more like a subscription product to me.

I agree with who said that if people don't buy new technology it will cause companies to rethink. If they do try to screw with the licensing of new video games like software companies, the only thing that could be done is encourage a public boycott like on 4chan or someplace where the members are notorious for reaching the world.

[tom]

So you just gotta trash them? Q-Berts Qubes for free? Yes. Dumpster diving rules.

[Rickstilwell1]

So you just gotta trash them? Q-Berts Qubes for free? Yes. Dumpster diving rules.

No collectors would be smart enough to keep their games anyway. All we'll find when we dumpster dive are a bunch of brand new games by all the companies that suck. Want Madden 2013? just go to your neighbor's trash can and say screw the store. haha

[ScourDX]

http://kotaku.com/5663625/new-court-ruling-could-affect-used-game-business

Looks like the ruling may open a lot of can of worms. This will really screw ebayers.

[Enigmus]

Don't Copy That Floppy (Official Video - Digitally Remastered)
http://www.youtube.com/watch?v=up863eQKGUI

I swear, every time I see that since the court ruling issue started up, I see this as a warning from time- people copied the (insert thing here), and the legal teams got pissed.

Also, if people throw games out after this, at least it'll prove the true value of games such as "Imagine Crap Stories" and "My Baby."

[maxlords]

I like how game companies trying to fuck with used sales could end up making libraries illegal :) THAT'S progress!

[TonyTheTiger]

Exactly right. Taken to its logical end, a ruling like this genuinely makes no sense when stacked up against decades and even centuries worth of legal theory. The first sale doctrine is one of the most basic economic foundations of a society with even modest libertarian sensibilities.

[Gentlegamer]

In order for a EULA to be an actual contract, there must be a way for the end user to accept the contract. Presently, the language is something like "opening this product indicates acceptance" which is absurd. The actual logical consquence is that the buyer will have to be able to return the product to the retailer within a certain amount of time to indicate non-acceptance of the contract indicated by the EULA.

Let's see how that flies.

[TonyTheTiger]

That is an interesting situation, isn't it? It happens with computer software all the time where you can't read the EULA until you actually attempt to use it. I'm curious how a store will react if you return an open item requesting your money back because you don't accept the license terms. The manager would probably brush it off saying that's between you and the publisher but I wonder how the software publisher would handle a refund request then.

One of the backbones of contract law is that we not only have freedom to contract but we also have freedom from contract. There has to be a way to reject the terms and not have to eat any cost as a result.

[Icarus Moonsight]

One of the backbones of contract law is that we not only have freedom to contract but we also have freedom from contract. There has to be a way to reject the terms and not have to eat any cost as a result.

Absolute agreement here. And not just in regard to EULAs either. It's "Sanction of the Victim" codified.

It's the silliest form of contract that is perpetrated on literally everyone. Agree to terms before they are stipulated or even hinted at. People absolutely know it's form is bullshit.

"Do you agree with what I am about to say?"

"I don't know. You haven't said it."

"Quit playing games and being so argumentative and literal. Do you agree or not?"

"Well, not knowing what, I guess I can't agree."

"I was about to propose world peace... And you're against it!"

"Who said that?"

"You did!"

"But you could have just as well proposed global genocide."

"So what?"

"My 'agreement' on anything in that context would mean nothing."

"Or everything!"

"Exactly."

[TonyTheTiger]

The reason EULAs and similar agreements exist in the form they do is largely the result of us not giving a shit. Let's be honest here. How many of us genuinely read the entire EULA before clicking that little "I agree" box? I know I don't. The fact that in 99.9% of all situations the agreement never comes into play in anybody's life means that we essentially allow convenience to take precedence.

It doesn't matter to us that we can't read the EULA prior to opening the shrinkwrap because it's just not that important to us.

...

Until it is.

Then all of a sudden when we take a serious look at how the system is structured even somebody with the most rudimentary understanding of contracts will see the entire EULA system is irreconcilable with the libertarian foundations of modern contract law.

This issue hasn't come up often because EULAs haven't seen much litigation. It's all still relatively new and, like I said, 99.9% of the world doesn't give a shit. And since the courts won't address an issue unless it's litigated, that means none of this has come up.

I'm not sure if anybody is ballsy enough to go out and buy a game, open it up, try to get a full refund from both the retailer and publisher by rejecting the EULA, and then file a lawsuit when the inevitable "screw you" comes from both parties. But I'm certain that's the kind of setup that needs to happen in order to get the courts to take a serious look at the EULA system itself.

As long as EULAs were just pretending to have power but nobody was seriously affected by them it didn't matter to most how they were devised. But if they start becoming serious business? If they start taking precedence over the damn first sale doctrine? Then we're going to start seeing just how messy the whole thing really is.