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Comment by touchofevil | Hacker News Reader

If you want to learn about a really interesting aspect of the "first sale doctrine" and how it applies to software, you should have a look at "Vernor vs Autodesk" in the USA and compare it to "Oracle vs UsedSoft" in the EU. Basically, in the USA the courts determined that if a company sells you software, but in their terms & conditions claim that they are merely granting you a license, then you can't resell the software b/c you aren't considered to own it. In the EU however, if a company sells you a permanent life-time license in exchange for a one-time fee, the courts determined that you aren't merely licensing that software, you own it and you are allowed to resell it.

I think these different rulings haven't been fully appreciated yet. For example, if you buy Apple's Final Cut X for $299, you should be allowed to resell that software if you live in the EU, but there is currently no way to transfer licenses between users, preventing users from reselling it. It seems to me that by preventing users from reselling their software, Apple (and the Google Play Store) are probably violating EU law on this matter.

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I do hope EU gets on top of Apple/Google/Netflix/HBO/etc soon. It's supposed to be One Market, yet these all impose territory restrictions where content in Spain is not necessarily available in France and vice versa.

They're working on it: https://en.wikipedia.org/wiki/Digital_Single_Market

Note that the issue is rulemaking, not enforcement. The Single Market is a statement of principle, not a legally-applicable regulation, and needs specific rules to be made to put it into effect in different markets.

I would also add that the original intent was to remove government-imposed barriers to trade between the members (elimination of duties, regulation, etc). Whereas the unavailability of certain content based on location is almost certainly the result of a contractual arrangement between content makers and distributors rather than a government-imposed limit.

The scope of the Single Market is broader than that - it includes standardization of weights and measures, standardization of product names, etc. - rules that apply to private companies, and are meant to break down extra-legal obstacles to trade.

> The scope of the Single Market is broader than that - it includes standardization of weights and measures, standardization of product names, etc

Well historically individual states had their own regulations regarding weights/measures and product names, and that authority was transferred to the new market when it was created. These types of regulations ensure a level playing field between buyers and sellers, and are an important function of any regulated market. You know what you're getting when you buy a 750 mL bottle of Chateauneuf.

It doesn't necessarily follow that the maker of the Chateauneuf ought to be required to distribute it in a particular geographic territory.

> It doesn't necessarily follow that the maker of the Chateauneuf ought to be required to distribute it in a particular geographic territory.

Exactly. There are some awesome products that I can't buy in the UK, because no-one imports and sells them, that are available in France etc., and vice versa. Of course I'm free to go and buy them myself and bring them back without duty (for the next couple of years at least, after that, on vera).

But this isnt about requiring Chateauneuf to do anything, its about restrictions on what people who buy Chateauneuf can do with their bottles, where they can take them and who they can sell them on to.

It doesn't necessarily follow that the maker of the Chateauneuf ought to be required to distribute it in a particular geographic territory.

True, but the maker of Chateauneuf cannot prohibit a reseller from exporting its products to that territory either. That content-providers have been able to prohibit this, is only because of copyright. And since copyright is a government-granted monopoly, it does follow that the EU can use its monopoly grant to enforce that same single-market principle for digital content.

In some countries it is government-imposed, in the sense that national authorities exist in law, which will hoover up royalties before distributing them to creators and performers. This requires that any performance or distribution is recorded by (and paid to) such authority. At the moment, if an entity in the Italian market shows a French movie to Italian audiences, the Italian authority collects royalties before sending them to the registered owners of such rights; but what happens when a German entity shows the same film to Italian audiences? Does it pay Italian authorities or follow German rules?

That's the sticky point from a legal point of view, which needs European legislation and cooperation from all involved parties (investors, producers, distributors, streamers etc) to be resolved. Since the industry benefits from market segmentation though, they are dragging their feet. For example, it's usually better to sell the same film to a different distributor in each country, rather than a single one serving all markets - 28 smaller paydays will often tally up to levels that one single Euro-wide agreement is unlikely to reach; and some films will do well only in certain countries, so might be penalized at EU level.

I don't quite see how this is different from, for example, sales tax.

Or, actually the status quo: if you're a Polish company organising a music festival in Italy you follow Italian law.

That principle won't change just because it's a streaming service, for the obvious reason that anything else would lead to content distributers shopping around for the cheapest jurisdiction.

Regarding the distributers' wish for market segmentation: That's a perfectly understandable reason, and it will become illegal rather soonish. Sure, you can chose you customers. But you won't be able to make their nationality part of the equation much longer.

The public will profit rather obviously. Personally, I don't even care about any changes in pricing. Most annoying are companies segmenting the market along borders, and then never actually signing a local distributor. Or somehow only selling the translated movie etc.

One caveat for practical reasons will be sports rights. It's just not possible to set a single price for, say, the British Premier League games that works everywhere: either it's but a fraction of today's prices, or nobody outside the UK would consider buying a subscription*

* UK example for demonstration purposes only. Will not be implemented. Search for better examples underway.

> I don't quite see how this is different from, for example, sales tax.

That's a good example, and that too is a complete mess in the EU at the moment (google vatmess)... Copyright legislation has even more burdensome vagaries to deal with, like identifying authors, owners and distributors (in some countries rights can be alienated, in others they can't, etc etc) and get approval from all parties. This is why streaming services are so slow to expand in the European market.

> market segmentation: [...] will become illegal rather soonish.

That's a very optimistic view. Creators have very powerful lobbies, even the most heart-hardened bureaucrat will melt at the prospect of spending a few hours with Charlize Theron or Mick Jagger.

that's an optimistic way to frame the situation; there's heavy opposition from the content industry to limits to geoblocking, and unsurprisingly the industry seems to have support within the commission (Oettinger at least - perhaps the fact he now left the Digital Economy and Society position helps).

I'm not confident at all they'll be able to completely ban geoblocking in one go. Hopeful they will at least poke some holes in it this round. Most parts of the single market needed a couple of revisions of a directive (quite a few years removed) before liberalizing a particular market fully..

> Oettinger at least - perhaps the fact he now left the Digital Economy and Society position helps).

It certainly has lowered my blood pressure–he's now in a much more important position. But that means that people will actually stop him if he continues to embarrass himself in the way he previously did.

There'll be exceptions for sports broadcasts, and maybe other content where there is a reason legitimising a difference in prices. For example: a french 24h news channel may be worth 20 Euro in France, but is more of an "yeah, all right, why not" buy for someone in Austria trying to freshen up his language skills.

Funny how "let the market decide the price" is suddenly a much less attractive option when it means making way less money.

Are French newspapers also suddenly a lot cheaper when sold in Austria? Of course not. They're more expensive in fact, because of transport and the cost of stocking a relatively unpopular item.

Now, these two costs don't matter for digital/streaming media. So imagine that they are negligible for French newspapers, too. Would they be sold in Austria for super-cheap, with just a slim margin on the price of paper they're printed on? I kind of expect the price to be roughly the same, actually.

The only reason that digital/streaming media get to pretend to be "different" is because they started out with the technological means to enforce market segmentation before regulation got wind of it. And that ability is incredibly profitable, to the detriment of the consumer. Which is why we regulate it. And now they don't want to give back something they really didn't have any right to in the first place.

Note that I'm not claiming either side of whether these streaming media should be the expensive local price everywhere, or the cheap everywhere-else price. Just that the fact that the market value of something differs extremely between regions, is an argument for regulation of market segmentation, not against.

Don't you think the most likely outcome of this is the far majority of older media titles will just no longer be available in the EU indefinitely?

It will be unreasonably difficult and just not worth it to track down and negotiate with all the various the owners for each territory for most older titles.

Why would that happen? I'm pretty sure that whoever the owner of those rights are, they want to make money out of them.

You'd think so, but the BBC found similar problems when launching their streaming services.

Annoyingly I can't find the link, but IIRC the BBC originally looked into making everything it had ever made in its giant archives available to stream. Even for the content the BBC produced and owned internally, which is a huge amount, they determined it simply wasn't possible to offer the full BBC back catalog all the time on their service - tracking down the various rights holders, actors, and other parties to the content to renegotiate for streaming was an impossible undertaking. A real shame - a readily accessible public database of all of the BBC's content would have been incredible, especially when so much of it was paid for by UK tax payers.

The last Labour government in 2010 was looking at options to legislate to absolve the BBC of these responsiblities, but sadly it didn't go anywhere. This is absolutely a problem that will need legal changes to fix for old content, realistically.

The simplest fix might be a mandated license for streaming old content where the royalties go to a collection agency and can be claimed by the rightsholders when they finally show up.

Maybe limit the collection time as well, so e.g. Any funds that have been sitting without a valid claim for more than a year go back to the BBC.

Except there might be a lot of rightsholders in the different territories. Figuring out how to disperse the revenue could be very difficult.

It is a weird idea to steal art from people and force them to sell it to others.

Compulsory licenses have precedent in the music industry.

Rights aren't "sold", they are only licensed, and almost always for a limited time.

idk I haven't had a very hard time buying distribution rights for an unlimited time period for video games.

No government should force that. It should be up to the company on where it's goods are sold etc.

Sure, if your only goal is to maximize profit extraction and wealth consolidation.

Corporations have rights, true. But consumers also have rights.

For example of a small thing that's discussed by the EU with regards to this, if I get a netflix subscription here then go over the border I can no longer watch what I have even already downloaded. Netflix should not have to stop someone watching a show just because they went a bit further down the road.

If the government is going to act as hired muscle for the copyright industry, then it should have at least some room to dictate the terms.

The great thing about the law is that it can be whatever we collectively decide it to be.

And considering that companies don't have any moral rights, you need to proof that affording them such power positively affects actual people.

Former Netflix employee here.

I do hope the EU gets on top of Content Owners soon. In my time at Netflix, we often worked hard to negotiate global content deals; however, it's far more lucrative for the content owners to sell for each market individually. I suspect that the other players in this space feel the same way; all of them are held hostage by the content owners.

That sounds a little better than the ridiculous Autodesk decision, however it sounds trivial to circumvent by simply putting a 'term of license' clause in the EULA.

I'd go so far as to say I don't think EULAs should be considered a valid legal instrument.

In the EU it is impossible for normal consumers to sign away most rights intended to protect the consumer.

Misleading the consumer in any way about that can even end in fines.

>> I'd go so far as to say I don't think EULAs should be considered a valid legal instrument.

Agreed. The EULA is not even mentioned at the point of sale. Most notably, the company that sold the software often has no idea who has entered into such an (alleged) agreement with them. I thought acknowledgement was a critical part of contract law, but somehow clicking a virtual button in private is claimed to qualify.

contract-wise it seems from case law they're on pretty steady ground. Of consideration + capacity + intent, capacity is probably the trickiest when you're not in person with the counterparty.

I think the more interesting angle of attack is by calling this a contract of adhesion, i.e. saying that the vendor is using their superior market position to force a long and disadvantageous contract on customers.

At the point where EULA was being invoked for many or most buyers, you could probably file a class action claiming the product was falsely advertised (i.e. it costs not $9.99 but $9.99 plus 100 hours of legal fees).

The uniform code of commerce is very concerned about terms hidden in long contracts, which is the reason some parts of long EULAs are in caps.

What if I say aloud "No, I do not agree to the terms of this EULA, but I'm going to click this button in order to install the software anyway." How about that? You may say "but clicking the button indicates agreement" to which I say it does not unless I actually agree to the terms of the EULA. The EULA is the only thing defining the meaning of clicking the button...

Lets suppose a techo-archeologist in 2100 finds an old PC and some MS windows install disks. Wow! he says, I've found a major artifact from a hundred years ago in the heyday of the internet! He gets it to power up and loads the disks in. He finds the EULA and takes pictures and uses OCR software to document his findings and then says "Huh, I wonder how anyone would ever read all that or agree to it, I sure don't agree with it, but I've got my research to do." And he clicks "I agree". Did he just enter into a contract? With whom? Suppose Microsoft went under completely in 2075. How does this clicking a button equate to him entering a contract? It seems incredibly absurd to me.

It depends.

Law is generally meant to be "reasonable" and much depends on the particular facts.

He'd enter into a contract with whoever bought Microsoft's IP, presumably OracleApple or Teslabet. Old corporations never die, they just fade away.

Well, if you sign the contract and the contract is legally "fair" (i.e., you weren't coerced, nothing fraudulent took place, etc.), then it doesn't matter what you say. The EULA isn't the only thing defining what agreeing to the contract means. The general framework of contract law in your country defines it as well.

We can quibble over whether EULAs are enforceable contracts due to one reason or another, but you can't just say, "Well I don't agree with the meaning of the EULA, therefore I'm not bound by the agreement".

The contract should be signed before buying the software, not when a consumer has already paid for it or wasted his time and Internet traffic to download it.

Imagine if you bought something and then learned that you have to pay again to be able to use the item.

A contract should be beneficial for both parties. But EULA only limits consumer's rights without giving everything in exchange.

Most contracts limit a party's rights without giving everything in exchange.

It gives the consumer access to the software.

I agree that the fact that you only see them after the sale is a problem, though one that would be "solved" to some degree if every vendor could be reliably relied on to honor the terms that say "if you don't agree, return it to the vendor for a refund".

There are bunches of problems around EULAs, but the general concept of an agreement you must adhere to in order to legally use the product doesn't seem especially legally shady to me. Or at least not in the ways referred to by the commenter I was replying to.

If you don't agree to the terms of the agreement then you don't have an agreement.

Half the software I use has EULAs that were "agreed to" by some other third party.

And if you don't have an agreement, you have no right to use the software.

The execution of the EULA as a thing you don't get to see up front introduces problems, for sure. But I don't see anything blatantly illegal about an agreement that says, "you must adhere to these terms to use this software".

Define "use." What is it that I do not have a right to do? Look at other peoples' phone screens? I didn't agree to the iOS EULA. Can I listen to the music coming out of my partner's laptop? I didn't agree to any music app EULA.

>But I don't see anything blatantly illegal about an agreement that says, "you must adhere to these terms to use this software".

That is not an agreement. I often cannot agree to those terms, because I do not know what they are. And I will use the software regardless, because "use" means nothing specific unless we have an agreement on what that means as well.

EULAs are "agreements" that do not require agreement, that often bind someone to do something they cannot reasonably do.

Or yeah, what if I speak a language similar to english except the word 'EULA' means 'none of the following applies'.

Or what if I dance around in a circle reciting green eggs & ham whenever I sign anything?

Let me know when you find the court that is willing to hear these questions.

Unfortunately the 'had my fingers crossed' test from SCOTUS US v every 5 year-old was recently struck down.

Pretty sure that last one would go the other way, actually.

trey gowdy did say that james clapper only committed perjury after lying about the same thing 3 times. Fortunately congressmen's statements don't carry the weight of law.

You have cited class action and the uniform code of commerce.

If EULA contains mandatory binding arbitration and a no class action clause, both your ideas are dead in the water.

Per the SCOTUS contract law supersedes class action. Your idea for a class action is dead. Mandatory binding arbitration is not required to follow any law but the AAA. The arbiter may ignore the UCC. The UCC concerns are now dead as well.

Even the _legality_ of a contract itself probably does not stop mandatory binding arbitration: http://www.law.com/sites/davidmgersten/2014/08/01/arbitratio...

I'm not a lawyer nor a consumer law expert.

My theory of the case is that if the goods delivered were known to be unfit by the vendor, consideration was not met and the contract wasn't formed.

Some of these contracts waive the implied warrant of merchantibility. Not sure which jurisdictions allow that. Not sure if the warrant of merchantibility is still 'implied' if a specific use is advertised and the product isn't fit for that use.

I suspect the unconscionability test in contract law is stronger in contracts of adhesion.

actually ignore the above. I just read your law.com/davidmgersten source and I clearly have no idea what I'm talking about.

To quote my law professor on EULAs in the EU: "I never read them. They are either fair, or unenforceable".

My uneducated opinion is that it wouldn't matter, in the same way that you cannot sign away your right to warranty in the EU.

Shouldn't be, but most definitely are as a matter of settled law in the US. :(

This is a good test of democracy surely. What proportion of the population want EULAs, want not to own stuff they bought? Yet the USA as a supposed democracy has laws that contradicts that position with arguably no benefit to society.

EULAs in EU are a joke. A "normal" consumer cannot even sign away most of the consumer protection rights even if he wants to.

A funny joke, like, do they make EUlaugh?

In the EU, that doesn't work. Specifically because none of the conditions of the EULA apply to the sale unless you were presented it before you paid for the product. If it's possible to purchase the product in such a manner where you are not presented the EULA before you bought it, you can ignore a lot of it's conditions.

its conditions

If a seller wants to impose some conditions of course he should do so before selling his product rather than try to deceive a customer after purchase. Only a dishonest seller would do such a thing.

IMO any company that is using words like buy, sell, sale, purchase, get, of a product and not specifying they are selling only a _license agreement_ are committing a heinous fraud and should be fined no less than a years median profit (or, let's say, 5% of revenue as an underpin).

Sure, advertise "get license to use Wandows for a limited period, further restrictions on use apply" but if you say "get Wandows for $100" then you sold it and no EULA or other additional restrictions can apply; and no, small-print doesn't count.

U.S. statute is supposedly the same. A valid contract involves consideration from both parties. After you've bought something the contract is set. One party can't subsequently say, "oh in addition you have to agree to this."

Unfortunately law isn't what got written into statute or precedent yesterday. Law is what happens to you in court today.

Please stop talking about "valid contract" or "consideration" here. The EULA almost certainly contains a provision on mandatory binding arbitration.

The validity of the contract may be ignored.

Under "BUCKEYE CHECK CASHING, INC. v. JOHN CARDEGNA, ET AL." and "Rent-A-Center West v. Jackson" mandatory binding arbitration overrides a challenge to the validity of the contract. The arbiter will decide if the contract is valid.

Under "Hall Street Associates, L.L.C. v. Mattel, Inc." the arbiters "manifest disregard of the law" is not enough to overturn an arbitration award against you.

So, no, a valid contract is not required, so long as an otherwise invalid contract contains an mandatory arbitration provision, the "contract" will be decoded by mandatory binding arbitration. If you are a human vs a corporation, your win rate is 0.2% in the national arbitration forum.

A purchase is not required to be locked into a mandatory binding arbitration agreement, because a whether you'd made a purchase would be part of the validity of the contract.

How does one avoid being locked into a mandatory binding arbitration agreement? For example, suppose I run a website that contains a TOS such that it requires visitors to deposit into my bitcoin account scaled by marketcap and a MBAA. When the Google crawler comes by, do I hit the jackpot?

Well, I found this article which seems to present a case where the decision went against the idea of "drive by" mandatory binding arbitration agreements, so I don't think my get rich quick scheme will work.

Knutson v. Sirius XM Radio Inc. http://www.blankrome.com/mobile/index.cfm?page=resource&&vie...

Per Rent-A-Center:

> There are two types of validity challenges under § 2: "One type challenges specifically the validity of the agreement to arbitrate," and "[t]he other challenges the contract as a whole, either on a ground that directly affects the entire agreement (e.g., the agreement was fraudulently induced), or on the ground that the illegality of one of the contract's provisions renders the whole contract invalid." Buckeye, 546 U.S., at 444, 126 S.Ct. 1204. In a line of cases neither party has asked us to overrule, we held that only the first type of challenge is relevant to a court's determination whether the arbitration agreement at issue is enforceable. [...] But that agreements to arbitrate are severable does not mean that they are unassailable. If a party challenges the validity under § 2 of the precise agreement to arbitrate at issue, the federal court must consider the challenge before ordering compliance with that agreement under § 4.

Could one not attack the agreement to arbitrate on the grounds that no binding agreement could ever have been reached in the circumstances? Even severing the arbitration clause from the remaining of the contract, it seems it could be argued that there was no agreement to arbitration, as there was never any intention to enter into an agreement of any kind (I'm assuming the claimant would argue that they knew the EULA was not valid as a contract and thus ignored the terms). This seems especially so as the FAA specifies "[a] written provision in [...] a contract" - there was never any intention to create a contract by at least one of the parties.

Even if the argument does not hold, framing in such a way would require the courts to consider it (the validity of the agreement to arbitrate) rather than it just passing it directly to the arbitrator.

Perhaps that's just a hopeful reading of the case; it just seems absurd to me as an English lawyer (degree, non-practising) that the arbitration clause can be plucked out and enforced when the contract itself is a farce.

  The EULA almost certainly contains a provision [..]

That's begging the question. The question is whether any provision in the EULA is relevant at all.

A surprise contract that most don't pay attention to and severely limits the rights of the target human is an American standard.

Also in most business contexts employees have no right to sign contracts on behalf of their employer.

What does the European ruling imply for services like Steam, that will sell you a game license-key, but in a way where that key is bound to your particular Steam account? Does it force such keys to be transferrable in Europe? Or force the licensing server to have a "transfer of ownership" API such that it will revoke one key and generate another for the new owner?

In principle it could. It depends on how much of this is followed by governments or interested third parties (through courts).

For example many countries started to require that mobile phone numbers should be transferable between carriers and mandated the carriers to build an infrastructure for this.

I think that this is the big question! I actually started an auction site based on allowing EU users to resell their Steam games (and ios/google play apps) b/c I think due to the Oracle v UsedSoft ruling Steam users should be able to resell their Steam game keys. However, b/c there is no mechanism to transfer keys (or ios apps) between users, there wasn't much my startup could do.

There was an attempt in Germany to sue Steam to allow users to resell their entire Steam account(1). However, that effort failed. I think they should have pursued a case that focused on allowing Steam users to resell individual games. There may still be a court case that could be won that focuses on reselling the individual games keys between users.

I think in the EU though there could be some debate about whether games are considered "software". Only software is covered by Oracle v UsedSoft as I recall.

(1) https://theundisciplined.com/2014/03/20/losing-steam-is-used...

I think you may be reading too much into all of this.

Oracle sued alleging copyright violation. The ECJ ruled that what UsedSoft was doing was not a copyright violation.

Applying that to Steam, it would imply that if I sold someone my Steam key for a game I had purchased I would not be violating copyright. It does not necessarily imply that Steam has to make or allow the key to work for the buyer. That's out of scope for copyright law.

The UsedSoft v Oracle case is specifically about and whether or not a licensee can resell the software they have purchased.

"On 3 July 2012, the ECJ handed down its landmark decision in UsedSoft GmbH v Oracle International Corp (C-128/11), ruling that the owner of copyright in software cannot prevent a perpetual licensee who has downloaded the software from the internet from selling his ‘used’ licence. This decision has significant implications for the software and other digital industries." [1]

[1] http://www.linklaters.com/Insights/Publication1403Newsletter...

Yes, the copyright owner cannot prevent the licensee from selling the license, but the copyright owner also does not have any obligation to continue hosting a cloud service, to authenticate the existing license on a different account using their cloud service, or to otherwise assist the licensee in transferring the license.

But they might be under an obligation to not build licensing infrastructure into their software that bound licenses to accounts in the first place, in a way that technically prevented users from transferring them. That could be seen as a form of DRM restricting users from reselling something they're legally able to re-sell, and the courts would Not Like That, for the same reason they don't like things like warranties not transferring on resale.

Most mobile apps have moved to a model with in-app purchases. I wonder if this rule applies there. If a game is free, but I spend $1.99 on 500 gold coins (in-game currency), does the law require that I be able to sell the gold coins?

What about if I use them to buy virtual non-consumable items (like permanent character upgrades)?

I assume the law wouldn't apply to consumable items (like spending 50 gold coins to speed up the construction of a building) because it doesn't result in any in-game item I own.

I'm also curious about reselling in-app purchases. The Oracle vs UsedSoft ruling only applied to "software" as I recall. I think if you had paid for in-app purchases to unlock premium features of a product there could be a case to made that you should be able to resell that free app with the features you paid to unlock.

As far as reselling unused in-game currency like gold coins that speed up construction of a building, I personally think it would be cool to see a secondary market pop up. However, I don't know if that would be covered by UsedSoft v Oracle.

The big question is whether individual Steam games should be able to be resold in the EU due to Oracle vs UsedSoft. If so, that's a potential multi-billion dollar secondary market that doesn't exist yet.

Edit: Sidenote, I actually started an auction site based on the idea of reselling Steam games (and ios games) several years ago based on the UsedSoft v Oracle ruling but due to these companies not allowing users to transfer licenses between each other, my startup was not workable.

Generally speaking, this would be a very poor result (from the perspective of said game owners). Pretty much all of us would have our credit card processing contracts revoked, because in all "regular" contracts (e.g. Stripe, Braintree, etc. etc.) you may not use their service to sell goods which can be "readily resold for cash". If that was the legal result, these applications would probably need to stop accepting EU credit cards.

Italy here. Many owners of small shops and small restaurants go to supermarkets to buy stuff they resell because sometimes their dealers don't deliver all they need or not often enough: being small put those shops to the end of the list.

I wonder if the contracts are the same here or if processors just don't want to know because they still make money twice from any of those sales.

That, Or they change their terms to suit EU laws..

I think that this distinction is largely becoming irrelevant in the cloud era. Most software is sold / licensed on a term basis these days, and honestly the industry is healthier as a result. App stores are really the only remaining vestige of "buy once, use forever" -- and I'd guess that the EU isn't interested in going after it thanks to the small dollar amount and huge number of companies who benefit.

Software was never truly a "product" in the same way that physical goods are -- it was always a service thanks to the maintenance and continued investment required. It may have been better for the consumer in the short term to "buy" software, but a subscription model allows for more predictable cash flows to the developer of the software (which keeps software vendors in business -- and their software supported).

As a consumer, I will never purchase subscription software. If a new version has a feature I need or because of OS upgrade, I'll purchase the new version or an upgrade if offered.

The physical goods model for software is much more consumer friendly. You don't need every single upgrade, you can choose how much to spend on an ongoing basis. If an "upgrade" is less suitable for you than the original, you can skip it or look for a substitute.

It's scary to contemplate a world where the software you rely on every day can change out from under you without your control or even knowledge. See the animosity aimed at Windows 10 updates.

We're in that world, to a large degree. By default, phone apps auto-update. OSes auto-update. Websites arbitrarily change behavior, as suits their owners. All but the last can be disabled (mostly), but it's still a pain.

The industry is healthier as a result? I question that rather strong claim.

Consider as a counter point, I can still pull up cartridge based games on my old consoles and they work. Rather well, actually.

Now, that does speak only to the "health" of the software I run. It also ignores the implications of this world we are in where everything is fully connected to the internet.

To your point of healthier for the developers. Do you have numbers to back that up? Certainly gave companies a more reliable cash flow that are licensing software. But... conversely, this gave consumers a burden in the form of constant cash flow out.

To add to your counter-point, the consumer also gets rent-seeking companies locking the consumer into a proprietary system to extort you to pay more, more often(eg:Intuit). That is, if the provider doesn't shut down the platform b/c it isn't profitable enough(eg:Cubby), new investors ruin the product or they go out of business for myriad reasons.

It would be interesting if food was sold this way. Instead of an upfront purchase of atoms and molecules, you license their use and pay a monthly fee. It would be a bit hard to tell which exact atoms came from each food consumed with current tech, but one could do estimates of the expected half-lives of various atoms and molecules in the human body and have people agree to pay according those rates. This would definitely allow for more predictable cash flows to the farmer and the rest of the food processing and delivery system.

Until you reach a point where most of your atoms come from them, and you are their property now. Great! Why do people here propose the most obtuse and shitty dystopian scenarios for everything?

Sorry, forgot about Poe's Law[1] for a moment there.

[1] https://en.wikipedia.org/wiki/Poe's_law

Because they didn't propose anything, they outlined an interesting satirical scenario.

Bechtel had a neat scheme where they bought all of the water rights for 40 years in Bolivia for $2.5B -- with a contract that guaranteed them a minimum of 15% return each year.

Citizens revolted when it was learned they may need to obtain a license from the government to collect rainwater from their roofs.

https://en.wikipedia.org/wiki/Cochabamba_Water_War

The James Bond writers are really getting lazy.

s/industry/some software vendors/

The loss of perpetual right to use is a devastating and nasty impact on the industry to customers. I've been involved in big hairy nasty disputes from massive vendors of cloud services -- they have you over a barrel in the way the IBM did in the bad old days.

Healthy for whom?

Not for people who don't want software to change out from under them. This includes a large number of people and cuts across just about all industries.

Not for people who want portability. "Cloud" services have a horrid habit of holding your data hostage. There's usually lip-service to portability, but for any moderately complex application, there's nothing available to load the data in to.

Not for people who are not connected 24/7. Sure, this number shrinks all the time, but there will always be times when we're offline.

Not for people who consider their data sensitive. Windows 10 should probably be considered malware by anyone who has a nondisclosure agreement with teeth and works on sensitive documents.

It is absolutely better for businesses creating commercial software. Revenue is so much easier to handle.

Physical goods need maintenance and continued investment sometimes too, not seeing a differentiation here between software and other goods. Could you perhaps expand on hire you perceive then to be different enough to warrant additional protections?

It does not work like this in the EU. Most EU countries don't have a case law based ("common law") system, for starters.

It's true that the EU is not ruled by common law. It does not follow that rulings by the Court of Justice have no effect. The ECJ interprets the laws as written, and in this particular case it decided that software can be resold. That is the status quo in the EU until (a) EU institutions change the law, or (b) the ECJ decides to revisit this and comes to a different decision.

Here's the ruling: http://curia.europa.eu/juris/document/document.jsf?docid=124...

Are european secondhand copies resellable in the US?

And if they are, once I've bought the EU copy in the us, can i resell it again?

Probably. In general, the first sale doctrine applies to copyrighted works that exist on a physical medium. https://en.wikipedia.org/wiki/First-sale_doctrine

> if you buy Apple's Final Cut X for $299, you should be allowed to resell that software

If you do resell your "copy" of the software, does the EU law make the company accept new-user registrations/activations? Does it require them to also send out new updates to the non-original owner?

I think for software companies to comply with the EU ruling they would need to have a mechanism for transferring registration keys from one user to another. After the original buyer transfers their key to a buyer on the secondary market, the original buyer would no longer have access to the software.

It's been awhile since I read that Oracle v UsedSoft ruling, but I think that the new owner is entitled to whatever updates are offered. If they were paid updates, (like upgrading from v7 to v8 for $20) the new owner would still have to pay the upgrade fee, of course. But if they were free updates, then they would be free to new owner just as they would be to the original owner.

From a software seller's perspective, I don't see the issue with this. If you sell one license of your software to a user, you have accepted that one user will consume one license of your software. If that license gets transferred to a different user then the original user has relinquished their license, which has resulted, still, in only one license getting consumed by one user. When you sold the software you committed to updating that one license of software that you sold, what does it matter who is using and getting the update for that single license? (Of course you don't have to give free updates to any users whether they bought your software on the secondary market or directly from the software developer.)

If you look at ProTools, they actually let user transfer licenses between each other. The licenses are stored on an iLok and users can transfer keys between one another. It's great because users can sell used audio plugins for protools or the actual protools software itself to each other. https://www.ilok.com/#!home

I would think you can sell a copy of the software but if it somehow doesn't work on the buyer's computer, that's too bad. Surely the law won't require software vendors to provide ongoing support to all future owners. Maybe you'd have to sell your whole computer and software together for it to keep working.

Like if you buy an iPad with your name engraved on it, then when you sell it, the buyer will be stuck with your name still on it - Apple isn't obliged to re-engrave it with the new owner's name.

FCPX doesn't work that way. If you purchased it on its release date 5 years ago, you essentially bought a subscription of free updates that continue through today. Many of these have been major releases with major new functionality, not just minor bug fix updates.

This is very different from the old system of buying something like Word (or FCP 7) in a box, getting a few minor updates to fix bugs, and when the new major version came out, you had to pay at least an upgrade fee, if not full price.

It's not a question of whether FCPX is a good value. If an EU citizen pays a one-time fee for a lifetime license of FCPX they are supposed to be able to resell that software according to the Oracle vs UsedSoft ruling. Apple has not built a mechanism into their App Store to allow users to transfer licenses to one another, which means they are not complying with the EU ruling.

This applies to every software product in their store (and Google's Play Store) that is bought for a one-time fee in exchange for a lifetime license in the EU.

It doesn't appear to me that EU citizens are paying a one-time fee for a lifetime license. It appears to me (though I'm no lawyer) that they are paying a one-time fee for a subscription. I don't know whether it's time-limited or lifetime, but it is a distinction with an actual difference, and may affect how EU law regards it.

The whole "lifetime license in exchange for a one-time fee" idea in the Oracle vs UsedSoft case comes from that case trying to determine what "ownership" means in regards to digital products. In Autodesk vs Vernor, Autodesk was claiming that if you paid $3,000 for license of Autocad, you don't actually own that software you are just "licensing" it and thus the first sale doctrine doesn't apply, so the customer can't resell the Autocad product they bought, even though the customer paid a one-time fee for a product they "own" for life (this was before Autodesk moved to a subscription model). Autodesk claimed this b/c they included in their EULA that the customer was merely licensing their product and didn't "own" it. The US supreme court eventually agreed with Autodesk.

In the Oracle vs UsedSoft case, the EU court was taking on this question of what does it mean to "own" a digital product vs "licensing" a digital product. That court came to the conclusion that if you paid a one-time fee for a lifetime license of a digital product then you own that product (no matter what the EULA says) and the first sale doctrine applies, which gives you the right to resell it. On the other hand, if you were paying a fee that only gives you access for a set amount of time (a subscription), then you would just be renting (or "licensing") that product for a certain amount of time and thus wouldn't own it, which means you can't resell that product because it isn't covered by the first sale doctrine.

A subscription expires and would need to be renewed. Your license for FCPX never expires. Since you paid a one-time fee for a license of FCPX that never expires (a lifetime license) your copy of FCPX would be covered Oracle vs UsedSoft in the EU and you could resell it. Paying a one-time fee for something is not a subscription.

If you buy a car with cash, you own that car. You can own/use that car for the rest of your life or you can resell that car. If you lease a car you have a subscription that you must renew to keep using that car and you do not have the right to resell that car. That is basically how the Oracle vs UsedSoft sees software products in the EU.

If a product is rented for a long term then maybe a consumer should be able to pass a right to use it to someone else. Otherwise this can be used to circumvent the law.

> It seems to me that by preventing users from reselling their software, Apple (and the Google Play Store) are probably violating EU law on this matter.

No actually; the law says it's _allowed_ to resell software, but it doesn't say companies are _required_ to make software transferable. If they did make it mandatory, it'd be the end for digital-only software like the app stores, Steam, etc.

http://www.linklaters.com/Insights/Publication1403Newsletter...

> On 3 July 2012, the ECJ handed down its landmark decision in UsedSoft GmbH v Oracle International Corp (C-128/11), ruling that the owner of copyright in software cannot prevent a perpetual licensee who has downloaded the software from the internet from selling his ‘used’ licence. This decision has significant implications for the software and other digital industries.

Software vendors often prevent you from transfering the license from an old PC to a new PC. I don't know what's the legal ground for that (outside of OEM product). For instance Microsoft will not let you activate an Office 2010 license anymore.

I came here to ask about things like this...

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