Google Is Forbidding Users From Reselling, Loaning Glass Eyewear | Hacker News Reader

Google Is Forbidding Users From Reselling, Loaning Glass Eyewear

wired.com

40 pointscrgt44 comments

I see a bunch of folks confusing first sale doctrines, contract law, etc here, so let me give a very short generalized primer:

1. The first sale doctrine is exhaustion of a single right of the exclusive copyright rights. In particular: It states that the right to restrict distribution[1] terminates upon first sale. It's codified at 17 USC 109, and states: "... the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. "

As mention, this is exhaustion a very specific right of copyright, and applies to copyrighted works. In this case, that would be software. It has literally no bearing on a contract as part of the sale of goods, or whether you can sue for breach of that contract. It is a defense to copyright infringement.

To whit:

If I sell you a book, as part of a contract, and that contract says "no resale", and you sell it, the first sale doctrine would probably[2] prevent me from winning a lawsuit for copyright infringement but not prevent me from winning a lawsuit for for breach of contract.

2. Sales of tangible goods in the US are covered by the UCC (uniform commercial code). Every state has passed a version of the UCC (though not all are on the same revision, for this discussion, it doesn't really matter).

The UCC lets you freely contract for almost anything. It fills in and has default terms when not stated, requires some contracts be in writing, etc, but there is generally nothing that prevents you from doing something like preventing resale of an object. You can argue it's unconscionable to a court, or you can argue it violates some other law (antitrust, whatever), and thus the court should not enforce it but in most cases, it'll be a valid and enforceable contract on its face. In general, if you have a legal right to do something, you can validly contract to forgo that legal right. For example, you can promise to not marry anyone until age 30, promise to marry someone in exchange for money, etc (Neither of these would be UCC contracts)

3. As a final note, for sales of UCC goods, there is no additional consideration necessary for them to modify the agreement, only the general requirement of good faith.

I offer literally no opinion on the status of this particular agreement, or anything like it. The above is also not legal advice (among other things, i've left out exceptions, and merchant <-> merchant rules, and ...), just an attempt to clear up some common misconceptions.

[1] "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;" Note that "distribute copies" does not mean "make copies", it literally means "distribute" an already made copy. Reproduction is a separate right.

[2] There are some current cases (and past ones) making arguments that you can contract away your first sale rights. The problem with this idea is that as titled and written, 17 USC 109 is, IMHO, not an affirmative right (and thus something you could agree to forego, even though some cases hold it must be pleaded as an affirmative defense), but instead a limitation on the exclusive rights the owner has. It's even titled " Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord".

This is why the standard mechanism software companies attempt to use is to classify their agreements as licenses that do not transfer ownership, rather than sales that do. If you are not an owner, the first sale doctrine does not help you. Success varies in ability to convince courts they aren't selling software, but instead, licensing it. In the end, it may not matter if they can succeed by suing for breach of contract rather than copyright infringement :)

If you read the terms @http://www.google.com/glass/terms/ Specifically the 'Device Specific Addendum' at the bottom you can see that this restriction only applies to the Explorer Edition. I believe this article may be intentionally omitting this detail to create drama.

If you read the terms, in the non-Device Specific Addendum:

> You may not commercially resell any Device, but you may give the Device as a gift, unless otherwise set forth in the Device Specific Addendum.

So, nope.

Huh, oops... I wonder how 'commercially resell' is defined in this context. Can it be resold for non commercial purposes? Such as a private resale?

I found the same terminology in the Google Fiber ToS with respect to the Chromebook that comes with the service.

http://fiber.google.com/legal/chromebook.html

> May not commercially resell

Sounds like you can still give / gift / sell / otherwise transfer a glass unit to another individual privately. This all sounds completely normal.

The addendum for the Explorer Edition states: you may not resell, loan, transfer, or give your Device to any other person.

That's what the story is about, because there are no other editions of Glass.

I don't understand this reply. I was replying to the comment, not the story directly. The comment is referring to future editions.

After reading about a paragraph I assumed that it would only be fore the initial trail run going on right now.

Isn't development hardware is usually licenced as property of the supplier? eg. "A Perth man's house has been raided by police after he allegedly tried to sell a prototype of Microsoft's new Xbox gaming console" http://www.news.com.au/breaking-news/perth-gamer-caught-in-c...

This seems normal and precedented.

When they handed out free Chromebooks 860 days ago[1] they had the same terms.

Of course they also said: "Do not expose the device to water, moisture, or rap music." Not sure how we were supposed to take the rest of the message seriously...

[1] https://news.ycombinator.com/item?id=1987536

Isn't there a difference between limiting what you can do with a free Chromebook and limiting what you can do with something you pay $1500 to acquire?

I'd say the difference is a fairly underpowered laptop versus an entirely new form factor for a mass-produced computing device.

Edit: For underpowered, I meant the hardware for the CR-48, not ChromeOS. The hardware was unusably slow for me.

If you buy a thing, do they have the right to do this? Is there a difference between "purchasing a physical item" and "entering a contract where someone supplies you a physical item on specific terms"?

Surely there are consumer rights that protect us from this insane greedy abhorrent shit?

What fucking right do companies have over your property? Surely even free-market capitalists should be recoiling in horror over this massive shit that is being taken over consumer rights?

The market is only as free as the consumer.

Consumer rights also include not buying this POS and making a huge deal about it. If Google really wants to transform this industry, then they can buck up and not try to strong arm people into how they can use something they pay a lot of money for.

Also, if this is tied to your email address, people will simply create a dummy email, with fake information. Then when the time comes, they can just transfer the account along with the glasses.

A fake identity is less likely to have passed Google's selection process, and may be be difficult to verify when they go to pick up the device in person.

Also, the terms specify that Google is allowed to deactivate the device if they find you've given it to someone else.

Google's increasingly strident insistence that every interaction I have with their services is tied irrevocably to my real name is souring what is otherwise a very happy relationship. I love Android, Chrome, Gmail, Translate, and Search but I don't like having my real name via Google+ twisted up in my use of these services.

There are certain legal differences between 'selling a product' and 'distributing testing hardware'. It's not clear to me that classifying the Explorer Edition as the latter would hold up in court because of the method of distribution, but that seems to be the theory that Google is working under. And it's perfectly possible that it would hold up.

If it doesn't hold up, it has no legal force. Though they can still close your account and make you take them to court over the software side of things.

This is not the retail version.

This is a limited run that is meant to be tested by a small number of people.

And is remarkably similar to the CR-48, which had the same "do not loan, do not sell" provision.

I wouldn't pay $1,500 for the test hardware with this provision, but I'm going to withhold my hypothetical anger until Google does this with the consumer version.

I think the difference is in the contract agreement. The right comes from the user agreeing in writing to forbid doing certain things with the item. Given the fact that no one is being coerced into buying it I think the boundaries can be drawn pretty wide on those agreements.

I think the question is, is it reasonable to assume that if the user broke the contract, the seller could repossess the item. I would imagine it wouldn't be any different than if someone didn't pay their car payment to the auto dealer/bank. In either case the user and seller agree to actions which each will take over a set period of time.

In 20 years time, this thing is probably going to have some memorabilia value. I wonder if this provision makes it impossible to sell as a collector's item too.

This was explicitly stated in the rules for the #ifihadglass lottery in advance. I'm all for railing against the decay of first-sale rights, but this seems like a sufficiently limited case that I have no worries. I find the article to be sorely lacking in such details.

I wonder about the relevance of the recent Supreme Court decision that stopped publishers from trying to limit the resale of imported textbooks:

http://www.insidehighered.com/news/2013/03/20/supreme-court-...

But maybe someone with a better understanding of the law could help clarify the connection - if any?

With Google Glass you're signing a contract agreeing to specific terms. But when you buy a book, you haven't signed away any of your rights.

So why wouldn't publishers just make people sign a similar agreement if it's that simple?

Would you sign a contract to get a book?

I wouldn't pay $180 for a book either, but most people who buy textbooks don't have a choice.

Even if I did sign a contract to get a book, it would be very hard to enforce conditions like not lending or selling it to somebody (unless it was an e-book with unbreakable DRM).

That's not different from all the hardware that bears the inscription "ENGINEERING SAMPLE - NOT FOR RESALE," other than the fact that they're promoted to a larger public (read: not developers that have drawers full of obsolete engineering samples). Some of that hardware is not the same hardware than the retail version and is essentially obsolete as soon as the retail version comes out, due to a different BOM between the sample and retail version and the fact that the manufacturer does not want to support the prototype version with updates.

It doesn't make any sense for Google to restrict the resale of the retail version, but at this point in time, Google Glass is not a product that is generally available. If they keep that restriction for the retail version, now that is news.

I sincerely doubt Google will care if it's sold. They stated that you couldn't sell Google Wave / Voice / Gmail invites, yet they were all over eBay.

"Whether or not users will continue to be allowed to sell invites is unclear though, as Google Wave's terms say that users are prohibited from "Sell, trade, resell or otherwise exploit the Service for any unauthorized commercial purpose," though a number of Google Voice invites can also be found on the auction service."

http://mashable.com/2009/09/30/google-wave-invite/

I wonder whether one could do something similar to concert tickets, and allow resales at face value, but not greater. Louis CK did that for his recent tour, and there wasn't (unless I missed it) widespread outrage; rather, people were happy to keep tickets out of the hands of scalpers.

http://cashortrade.org

How does this not run afoul of consumer protection rights?

The issue I see here is that people were asked to submit entries to this contest because Google was trying to get product testing information from people who would actually use it... and in interesting ways. This guy is being disingenuous (and a douchebag IMHO) if he tries to sell it on ebay before he even has it in hand. He gives ethical consumers a bad name and should be taken out of the closed beta test. This is just like all the people/companies who mass purchase concert tickets the millisecond they come out and resell them at 1000% face value because of "free market" blah blah, but actually they created the artificial demand and increased the price by speculation.

I'd feel much better if they explicitly forbid users from wearing this eyewear around children, in public toilets, beaches, swimming pools, shop changing rooms, or anywhere else its use could be utilized to fulfill a perversion (this assumes they have the camera). So basically, probably means they can just wear them at home.

> Welcome to the New World, one in which companies are retaining control of their products even after consumers purchase them.

A joke, right? After Amazon's removal of books remotely from Kindles and all those iSomething from Apple, Glass is far from being the first one.

Just because the New World is already a year old, doesn't mean we can't welcome new people to it.

Makes sense. If what they want to do is index people.

This is what RMS has been preaching all along.

It finally makes sense now.

except it's not. and nonsensical invocations, like yours, just make skeptics of his find him even more delusional.

this is a restriction on tester hardware (so-called Explorer Edition devices), which were already only available to people who paid for the privilege of being able to buy them.

and please save any slippery-slope reply for another thread.

... paid for the privilege of being able to buy them.

Did they buy them or not?

https://en.wikipedia.org/wiki/First-sale_doctrine

Edit: upon further reflection, first-sale doctrine is around intellectual properties like books and music. I presumed there was a legal right to sell goods you've bought... but maybe not?

First sale is only about intellectual properties because it is applied to copyright. That is, it is necessary to grant you the right to resell something that contains copyrighted property.

For example, without first sale you couldn't sell a book you legally bought, because the author still has distribution rights over the story it contains. (That make sense?)

For physical items, there is not a government granted monopoly to compare.

sorry, when I said 'paid for the privilege of being able to buy them', I meant that literally.. almost like a purchase option.

people who attended Google I/O last year were given the opportunity to preorder an Explorer device.

I'm pretty pro-GNU. I bristle when people mischaracterize the GPL. I try to avoid closed source software. I have to make quite a few exceptions, but I try to stick with open source even when it's less convenient/harder to use. I don't purchase copywritten stuff that uses DRM.

I am unphased by this. This is a complete and utter non-issue until Google lays this down on the consumer, retail version of Glass. It would be malicious (not to mention completely idiotic -- I can't see why Google would ever want to kill the secondary market on a new platform they're pushing) of Google to do this for the final version, but they aren't doing that.

And I think it strongly mischaracterizes RMS to say that this is what he has been preaching all along. Maybe a small subpart, but I think his message is broader and far more important.

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