Edit: Regarding the first point, I think the importance is whether he did or did not see the EULA.Buzz Killington said:You're conflating two separate points from the case: "[1] Judge Pregerson ruled that Adobe had sold its software instead of licensed the software. Thus under the first-sale doctrine, Adobe can not control how SoftMan resells those particular copies of Adobe software after the initial sale. [2] The Court also found that SoftMan had not infringed on the EULA because SoftMan had never run the program and therefore never assented to the terms."The buyer did not run the program, and had no knowledge of the EULA. The courts said he was not bound because he did not click "I Accept".
The courts say he did not infringe the EULA because he did not assent to it, but they refused to rule on whether the EULA would have been binding if he did actually run and assented to it. So it goes both ways I suppose. One can only assume what would happen if he did run it and assented to it.
I stand corrected. It was CTA who sold off their second-hand copy to Vernor.Buzz Killington said:No, he didn't. Have you read the case you keep citing?Vernor assented to the EULA and accepted it.
"In 2005, Mr. Vernor purchased an authentic, used AutoCAD package at a garage sale and put it up for auction on eBay."
"In 2007, Mr. Vernor bought four authentic, used AutoCAD packages from an office sale at Cardwell/Thomas Associates (?CTA?), a Seattle architecture firm." (He put those on eBay as well.)
[...CTA later upgraded to the newer, fifteenth version of the AutoCAD program, AutoCAD 2000. It paid $495 per upgrade license, compared to $3,750 for each new license. The SLA for AutoCAD 2000, like the SLA for Release 14, required destruction of copies of previous versions of the software, with proof to be furnished to Autodesk on request. However, rather than destroying its Release 14 copies, CTA sold them to Vernor at an office sale with the handwritten activation codes necessary to use the software...]
But apparently Vernor was aware of the terms as well.
[...Though he was aware of the SLA?s existence, he believed that he was not bound by its terms...]
So yeah, he read the thing and knew he could not have re-distributed it. And Autodesk repeatedly took down his eBay auction and told him specifically he cannot sell it. He ignored it. That means there need not be any assent at all as long as he knew what he was getting into.
I'd hazard a guess at the EULA being too onerous and burdensome on the consumer. Isn't there some law that says you cannot sell broken goods in the first place regardless of what the contract says? And it also begs the question why didn't Vernon tried that with Autodesk (or if they did, why did it fail). And as far as I've read, the court that decided on Vernon was mumbling some mumbo-jumbo about being bound to follow precedents. If that is the case, why did they ignore Softman (Or Step-Saver, for that matter)?Buzz Killington said:You're missing the point of SoftMan, which is that the court ruled that the EULA printed on the box didn't constitute a valid contract.The seller tried to sell a non-working copy with their EULA. Of course that wouldn't fly.
Vernor did not sell broken copies.
Yet no case has went to the Supreme Court yet. Why? You would think that those who got shafted in the ruling would want to appeal to get the case overturned, yet no cases are making their way there. Since Vernon blatantly ignored the two cases you provide, wouldn't that mean those two cases are implicitly overruled?Buzz Killington said:In any event, the point is that Vernor in no way represents the complete final word on the subject. It's not law--it's barely precedent until and unless the Supreme Court rules on it--and there are many, many conflicting legal opinions on it.