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Comment by teilo | Hacker News Reader

How did they get away with this? Did the 9th circuit court of appeals just throw out the entire Right of First Sale doctrine?

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No, they observed that First Sale never meant that content couldn't be licensed instead of sold, and applied the test from Wise, which basically says "if you call it a license and your contract treats it like a license, it is in fact a license".

Actually, that's not the test from Wise. Wise says the opposite, that even a severely restricted license does not thereby preclude a transfer of ownership on a copy, and thus the first sale doctrine must apply.

The MAI trio, three later cases, says that anything called and treated as a license is a license.

The district court ruled that Wise contradicted the MAI trio, and thus the older precedent ruled. Now, the 9th circuit is claiming that they do NOT contradict, but that MAI can be reconciled with Wise. My opinion is that this is sophistry on the part of the 9th circuit, simply because their conclusion in this case itself directly contradicts Wise. Wise ruled that calling something a license, and restricting its use, and restricting the rite of transfer in said license, cannot abrogate first sale. This court ruled exactly the opposite.

Neat, thanks for clarifying.

The case was, as usual, a lot more complex and a lot narrower than what showed up in the Slashdot summary. It involved a user who sold copies that were contractually supposed to be destroyed (or at least not reinstalled) after an upgrade.

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