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Originally Posted by DawnFalcon
...And "ownership" as a concept is only present if there are NO other agreements between the parties, post-sale, otherwise it's licensed. And yes, it does make section 117 more or less worthless. Welcome to overly broad American court rulings.
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No, ownership exists if the product containing IP is sold, rather than licensed. The difference between a "sale" and a "license" was established in Vernor v Autodesk--and if the software creator calls it a "license" and attaches a EULA, that's irrelevant if it's sold. You can't tell a buyer how they may use their purchases; you *can* tell a licensee how to use their licensed product.
You can't put a sticker inside a book that says "this book is licensed, not sold, and may not be resold without written permission from [publisher]" and expect it to hold up in court.
However, if the book is licensed for two weeks' reading (i.e. borrowed from a library), it can have terms that say "this book may not be loaned or sold to other people." And while that won't physically prevent it from being handed around, it will mean that the original borrower is liable for all damages done to the book, and potentially any criminal acts committed with it.
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It may have ruled differently in the past, but that is clearly not how it has ruled in this or other recent cases. Also, in at least two of the other cases you're talking about a narrow view which only applies to physical items with "incidental" software, while the others dealt with shrinkwrap (PRE-sale) licences, not POST-sale licences.
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There's no such thing as a post-sale "license." Sold goods don't have usage licenses, only potential contracts with the seller in order to continue a business relationship. (I.e. violation of Amazon's TOS may lose you online archives of your ebooks, but it can't lose you the right to read them on your Kindle or home computer.)