SCOTUS: Patent Rights Over a Printer Cartridge Are Exhausted When It Is Sold • Hacker News Board

Re: SCOTUS: Patent Rights Over a Printer Cartridge Are Exhausted When It Is Sold

#231

Post by brlewis » Tue, May 30, 2017, 9:52 PM UTC

Tuna-Fish wrote: post #123

joshuak wrote: post #62

Earlier quoted context omitted.

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, 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.

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.

Re: SCOTUS: Patent Rights Over a Printer Cartridge Are Exhausted When It Is Sold

#232

Post by URSpider94 » Tue, May 30, 2017, 9:56 PM UTC

ChuckMcM wrote: post #200

URSpider94 wrote: post #182

Earlier quoted context omitted.

I've heard this point expressed by lots of people with regards to different products in the markets, i.e. "I would pay a lot more for the product if it did x." The fact that such a product doesn't exist tells me that either there aren't enough consumers like you out there to make a market at an acceptable price, or that consumers like you are willing to defect and buy a cheaper product, if it's cheaper by a large eno…

You are correct. I (and as I found out, many others!) have created a label for this effect, crapitalism. It arises from the bulk of the market preferring price over quality. When that happens, vendors that make a product for a lower price at the expense of quality take market share from vendors who maintain quality. The reduced volume at the quality vendor reduces their scale economics which puts still more pressure…

This is the basis for "The Innovator's Solution", and another word for it is "disruption". In the book, Christensen argues that existing suppliers target ever-higher quality (because they have the technology to do so), leaving room for "good-enough" vendors to undercut them and take away their volume product-by-product, meanwhile funding them to develop ever-better products.

Re: SCOTUS: Patent Rights Over a Printer Cartridge Are Exhausted When It Is Sold

#233

Post by bcrescimanno » Tue, May 30, 2017, 9:58 PM UTC

algesten wrote: post #197

touchofevil wrote: post #48

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 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.

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.

Re: SCOTUS: Patent Rights Over a Printer Cartridge Are Exhausted When It Is Sold

#234

Post by powertower » Tue, May 30, 2017, 10:00 PM UTC

touchofevil wrote: post #48

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…

> 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?

Re: SCOTUS: Patent Rights Over a Printer Cartridge Are Exhausted When It Is Sold

#235

Post by CamperBob2 » Tue, May 30, 2017, 10:06 PM UTC

sigzero wrote: post #223

algesten wrote: post #197

Earlier quoted context omitted.

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.

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

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.

Re: SCOTUS: Patent Rights Over a Printer Cartridge Are Exhausted When It Is Sold

#236

Post by kevin_b_er » Tue, May 30, 2017, 10:09 PM UTC

awinter-py wrote: post #96

phkahler wrote: post #77

Earlier quoted context omitted.

>> 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…

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...

Re: SCOTUS: Patent Rights Over a Printer Cartridge Are Exhausted When It Is Sold

#237

Post by ChuckMcM » Tue, May 30, 2017, 10:10 PM UTC

URSpider94 wrote: post #232

ChuckMcM wrote: post #200

Earlier quoted context omitted.

You are correct. I (and as I found out, many others!) have created a label for this effect, crapitalism. It arises from the bulk of the market preferring price over quality. When that happens, vendors that make a product for a lower price at the expense of quality take market share from vendors who maintain quality. The reduced volume at the quality vendor reduces their scale economics which puts still more pressure…

This is the basis for "The Innovator's Solution", and another word for it is "disruption". In the book, Christensen argues that existing suppliers target ever-higher quality (because they have the technology to do so), leaving room for "good-enough" vendors to undercut them and take away their volume product-by-product, meanwhile funding them to develop ever-better products.

Suffice it to say I disagree with Christensen and have some truly remarkable proof of that, which this comment is too small to contain. :-)

Re: SCOTUS: Patent Rights Over a Printer Cartridge Are Exhausted When It Is Sold

#238

Post by touchofevil » Tue, May 30, 2017, 10:26 PM UTC

powertower wrote: post #234

touchofevil wrote: post #48

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…

> 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

Re: SCOTUS: Patent Rights Over a Printer Cartridge Are Exhausted When It Is Sold

#239

Post by kevin_b_er » Tue, May 30, 2017, 10:29 PM UTC

brlewis wrote: post #231

Tuna-Fish wrote: post #123

Earlier quoted context omitted.

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.

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.

Re: SCOTUS: Patent Rights Over a Printer Cartridge Are Exhausted When It Is Sold

#240

Post by souprock » Tue, May 30, 2017, 10:34 PM UTC

ChuckMcM wrote: post #200

URSpider94 wrote: post #182

Earlier quoted context omitted.

I've heard this point expressed by lots of people with regards to different products in the markets, i.e. "I would pay a lot more for the product if it did x." The fact that such a product doesn't exist tells me that either there aren't enough consumers like you out there to make a market at an acceptable price, or that consumers like you are willing to defect and buy a cheaper product, if it's cheaper by a large eno…

You are correct. I (and as I found out, many others!) have created a label for this effect, crapitalism. It arises from the bulk of the market preferring price over quality. When that happens, vendors that make a product for a lower price at the expense of quality take market share from vendors who maintain quality. The reduced volume at the quality vendor reduces their scale economics which puts still more pressure…

Information asymmetry is the problem.

We might want quality and be willing to pay for it, but still buy the cheap junk because we can't reliably identify quality in the marketplace. Paying more for a product could get more quality, but it might just be paying more.

It's a variation of the cherries and lemons in the used-car market.