Thanks to the SCOTUS refusing to hear a case, all resellers of copyrighted works are in trouble. The case was about the Shrinkwrap license for AutoCAD 14. The EULA said that you could not sell your copy to anyone without their permission. Ebay seller Timothy Vernor obtained 4 copies of AutoCAD 14 from a third party. The AutoCAD listings were removed and his account suspended after Autodesk complained under the DMCA. So Mr. Vernor sued to say that it was legal to resell his copies under the First Sale Doctrine. After some back and forth the 9th Circuit Appeals court ruled that the shrinkwrap EULA that Autodesk used was enforcable. Since SCOTUS won’t hear the case, the appeals court ruling stands.
As of today with this ruling, it it will be illegal for you to resell your used games, books, electronics, etc… if a post purchase EULA says you can’t. And you know damn well that every company out there will now add such clauses to their EULA. They’re all already adding the mandatory arbitration clauses, they will add these.
The MPAA and Software & Information Industry Association, were in favor of the verdict. The American Library Association and eBay argued against it. The ALA believes that while this case specifically dealt with computer software the ruling was too broad and they think other companies that make their money with copyrighted works, like book publishers, record labels and movie studios will start using this ruling to prevent resale of their product as well.
I agree with that worry. Anything produced after today will have a this clause added to the existing EULA or for items like books that have not traditionally had them, they will be created.
The appeals court understood this and remarked in their ruling that (and I’m paraphrasing) Congress can change the law if it will be that bad. Sure. The same congress that continually extends copyright terms out to infinity minus a day, and pulls public domain works back under copyright, is going to save the first sale doctrine. I have no hope for this.
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