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Comment: Re:Not Quite (Score 1) 758

by Legal Penguin (#33540040) Attached to: Court Says First Sale Doctrine Doesn't Apply To Licensed Software

The opinion specifically states that the customer can return the software if he doesn't want to agree to the EULA (13866). This is a requirement for the EULA to be binding in this context. There's a fair amount of law on that, so if you ever find yourself contesting a EULA proof that you could not return the software prior to accepting it would be relevant.

Comment: Anyone Read It? (Score 5, Informative) 758

by Legal Penguin (#33539970) Attached to: Court Says First Sale Doctrine Doesn't Apply To Licensed Software

Okay, I hesitate to weigh in here, because this isn't going to be a popular question, but did anyone read the opinion? This is, factually, a rotten case for first sale. CTA bought the software and agreed to the EULA which specifically required that they destroy Release 14 in order to get upgrade pricing on Release 15. They paid $495 per license for R 15 instead of the normal $3,750 they would have paid specifically BECAUSE they were required to destroy R 14. Instead they decided to say screw it and they sold their old R 14 copies on the secondary market with the activation codes handwritten on the package. Vernor bought the copies, knowing about the EULA, and then resold them and claimed protection from the first sale doctrine.

Now I'm as gung ho as the next guy about appropriate limitations on copyright (maybe not the next guy here on /., but the average next guy); and in particular I think first sale, like fair use, is an incredibly important protection that's been getting the shaft in the courts lately. But in this particular context -- the upgrade context where the company that poured its dollars into writing better and stronger code is trying to cut its customers a break -- it's going to be a pretty hard sell. Vernor screwed himself here, and unfortunately I suspect he took a lot of other people with him.

Comment: Re:Court Costs Paid? (Score 2, Informative) 86

by Legal Penguin (#29157629) Attached to: RIAA Loses Case Against Launch Media

Yes, but note that "costs" are not the same as "fees". Court costs are quite minimal -- filing fees and such -- it's not the same as attorney's fees and the other expenses related to litigation.

Incidentally, to clarify the question above, "as a matter of law" means that the question could have been resolved by the judge on a motion to dismiss (without reference to the facts and assuming all facts to be true as alleged in the complaint), rather than on a motion for summary judgment (which relies on statements of "undisputed fact") or at trail by the finder of fact.IAAL; IANYL.

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