Federal Ruling Challenges Validity of Used Software Sales

[whaleswiththumbs]

This software came in a physical form. So there had to be a sale. Someone should inform the Supreme Court and Autodesk, that they have just failed to remember the definitions of the words they are using

It wasn't the Supreme Court. This is the mother of all stupid federal courts, the 9th circuit court. They seem to be in the current administrations back pocket, and very friendly to big buisness. Something like this will eventually be taken to the Supreme Court and struck down.

It's a shame that the 9th circuit court is so willing to legislate from the bench.

That's worse.... The (th court doesn't even sound like it should be a court, sounds like it should sink back down below the 8th ring and leave us alone.

 

[DTWolfwood]

Moot point for me since i buy New for Cheap on STEAM.

 

[Celtic_Kerr]

I dunno...last time I checked handing over money for a product with no other agreement beyond cash-for-carry-out constituted a "sale".

edit: this is why a EULA isn't seriously binding; it takes effect post-sale.
Which means I'm free to not read anything, lie, and click "agree" to get my software running.

Yeah, that is a sale, but if the product hasn't been sold yet, then he cannot appeal to that doctrine.

Instead he would appeal to a doctrine dealing with... Say... "Commitment to sell" or Intent

 

[oranger]

I dunno...last time I checked handing over money for a product with no other agreement beyond cash-for-carry-out constituted a "sale".

edit: this is why a EULA isn't seriously binding; it takes effect post-sale.
Which means I'm free to not read anything, lie, and click "agree" to get my software running.

Yeah, that is a sale, but if the product hasn't been sold yet, then he cannot appeal to that doctrine.

Instead he would appeal to a doctrine dealing with... Say... "Commitment to sell" or Intent

Hmm that's a good point, what -do- garage sales fall under, anyways?

 

[Celtic_Kerr]

I dunno...last time I checked handing over money for a product with no other agreement beyond cash-for-carry-out constituted a "sale".

edit: this is why a EULA isn't seriously binding; it takes effect post-sale.
Which means I'm free to not read anything, lie, and click "agree" to get my software running.

Yeah, that is a sale, but if the product hasn't been sold yet, then he cannot appeal to that doctrine.

Instead he would appeal to a doctrine dealing with... Say... "Commitment to sell" or Intent

Hmm that's a good point, what -do- garage sales fall under, anyways?

THey can't really touch the garage sale. FOr all they know he picked it up and was given it for free. It is within the owner's right. naughty dog can't walk up to me and sue me for giving a copy of infamous to a friend.

I can't remember exactly what is different about Ebay, I think this counts it as a public announcement with intent to sell. It's like buying out of a business, except Ebay is the proverbial GameStop re-selling used software in this case

 

[JWAN]

I dunno...last time I checked handing over money for a product with no other agreement beyond cash-for-carry-out constituted a "sale".

edit: this is why a EULA isn't seriously binding; it takes effect post-sale.
Which means I'm free to not read anything, lie, and click "agree" to get my software running.

^this
Auto-desk is just trying to make an example out of some poor schmuck whose trying to make a few $$$

 

[JWAN]

The persoun bought the product its theirs. Take a car for example. You buy it, its yours, you sell it.

How are games different? As long as you dont pirate the game and sell the illegal copies it shouldn't matter in the SLIGHTEST.

 

[Meggiepants]

Games say your only "licensing" the game as well through the EULA. However in most cases(actually all I'm pretty sure), the EULA has to be agreed after you bought the game and are installing it. And I doubt that would fly at all in the courtroom.

Just because Publishers say something is law doesn't make it a law.

This.

OT: And some courts have held before that EULA's aren't legally binding for this reason. Because EULAs are too long to print on boxes, you cannot feasibly say they are law binding if you don't sign a contract until after you have purchased something.

EULAs tend to be pretty flimsy all around. You could also check a box on a EULA that says you owe a game company 10% of your salary for the rest of your life. This stuff could be hidden somewhere in the pages and pages of information on a EULA, and no court would uphold it.

As Irridium said, just because you make up a contract, doesn't mean the contract is legal.

 

[Cynical skeptic]

-snip-

Suing the individual seller != suing ebay

So suing individual sellers at flea markets and yard sales would also work?

About as effectively as suing individual file sharers.

-snip-

I've seen you go back and forth on this for days. I'm not going to play your game. You are wrong. You are taking individual old hard drives out of the context of this fantastical interlinked network of millions of hard drives. In a world where new devices are cheap and old devices give pretty clear indications of when they're approaching failure.

Not to mention, the core of your position is purely semantic and not entirely true. Its really hard for a medium (that is not a cheap dime a dozen copy (low quality CDs/CDRs/DVDRs/DVDs/etc)) to fail in such a way that renders even most data irrecoverable.

You can quibble some more, if you'd like, but I'm simply not going to respond further. You are wrong and no amount of linking or quibbling will change that.

As far as books, "proper storage" means "never handling." Never opening the pages. Its a completely moot point, as a book thats frequently read will not last thousands of years. Hell, the dead sea scrolls were stored as properly as they could've been and they're mostly dust.

Well, if all you have to do to change the way games are sold is to change the wording, you could just say you're "permanantly renting out" your used games. No sale = problem solved.

Because of the legal definitions of "renting," only the original purchaser would be able to transfer the product between people. Meaning it'd have to be returned to the guy who bought it before it could be "indefinitely rented" again. Since gamestop and most retailers currently operate primarily on a consignment basis, retailer's used game models end.

They could start buying new copies, but they'd have to require receipts for trade-ins, which would neuter their used game models. Not to mention, the publishers could, by all rights, refuse to supply copies on anything but a consignment basis.

 

[shadow skill]

-snip-

Suing the individual seller != suing ebay

So suing individual sellers at flea markets and yard sales would also work?

About as effectively as suing individual file sharers.

-snip-

I've seen you go back and forth on this for days. I'm not going to play your game. You are wrong. You are taking individual old hard drives out of the context of this fantastical interlinked network of millions of hard drives. In a world where new devices are cheap and old devices give pretty clear indications of when they're approaching failure.

Not to mention, the core of your position is purely semantic and not entirely true. Its really hard for a medium (that is not a cheap dime a dozen copy (low quality CDs/CDRs/DVDRs/DVDs/etc)) to fail in such a way that renders even most data irrecoverable.

You can quibble some more, if you'd like, but I'm simply not going to respond further. You are wrong and no amount of linking or quibbling will change that.

As far as books, "proper storage" means "never handling." Never opening the pages. Its a completely moot point, as a book thats frequently read will not last thousands of years. Hell, the dead sea scrolls were stored as properly as they could've been and they're mostly dust.

Well, if all you have to do to change the way games are sold is to change the wording, you could just say you're "permanantly renting out" your used games. No sale = problem solved.

Because of the legal definitions of "renting," only the original purchaser would be able to transfer the product between people. Meaning it'd have to be returned to the guy who bought it before it could be "indefinitely rented" again. Since gamestop and most retailers currently operate primarily on a consignment basis, retailer's used game models end.

They could start buying new copies, but they'd have to require receipts for trade-ins, which would neuter their used game models. Not to mention, the publishers could, by all rights, refuse to supply copies on anything but a consignment basis.

Do you think that all the books within a library are under ten years old? Your ignorant statements not withstanding the length of time one can use any of these objects is very much dependent on the way in which the object is handled. You or I are not likely to see a book that is handled properly turn to dust within our own lifetimes just like we are not likely to see a properly maintained concrete structure turn to dust in our lifetimes.

It's funny that you argue that digital storage mediums are somehow magically less susceptible to wear even through normal use and should therefore be treated differently from other more classical methods of storage, yet things like Cds and DVDs are typically only designed to last between two decades and a century. The dye used in the discs can degrade even before the coating on the outer layer does. Furthermore data recovery is far from perfect just like book restoration is not necessarily perfect, or cheap for that matter. If you are going to argue that digital media should be treated specially when it comes to wear and tear issues one shouldn't be saying "Most data can be recovered." otherwise it stops being a true special case since all of the normal variables that govern every other object come into play.

I'm not taking old hard drives out of context, you are the one who lives in a world where all of these inexpensive devices don't fail. Your argument is so ludicrous since it can easily be applied to books, after all people can just print more of them to take care of the ones that will in fact degrade over time just like everything else. So who is taking things out of context? Also the point of storing anything is to be able to retrieve it when needed, why would people continuously replace hard drives with newer ones unless they were actually using said hard drives and detected a problem with the item? People get new drives because they fill the ones that they have or the ones that they have break or are about to break.

 

[Sniper Team 4]

So, if this goes to its logical conclusion, I think it's safe to say GameStop will shut down. Good job, publishers. You just killed probably your biggest customer. No one's going to go to a video game store just to get new games when they can pick up the same thing at Target, Best Buy, Wal-Mart, or any other place one can go shopping at. And you can bet those retail chains aren't going to offer the special promotions and deals, which means less people will buy the game.

Or maybe I'm just over-thinking this and I'm angry that a company finally got away with, "We took your money, but you don't own what you bought."

 

[shadow skill]

So, if this goes to its logical conclusion, I think it's safe to say GameStop will shut down. Good job, publishers. You just killed probably your biggest customer. No one's going to go to a video game store just to get new games when they can pick up the same thing at Target, Best Buy, Wal-Mart, or any other place one can go shopping at. And you can bet those retail chains aren't going to offer the special promotions and deals, which means less people will buy the game.

Or maybe I'm just over-thinking this and I'm angry that a company finally got away with, "We took your money, but you don't own what you bought."

Hey as long as they can convince people that software is a special case in this legal context they will be able to get away with pretty much anything.

 

[Nazrel]

Every day the free market dies just a little bit more. Curse you, Keynesian economics! Where's F. A. Hayek when you need him?

...Eh? What does Keynesianism have to do with anything?

Because Keynesian economic model advocates government intervention in the private sector, whether its good or bad for the consumer isn't regarded as important.

Every economic model, save anarchy, advocates government intervention in the private sector, where government intervention is protection of contractual terms. A license is just another form of contract. Your libertarian fantasies won't get you out of this one.

Libertarianism has nothing to with with the fact that contracts shoved in your face after a sale has taken place are completely and utterly unenforceable. Though Keynesianism (and the tards who back it; 9th Circuit Court included) certainly makes bullshit lawsuits like this one possible.

Keynesianism Economics is the concept that during economic downturns the government should overspend to simulate the economy, via subsidy's and public works. It has nothing to do with the case, or contract law at all.

 

[DocBalance]

Every day the free market dies just a little bit more. Curse you, Keynesian economics! Where's F. A. Hayek when you need him?

...Eh? What does Keynesianism have to do with anything?

Keynesianism believes in a government intervention, Austrian economics does not. That's a vastly simplified version of the point, but it will suffice.

 

[Rubashov]

Every day the free market dies just a little bit more. Curse you, Keynesian economics! Where's F. A. Hayek when you need him?

...Eh? What does Keynesianism have to do with anything?

Keynesianism believes in a government intervention, Austrian economics does not. That's a vastly simplified version of the point, but it will suffice.

Keynesianism is the theory that the State should run a surplus during the "boom" phase of the business cycle so that it can run a deficit during downturns and thus, hopefully, end the downturn more quickly than it would have ended otherwise. It has literally nothing to do with contract law.

And really? Austrian economics doesn't believe in government intervention? Who exactly is supposed to enforce property claims, then? Unless you're an anarcho-capitalist, you believe in at least some form of government intervention.

 

[KaiRai]

If this happens, piracy will go through the roof. Every household computer will have at least 4 keygens on it.

I don't know why companies just can't accept stuff like this. Things get bought, things get sold.

 

[Grampy_bone]

Sounds like a bunch of semantic mumbo jumbo. EULAs are quasi-legal and rarely stand up to court challenges. If software companies really want to sell their product as a license then they shouldn't put discs in the boxes at all. Oh but good luck getting people to buy empty boxes with download codes in them.