Okay, here's the problem. The very language that you used, implied that there's an issue. "Licensee." That means they're not an owner, so no sale occurred. Also, there's a case about patent exhaustion that you'll hate, but it is Mallinckrodt v. Medipart 976 F.2d 700 (http://en.wikipedia.org/wiki/Mallinckrodt,_Inc._v._Medipart,_Inc.) and it speaks a little to what's happening here.
Also, the idea of getting around a patent through recycling of a particular component and reusing it in one's own product would frustrate the patent holders ability to exclude others from utilizing the technology without licensing it. I can almost guarantee Apple will win this suit.
On your first point, legally the software manufacturer would HAVE to refund you. If they don't you can take them to court.
On your second point I'm not 100%, but there's some distinction here. First, you're agreeing to terms prior to your "use" of the software, and if you disagree with how they want you to use the software, then you have a right to return it. As for the painting example, if you bought a painting, and then all the sudden they slapped a bunch of use restrictions on it, again, you should be able to return the painting to the individual owner, however, it's unlikely that they would present the use after the sale.
I know it seems strange, but obviously, the software companies do what they do for a reason. It's a pain in the ass to return software BECAUSE THEY WANT IT TO BE. It means they'll get less returns. I know when you buy a disk it feels like you're buying something. But like they say in the case above, the purchase IS NOT the physical CD, it's the software contained on it. So, prior to your USE of the software, not your purchase of the CD, you have to agree to the terms of the EULA. Again, if you disagree, you can return it to the manufacturer if the retailer you bought it from won't take it back.
Okay, look. Contracts can say whatever they want. If you don't read them, without any extenuating circumstances or unconscionability, courts will uphold them. Saying EULA's should have no legal standing is basically like saying your agreements with your credit card companies should have no legal standing. Contracts are a basis on which our country runs. It's the fabric of business in the US and around the world. Again, if you object to the terms of the EULA, then don't sign it. Return the product. You have a legal right to do so. Again, it's a pain, but it's not impossible, nor would it be viewed as unreasonable by the courts.
The owner of the bike can recover against you, or against the bike shop owner at their discretion under the common law. Again, you would then have the right to recover against the bike store or whomever sold you the bike.
In licenses such as these, if you object, your issue is not with the person who you purchased the software from (say best buy), it's with the individual issuing the license. So you are able to return the software to them for your money back, not to the retailer. This is true generally because the retailers won't take back the games once the shrink wrap is open. So you have to go through the arduous process of returning the software to the manufacturer. While this is difficult, it is not so difficult as to be unacceptable in the eyes of the law.
As for the changing of the terms. While this does happen, more than likely, if you object to the changing of the terms, and write to them stating such in writing, you should have some cover legally speaking. You may also be able to return the software if you object strongly enough to the terms. I'm not 100% on that, but it's probably a good bet that courts would allow that.
The problem is that all of this stuff is a pain in the ass. And we're so used to things being easy, that most people never want to go to the trouble of going through the steps to return software, or object to terms when they're changed. This leaves a great position for the software companies because they can write whatever they want into the EULA's and SLA's and more than likely not hear a thing about it.
But, that's what the court decided upon. And I'm not sure that it's entirely true that courts have found that you can't write out copyright exceptions out contractually. But that's besides the point. The issue here, is that the entire transaction of the original software was not a sale, it was a license. And licenses can basically do whatever they want so long as their not unconscionable. And that is generally true of most software, I'm actually rather surprised that you wrote about that as if it were shocking. Licenses on software have been screwing people over for years. The court is generally bound by precedent, and I do agree with the 9th Circuit that Wise is less informative on this case than the MAI trio, but their reconciliation is not absurd. Also, the court distinguished the 2d circuit case fairly conclusively, so I'm not sure we'll see the Supreme Court hear this one.
So what to do? Well, the best bet is to say screw you to the major software devs and use open source where possible, to try to send the message that the restrictive licenses under which the software companies are selling the software is not acceptable. From a legal standpoint, it would be interesting to see whether an unenforceable contract of adhesion claim would fly. The court mentions this argument was made by the ALA, the problem there is that for the contract to be unenforceable it usually requires a "necessity of life." Now, obviously computers are entering into that realm, but there are several other hurdles that have to be crossed.
Point is, this decision sucks, but it has less to do with copyright and more to do with general rules of contract. Doesn't mean we can't try to fix it...
I agree, this is atrocious. But, at the hear of this it's not about copyright, it's about the license that was on the software. Basically, when you buy software, most contain a single use clause within the license, whether it's an "i agree to the terms" or a shrink-wrap license. And, if the person buying it didn't like it, they would have the opportunity to return the software as they wished. So, basically, sure if you have a copyrighted work, and you own it, yeah you can sell it. The problem is, that if that copyrighted work (or in this case software) contains a license, then you get into trouble. The ruling was that he didn't purchase the copies from an "owner," rather the individual in this case, was a licensee who had no right to sell the software, so technically, Vernor could probably recover against him.
I know it sucks. But such is the law. The problem isn't in the copyright law necessarily either, it's in contract, and licensing. Basically, courts are willing to allow pretty much anything into a contract as long as it's not unconscionable. I'm sure many could make an impassioned argument that this is the case, but I doubt it would hold up in court.
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Okay, here's the problem. The very language that you used, implied that there's an issue. "Licensee." That means they're not an owner, so no sale occurred. Also, there's a case about patent exhaustion that you'll hate, but it is Mallinckrodt v. Medipart 976 F.2d 700 (http://en.wikipedia.org/wiki/Mallinckrodt,_Inc._v._Medipart,_Inc.) and it speaks a little to what's happening here.
Also, the idea of getting around a patent through recycling of a particular component and reusing it in one's own product would frustrate the patent holders ability to exclude others from utilizing the technology without licensing it. I can almost guarantee Apple will win this suit.
Re: Re: Re: Re: Re: Re: Re: Re: Licenses are Contracts
On your first point, legally the software manufacturer would HAVE to refund you. If they don't you can take them to court.
On your second point I'm not 100%, but there's some distinction here. First, you're agreeing to terms prior to your "use" of the software, and if you disagree with how they want you to use the software, then you have a right to return it. As for the painting example, if you bought a painting, and then all the sudden they slapped a bunch of use restrictions on it, again, you should be able to return the painting to the individual owner, however, it's unlikely that they would present the use after the sale.
I know it seems strange, but obviously, the software companies do what they do for a reason. It's a pain in the ass to return software BECAUSE THEY WANT IT TO BE. It means they'll get less returns. I know when you buy a disk it feels like you're buying something. But like they say in the case above, the purchase IS NOT the physical CD, it's the software contained on it. So, prior to your USE of the software, not your purchase of the CD, you have to agree to the terms of the EULA. Again, if you disagree, you can return it to the manufacturer if the retailer you bought it from won't take it back.
Re: Re: Re: Re: Re: Re: Licenses are Contracts
Okay, look. Contracts can say whatever they want. If you don't read them, without any extenuating circumstances or unconscionability, courts will uphold them. Saying EULA's should have no legal standing is basically like saying your agreements with your credit card companies should have no legal standing. Contracts are a basis on which our country runs. It's the fabric of business in the US and around the world. Again, if you object to the terms of the EULA, then don't sign it. Return the product. You have a legal right to do so. Again, it's a pain, but it's not impossible, nor would it be viewed as unreasonable by the courts.
Re: Re: Re: Re: what about considering the actual circumstances
The owner of the bike can recover against you, or against the bike shop owner at their discretion under the common law. Again, you would then have the right to recover against the bike store or whomever sold you the bike.
Re: Re: Re: Re: Re: Licenses are Contracts
Not necessarily. You would just have to get a refund from the developer, not the store. Which again, is a pain in the ass.
Re: Re: Re: Re: Licenses are Contracts
Perfectly reasonable question.
In licenses such as these, if you object, your issue is not with the person who you purchased the software from (say best buy), it's with the individual issuing the license. So you are able to return the software to them for your money back, not to the retailer. This is true generally because the retailers won't take back the games once the shrink wrap is open. So you have to go through the arduous process of returning the software to the manufacturer. While this is difficult, it is not so difficult as to be unacceptable in the eyes of the law.
As for the changing of the terms. While this does happen, more than likely, if you object to the changing of the terms, and write to them stating such in writing, you should have some cover legally speaking. You may also be able to return the software if you object strongly enough to the terms. I'm not 100% on that, but it's probably a good bet that courts would allow that.
The problem is that all of this stuff is a pain in the ass. And we're so used to things being easy, that most people never want to go to the trouble of going through the steps to return software, or object to terms when they're changed. This leaves a great position for the software companies because they can write whatever they want into the EULA's and SLA's and more than likely not hear a thing about it.
Re: Re: Licenses are Contracts
But, that's what the court decided upon. And I'm not sure that it's entirely true that courts have found that you can't write out copyright exceptions out contractually. But that's besides the point. The issue here, is that the entire transaction of the original software was not a sale, it was a license. And licenses can basically do whatever they want so long as their not unconscionable. And that is generally true of most software, I'm actually rather surprised that you wrote about that as if it were shocking. Licenses on software have been screwing people over for years. The court is generally bound by precedent, and I do agree with the 9th Circuit that Wise is less informative on this case than the MAI trio, but their reconciliation is not absurd. Also, the court distinguished the 2d circuit case fairly conclusively, so I'm not sure we'll see the Supreme Court hear this one.
So what to do? Well, the best bet is to say screw you to the major software devs and use open source where possible, to try to send the message that the restrictive licenses under which the software companies are selling the software is not acceptable. From a legal standpoint, it would be interesting to see whether an unenforceable contract of adhesion claim would fly. The court mentions this argument was made by the ALA, the problem there is that for the contract to be unenforceable it usually requires a "necessity of life." Now, obviously computers are entering into that realm, but there are several other hurdles that have to be crossed.
Point is, this decision sucks, but it has less to do with copyright and more to do with general rules of contract. Doesn't mean we can't try to fix it...
Licenses are Contracts
I agree, this is atrocious. But, at the hear of this it's not about copyright, it's about the license that was on the software. Basically, when you buy software, most contain a single use clause within the license, whether it's an "i agree to the terms" or a shrink-wrap license. And, if the person buying it didn't like it, they would have the opportunity to return the software as they wished. So, basically, sure if you have a copyrighted work, and you own it, yeah you can sell it. The problem is, that if that copyrighted work (or in this case software) contains a license, then you get into trouble. The ruling was that he didn't purchase the copies from an "owner," rather the individual in this case, was a licensee who had no right to sell the software, so technically, Vernor could probably recover against him.
I know it sucks. But such is the law. The problem isn't in the copyright law necessarily either, it's in contract, and licensing. Basically, courts are willing to allow pretty much anything into a contract as long as it's not unconscionable. I'm sure many could make an impassioned argument that this is the case, but I doubt it would hold up in court.