Vernor v. Autodesk apply to resale new software?

[draco]

What is the name of your state (only U.S. law)? MN

The way I understand the latest ruling for Vernor v. Autodesk is that software supposedly isn't sold, it's licensed. And if the license says you can't resell the software, you can't. But that case dealt with used software. What if you have new software that was never opened? The license agreement was never accepted. Do you have the right to resell it or could the software company object to that too?

 

[justalayman]

the license agreement is accepted but virtue of the first sale. The first sale is the sale to the consumer. It IS used software whether you open it or not.

to avoid this sale, you would have to return it to the vendor.

 

[tranquility]

I don't know if that is true. Lots of cases indicating the check the box on installation counts. While I think I recall at least one saying that a person who bought the product agreed to the license, I don't think that is the sense of the case law out there.

I don't think Autodesk addresses the OP's question. It's just one step further to complete control by the media creators over how the media is used.

 

[justalayman]

I don't think Autodesk addresses the OP's question. It's just one step further to complete control by the media creators over how the media is used.

You are right that Autodesk does not address the OP's question as although Vernor had not installed or accepted the terms of the license, the decision was based on the previous licenesee's acceptance of the EULA which prevented them from transferring their rights to any other party without Autodesks permission. As such, Vernor's acceptance or lack of acceptance of the EULA is irrelevant.


Now, one may read into that that acknowledgment of the EULA is required to place the purchaser in the position as licensee, I do not believe that in itself would be a dependable conclusion as that in itself was not specifically addressed.

so, the simple solution for the producer anyway is to provide the pertinent portions of the EULA in a position viewable by a consumer without opening the packaging. I do not believe a consumer would be able to invoke a claim of ignorance to bypass such notice.

That still does not address the current question though, unless there is such a notification on the software in question.


tranquility may be right on this but if it were me and due to the recent decision, I'm not sure I would want to be the guy that tests it.

and wasn't Vernor v. Autodesk a district court decision and therefore not applicable to the US as a whole? Not that their decision is refutable on any particular grounds but just the same...

 

[divgradcurl]

the license agreement is accepted but virtue of the first sale. The first sale is the sale to the consumer. It IS used software whether you open it or not.

to avoid this sale, you would have to return it to the vendor.

What Vernor says is that if you have a license agreement that meets the three (relatively minor) factors, then there is no first sale. There was never a transfer of title.

 

[divgradcurl]

I don't know if that is true. Lots of cases indicating the check the box on installation counts. While I think I recall at least one saying that a person who bought the product agreed to the license, I don't think that is the sense of the case law out there.

I don't think Autodesk addresses the OP's question. It's just one step further to complete control by the media creators over how the media is used.

I disagree that this case fails to address the OP's question. Your analysis would be correct, if approached from the perspective of the buyer/licensee -- how can a purchaser know whether they are buying ownership of something or just a license to use something if they can't see the agreement first?

But Vernor approaches the matter from the perspective of the copyright holder -- basically, looking at what rights the copyright holder intended to transfer. The analysis is really completely based on the language in the software license agreement, which evinces what the copyright owner intended to transfer when they "sold" the software.

I think that the result is not ironclad -- the court did reference the fact that the original licensee specifically agreed to the license conditions -- but I think that is dicta more than anything, because the gist of the analysis was all about the terms of the license agreement. But maybe the dicta is enough to shoehorn in an argument that if you don't agree to the license, you can be bound by the terms. I don't think that's how any cases would turn out -- I think even the owner of an unopened package of software with no external license is exposed based on this decision -- but in that event I think the owner of the unopened package probably would have a good defense as to liability for copyright infringement, or at least an "innocent infringer" limitation on damages.

 

[divgradcurl]

You are right that Autodesk does not address the OP's question as although Vernor had not installed or accepted the terms of the license, the decision was based on the previous licenesee's acceptance of the EULA which prevented them from transferring their rights to any other party without Autodesks permission. As such, Vernor's acceptance or lack of acceptance of the EULA is irrelevant.

As I noted above, I think the acceptance of the license agreement by CTA isdicta. I think the key is that the analysis looks to what the copyright owner intended to transfer.

Now, one may read into that that acknowledgment of the EULA is required to place the purchaser in the position as licensee, I do not believe that in itself would be a dependable conclusion as that in itself was not specifically addressed.

so, the simple solution for the producer anyway is to provide the pertinent portions of the EULA in a position viewable by a consumer without opening the packaging. I do not believe a consumer would be able to invoke a claim of ignorance to bypass such notice.

Being able to view license agreements before plunking down money would be an improvement. Making EULA's generally unenforceable (as some circuits appear to be heading) would be even better, at least to the extent they try to circumvent copyright law, like in this case.

That still does not address the current question though, unless there is such a notification on the software in question.

tranquility may be right on this but if it were me and due to the recent decision, I'm not sure I would want to be the guy that tests it.

Under this ruling, I don't think a notification is necessary, because the test is based on the copyright holder's intent, not on what the purchaser thought or believed.

and wasn't Vernor v. Autodesk a district court decision and therefore not applicable to the US as a whole? Not that their decision is refutable on any particular grounds but just the same...

It's a Ninth Circuit case, so it is precedent in many of the Western states and persuasive authority in the rest.