141–150 of 319 posts
Some context for this consequential decision: http://www.npr.org/2017/04/06/522826514/supreme-courts-decis...
Edit: moved long commentary from FOSS blog to separate thread:
Earlier quoted context omitted.
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…
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…
Law is generally meant to be "reasonable" and much depends on the particular facts.
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 softw…
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.
In short, the sale of a product does not allow you to control what is done with the product afterwards through patent law. I'm assuming this is almost similar to attempts to use copyright law to stop the sale of products on the grey market. http://www.bipc.com/court-rebuffs-attempt-to-use-copyright-l... I do wonder though, if they changed the underlying software on the cartridges they would get into trouble. I do not…
I'm a little surprised that Ginsburg dissented here, and also dissented from Kirtsaeng v. John Wiley : naively, she's "liberal", and (at least in my bubble) being "liberal" is associated with wanting less strong IP protection. But I see also that she wrote the majority opinion in Eldred v. Ashcroft , saying that the 28-year extension to copyright terms was constitutional. What's the right way to understand her legal…
> she's "liberal", and (at least in my bubble) being "liberal" is associated with wanting less strong IP protection Hollywood is pretty well known for being liberal.
In short, the sale of a product does not allow you to control what is done with the product afterwards through patent law. I'm assuming this is almost similar to attempts to use copyright law to stop the sale of products on the grey market. http://www.bipc.com/court-rebuffs-attempt-to-use-copyright-l... I do wonder though, if they changed the underlying software on the cartridges they would get into trouble. I do not…
I was under the impression that John Deere's restrictions were licensing-based. But maybe they rely on copyright as well?
Can someone clarify one part: >The other option is to buy a cartridge at a discount through Lexmark’s “Return Program.” In exchange for the lower price, customers who buy through the Return Program must sign a contract agreeing to use the cartridge only once and to refrain from transferring the cartridge to anyone but Lexmark. >As a result, even if the restrictions in Lexmark’s contracts with its customers were clear…
Yes, assuming the contract was valid. Lexmark could in that case sue their customers that sent cartridges to a re-manufacturer. The only one with a relationship with Lexmark is their customer, so that's the only entity they could sue. (However, given that this isn't a case involving Lexmark and a customer, the court didn't rule on that contract, just acknowledges the possibility.) "If the patentee negotiates a contra…
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 softw…
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…
When you can cite Lord Coke in your opinion, I guess it's practically mandatory to do so. > As Lord Coke put it in the 17th century, if an owner restricts the resale or use of an item after selling it, that restriction “is voide, because . . . it is against Trade and Traffique, and bargaining and contracting betweene man and man.” 1 E. Coke, Institutes of the Laws of England §360, p. 223 (1628)
Semi-off-topic: I've noticed that Coke's writings are a bit more similar to "modern English" than other things I've read written in the 1600s. This surprised me, because he was a judge and probably wrote in formal language for the time. Formal language, to me, seems perpetually set back to the way people talked about 60-100 years previously. Thus you'd expect Coke to sound like he's writing in the 1500s, but instead…
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 softw…
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…
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.