Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scandalous ruling)

[Alexander Terekhov]

David Kastrup wrote:
> 
> Alexander Terekhov <terekhov@web.de> writes:
> 
> > http://en.wikipedia.org/wiki/Mergers_and_acquisitions in jeopardy as
> > well.
> >
> > http://ipspotlight.com/2010/09/19/ninth-circuit-licensee-of-off-the-shelf-software-may-not-resell-used-copies-of-the-software/
> >
> > "Ninth Circuit: Licensee of off-the-shelf software may not resell used
> > copies of the software
> 
> That still glosses over the very small factoid that the copies in
> question in this case were superseded by reduced-price _upgrades_ where
> the upgrade licensing conditions included an agreement to destroy the
> original media.  Where "destroy" does not mean resell them on Ebay.
> 
> This is significantly different from copies retired without upgrade, for
> example by buying new _full_ versions rather than updates.

So if they had not upgraded on the cheap with the destroy proviso could
they have sold their R14? Since we dont buy this software how about we
return it when we are finished with it noting it is in the same
condition as when we got it and ask for our money to be refunded in full
for the surplus license? 

http://www.zdnet.com/tb/1-87865-1665902

"The purchased upgrades have no bearing on this case

The court didn't address the issue of the upgrades because it has no
bearing on the case. Nothing in the upgrade agreement specifically
transferred ownership of the R14 copies back to Autodesk. So, if it can
be proved that CTA owned the R14 copies before the upgrade, they still
owned them after the upgrade (in addition to the R15 copies). The
requirement to destroy the copies by itself doesn't transfer ownership
(this is consistent with precedent in United States v. Wise where
transfer of copies strictly for the purpose of salvage or destruction
still constitutes a sale or other transfer of ownership).

This may seem unfair from Autodesk's point of view, but considering it
from CTA's point of view, they may view the "upgrade" discount similar
to a "frequent customer" discount. I often buy books from the bookstore
at a similar type of discount for being a frequent buyer. But this
doesn't mean that the bookstore gets my previously purchased books back
in exchange for the discount.

Software upgrade discounts and book discounts serve exactly the same
purpose: to encourage future purchases by rewarding the customer for
past purchases and brand loyalty. "

http://news.cnet.com/8301-1001_3-20016864-92.html

"Consumer advocates are up in arms over a recent ruling by a federal
court of appeals in Seattle. The decision, Vernor v. Autodesk (PDF),
held that the terms of an end-user licensing agreement, or EULA, can
change the sale of commercial software into a mere license, in this case
a license that prohibits users from reselling their copy of the
software. 

 The case involved an eBay seller named Timothy Vernor. Vernor bought
several outdated copies of Autodesk's AutoCAD program from a business
that had originally purchased the software from Autodesk. Vernor then
resold the copies well below list price on eBay, despite efforts by
Autodesk to have the listings canceled. 

The three-judge appellate court, reversing a lower-court decision, ruled
that the original owner was bound by the software license not to resell
the copies. As a result, Vernor obtained no rights by purchasing the
discs, and his subsequent sales violated Autodesk's copyright. 

The Electronic Frontier Foundation, which filed an amicus brief
supporting Vernor, decried the ruling as "a major blow to user rights." 

Beyond the ruling, the opinion announced a simple test to determine when
a software transaction constitutes a licensed use of the product rather
than the outright sale of a copy. The transaction is a license, the
court said bluntly, any time the seller specifies in a EULA or similar
document that "the user is granted a license." The document
"significantly restricts the user's ability to transfer the software"
and otherwise "imposes notable use restrictions." 

That test would treat nearly every EULA I've read as a license, not a
sale. And given such helpful guidance by the court, it's safe to assume
that any EULAs that don't meet these minimal requirements will be
quickly rewritten. Under the Vernor test, most software transactions
will be treated as licenses. 

And the difference between a sale and a license can be significant, as
the Vernor case demonstrates. Under a longstanding principle of
copyright law known as the "first-sale doctrine," for example, the
lawful owner of a copy has the right to resell it without interference
from the copyright holder. The first-sale doctrine makes possible the
secondary markets of used-book, -music, and -game stores, among others. 

Indeed, the primary goal of sellers seeking to characterize transactions
as licenses is often just to avoid the first-sale doctrine and foreclose
the creation of those resale markets. 

Beyond software, the appellate decision has the potential to impact
resale markets for a wide range of information products that come
bundled with license agreements. This includes other forms of digital
content, including electronic books, music, video games, and movies. "

regards,
alexander.

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