Thread: US Circuit Court of Appeal verdict making first-sale doctrine practically useless?
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Old 09-18-2010, 09:40 AM   #24
Kali Yuga
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Quote:
Originally Posted by Sonist View Post
I didn't read the opinion, but I'd think that the upgrade creates a new contract between the CTA and Autodesk, whereby CTA receives the benefit of a discount on the purchase price of later version of the software, while promising to not use (derive any further benefit from) the old copies of the software in exchange.
If you are so inclined, read the ruling. Otherwise you're kind of stuck with my interpretation of it.

That said, on one hand you are correct that CTA used the licenses to get the upgrade pricing. However, you're still dealing with Autodesk stipulating how their product is used after purchase.

Let's say you want to "upgrade" your car. In that case, you go to your dealer, you surrender a physical object, and the dealer gives you a discount on a new car. Vernor is saying this is what happened with CTA, and Autodesk was lax in its collection of the physical objects (the installation media); as such, when CTA sold him the media, he thus acquired the legal right to resell the software.

Autodesk, in contrast, is saying that the legal right to use their AutoCAD product has nothing to do with the physical objects, is not a purchase, and as such Autodesk can control what you do with the software and media after purchase.

AFAIK Autodesk does make you sign contracts, but the ruling does not mention anything about contracts or contract law -- it only discusses whether this was a purchase or license.


Or, to think of it another way: Vernor is suggesting that EULAs aren't worth the pixels used to display them on your screen, and Autodesk believes they are binding. The appeals court is stating that if you agree to it, it's binding; and if you don't agree to it, you can return it and get your money back.


Quote:
Originally Posted by sonist
BTW, last I looked, click-through rulings are still random, depending on the circuit, so claiming that they are the law of the land since 1996 is not correct.
They are infrequent but generally upheld. As such, until or unless Congress gets involved, they are almost certainly going to survive a class-action lawsuit by consumers who don't read EULAs.
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