This document is still technically a part of the United States Code,

No, the Articles of Confederation are not part of the US Code. They were superseded by the current US Constitution. They are not law in any way shape or form, except perhaps as an occasional interpretive guide to the current constitution when in court cases we try to compare it to the current document to argue that the new language means something different.

Repeat: The Articles of Confederation are not part of the US Code.

(But what would I know? I'm just a law prof who has taught constitutional law...)

Yes. As the Court notes explicitly on the fourth page of the decision.

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.

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.

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.

Kozinski is Jewish; in fact, his parents were Holocaust survivors. I wouldn't be concerned.

If this is still on, can some explain where? froomkin@law.miamiMOSCOW.edu minus city

It was my Illudium Q-35 Explosive Space Modulator. I was wondering where it got to.

-Marvin

P.S. Where was the Kaboom? There was supposed to be an Earth-shattering Kaboom.