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

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

#281

Post by tremon »

bdhess wrote: post #227
azernik wrote: post #206

Earlier quoted context omitted.

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…

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.

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

#282

Post by Cthulhu_ »

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…

> 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.

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

#283

Post by DanBC »

Cthulhu_ wrote: post #282
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…

> 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.

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

#284

Post by pbhjpbhj »

codedokode wrote: post #184
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.

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.

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

#285

Post by pbhjpbhj »

moomin wrote: post #98
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.

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.

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

#286

Post by matt4077 »

toyg wrote: post #249
bdhess wrote: post #203

Earlier quoted context omitted.

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.

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 se…

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.

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

#287

Post by matt4077 »

WilliamDhalgren wrote: post #246
azernik wrote: post #202

Earlier quoted context omitted.

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.

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…

> 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.

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

#288

Post by matt4077 »

pfisch wrote: post #209
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.

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.

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

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

#289

Post by matt4077 »

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.

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.

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

#290

Post by matt4077 »

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…

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