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You own the software that you purchase, and any claims otherwise are urban myth or corporate propaganda

Looking into this a bit more, Canada's classification of goods and services isn't produced by the government of Canada. Canada actually uses the Nice Agreement's classification of goods and services, which is administered by the World Intellectual Property Organization, which is based in Geneva, Switzerland.

 

The Nice Classification has been issued an updated list for 2019, with the status of all forms of computer software remaining unchanged as a class 9 good:

 

https://www.wipo.int/classifications/nice/nclpub/en/fr/20190101/hierarchy/class-9/


090591 - computer software, recorded

 

090658 - computer programs, downloadable

 

090670 - computer game software, recorded

 

090717 - computer software applications, downloadable

 

090732 - computer hardware

 

090791 - computer software platforms, recorded or downloadable

 

090802 - computer screen saver software, recorded or downloadable

 

090829 - computer game software, downloadable

 

 

 

I find it odd that they list computer software, computer programs, computer games, computer screen saver software, and computer software applications as separate items, as all of them are fundamentally computer software. I guess it's for the sake of clarity for people who are uncertain whether "computer software" includes a particular software item they're thinking about.

 

I think they could put it all into one item: All forms of computer software (programs, applications, games) regardless of their storage or transfer mediums (recorded, downloadable)

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  • 3 months later...

I've heavily revamped the OP with additional information, better organization.

 

Sections that have been added:

 

Definition of a good

Nice Agreement

A large section for software ownership in the US with many new sub-sections

Accursed Farms' ""Games as a service" is fraud" video

 

 

Sections that have been edited to be clearer and / or to have information added:

 

Software ownership in the European Union

Software ownership in Canada

The sections about software ownership in the US

The excerpt of my email to Steam support (slightly)

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This is the greatest and most well-researched forum post I have ever read on any forum, ever.  I am not new at this Internet thing, either.  

 

Well done.  Well done.

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FYI:
you're getting famous.

The main is discussed on Lafwul Masses with Leonard French in this video:

 

"Hell is full of good meanings, but Heaven is full of good works"

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When you decide to purchase software, you are entering into a contract, on their terms. The moment you agree to the terms, you have forgone any chance exert any rights that weren't specified in the original contract. I think it's as simple as that. 

If you don't like the rules, don't play the game. ;)

 

I think it should be the right of the company to designate what they do as either a service or a product. It's in a software companies best interest to define what they do as a service, because it's the better business model. Numerous primary business applications have already moved to this model and for good reason.

If they have defined what they do as a service in the contract you agree to, it reasonable that they can define that they are not selling a permanent license; they are selling you a service, which includes a license to use their software for as long as they are contracted to provide such service.

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On 5/1/2019 at 12:39 PM, Stefan Payne said:

FYI:
you're getting famous.

The main is discussed on Lafwul Masses with Leonard French in this video:

 

In his video, Leonard spends a huge amount of his time rationalizing things and making assertions towards the dogmatic narrative that my OP in this thread addresses and intends to debunk. And in-keeping with that narrative having become a dogma over many, many years of non-challenged conditioning, he doesn't offer much in the way of substantiation for the things he asserts.

 

 

Where my post says 'this software is licensed not sold refers to the IP and not the instances', he argues, "I think it refers to both, actually", without giving evidence or reasoning for it. How can it? There is a point-of-sale purchase for a presented item. What is the item that is presented as being for sale? The EU and Australian courts have stated clearly that the item presented is the software itself:


EU Top Court: When You Buy Software You Own It

Quote

Bottom Line Rule (in the EU): If you buy software to use for an unlimited time in return for a one-off fee you own it.


http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2016/2016fca0196#_Ref445465996

Quote

“The legal meaning of “goods” can be analogised to the strict definition of “property” which is “a description of a legal relationship with a thing”: Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351, 365-366 [17] (Gleeson CJ, Gaudron, Kirby, and Hayne JJ describing the word “property”).”

 

“137    Valve supplied consumers with a good.”

 

143    Valve’s submission essentially relies upon a distinction between a licence to use and a property right. Valve submitted that the Licence Agreement (which, by cll 1 and 3, confers only a non-exclusive licence to install copies of the program for personal use until termination) was not a property right. Similarly, Valve pointed to each version of the SSA (cl 2) which confers “a limited, terminable, non-exclusive license and right to use the Software…” . Each version of the SSA, in the same clause, also provides that the software is licensed and not sold. Valve asserted that a mere licence could not be a “supply of goods”.

 

145    I reject Valve’s submission that goods supplied by licence are not a “supply of goods” for two reasons corresponding to inconsistency with the text of the Australian Consumer Law and inconsistency with its purpose.

 

340    ... "Each of Valve’s challenges to the applicability of the Australian Consumer Law fails." ... "Valve supplied goods (which are defined as including computer software)."

 

"This is just a distinction of whether a thing is a license or not" - this is a false dichotomy: It's a licensed instance of an IP, while it is simultaneously a sold product. A person licenses the IP, but they purchase the product that is based off of the IP. The same simultaneous licensing and ownership exists for all mass-produced copyrighted goods.

 

The thing that Leonard says in his video to argue against this post, without giving a source or explanation for it, is the very thing that these courts ruled, and in no unequivocal terms, to be not the case. In the case of the Australian verdict, Valve tried to propose exactly what Leonard claims... and the court head-on said, no, that's not the case, people do actually own the game itself as a personal property.

 

The EU court has said (link to the judgment below):

Quote

52      Moreover, as stated in paragraph 46 above, in a situation such as that at issue in the main proceedings, the copyright holder transfers the right of ownership of the copy of the computer program to his customer.

 

For 'this software is licensed, not sold' to apply to the IP and the purchased instance of it, there would have to be that distinction, and there would then be two licenses purchased at the point of sale: One for the IP, and one for the instance. Leonard is simply wrong.

 

He asks, "What would you buy anyway? ... If we weren't talking about a license, then what are we talking about? This is not the same thing as a book, where you want to get all the words in the book, right?"

 

For real? It's exactly the same as a book: A book is a defined collection of words organized into a form that produces a meaningful story. Software is a defined collection of code that is organized into a form that produces a meaningful function, story, operation, etc. It is conceptually defined, with its totality being referenced by the title of the software. And the software's defined form of information, its code, exists within its installation whether it is compiled or not.

 

What Leonard asks is like asking what people discussing a game or a movie on internet forums are even talking about, as if there is no conception of what those things are. If I say Dragon Age, going by what he says, he'd respond with, 'well, what even is Dragon Age? I don't see its physical form, and therefore it's not a real thing'. I would say that's ridiculous. But anyway, he should then follow his own advice and follow that line of thought to its legal conclusion about other items: When people purchase an intellectual property, such as when Disney purchased Star Wars, or Marvel, they couldn't have possibly purchased Star Wars or Marvel because, 'what even are those things? they're not like books'.

 

Since Leonard doesn't have, or pretends to not have, the concept of purchasing non-physical things such as software grasped, or a concept of software as a thing, how could he possibly comment on it with understanding? 'When you purchase a t-shirt, if you aren't talking about a license, then what are you talking about?' Well, you're talking about the t-shift. It has a defined concept.

 

 

"This is not the same thing as a book, where you want to get all the words, right? You don't get the code in its source format, you get the code in its object format, so we're already far away from the normal buying of a copy."

 

First, I'll point out that the EU Court of Justice says that when people purchase software they are buying a normal copy and become the owner of that copy of the software:

 

http://curia.europa.eu/juris/document/document.jsf?text=&docid=124564&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=5213884

Quote

49      As the Advocate General observes in point 59 of his Opinion, if the term ‘sale’ within the meaning of Article 4(2) of Directive 2009/24 were not given a broad interpretation as encompassing all forms of product marketing characterised by the grant of a right to use a copy of a computer program, for an unlimited period, in return for payment of a fee designed to enable the copyright holder to obtain a remuneration corresponding to the economic value of the copy of the work of which he is the proprietor, the effectiveness of that provision would be undermined, since suppliers would merely have to call the contract a ‘licence’ rather than a ‘sale’ in order to circumvent the rule of exhaustion and divest it of all scope.

 

50      Secondly, the argument put forward by Oracle and the European Commission that the making available of a copy of a computer program on the copyright holder’s website constitutes a ‘making available to the public’ within the meaning of Article 3(1) of Directive 2001/29, which, in accordance with Article 3(3) of that directive, cannot give rise to exhaustion of the right of distribution of the copy, cannot be accepted.

 

51      It is apparent from Article 1(2)(a) of Directive 2001/29 that the directive ‘leave intact and … in no way affect(s) existing … provisions [of European Union law] relating to … the legal protection of computer programs’ conferred by Directive 91/250, which was subsequently codified by Directive 2009/24. The provisions of Directive 2009/24, in particular Article 4(2), thus constitute a lex specialis in relation to the provisions of Directive 2001/29, so that even if the contractual relationship at issue in the main proceedings or an aspect of it might also be covered by the concept of ‘communication to the public’ within the meaning of Article 3(1) of the latter directive, the ‘first sale … of a copy of a program’ within the meaning of Article 4(2) of Directive 2009/24 would still give rise, in accordance with that provision, to exhaustion of the right of distribution of that copy.

 

52      Moreover, as stated in paragraph 46 above, in a situation such as that at issue in the main proceedings, the copyright holder transfers the right of ownership of the copy of the computer program to his customer.

 

So, there it is in bold and non-bold: Software in the EU is subject to the first-sale doctrine and when people purchase software in the EU they are definitively purchasing a copy of the software and from the copyright holder unto the purchaser "transfers the right of ownership of the copy of the computer software".

 

Now about Leonard's comment regarding a book - what? When you buy a book, you don't get the words via its original manuscript, you get the words in a cleaned up, edited format presented with copyright notices, in a mass-produced binding, potentially released or re-released in various editions with different covers. So, we're already far away from the normal buying of a copy... unless buying of a copy doesn't have anything to do with getting a specific presentation of an IP - and it doesn't.

 

The software in its compiled gold-mastered form is equally the IP of the copyright holder as the same software in its source code format. The useful, identifiable form of software that can be compiled into any number of format that will always still containing that useful, identifiable form of software is the copy of the IP that a person purchases a copy of, and owns.

 

And even if the concept of a sold software item differed from the concept of a copy of the IP, the marketed and sold version is still itself a defined concept which is identifiable on its own, and so it doesn't evade the concept of a product being presented for sale and being bought by its purchaser.

 

What Leonard is suggesting here is that archiving software turns it into a distinct thing, and so any software a person might own in its raw format suddenly isn't owned once it's put into a zip archive. But, that bears a huge absence of logic: The zip archive still contains the form of code that the person owns, just as compiled software contains the software copy that a person who purchased it owns. And it is precisely the offered form of software that people purchase - and people are entitled to modify their property after they've purchased it (such as with mods) and so moving it into another container doesn't affect ownership status.

 

The implication is also that software piracy isn't software piracy unless it is sharing the original source code for the software, and that reproducing and distributing reproductions of copyrighted works without permission can be lawfully done by changing the container format the software is in. When it comes to unlawful reproduction and distribution of software, there is no difficulty for lawyers, corporations, and courts in conceptualizing what the software copy is, and so there likewise isn't such a difficulty when it comes to conceptualizing what the concept of a copy of software that is purchased is.

 

As another example, what Leonard protests is like saying the picture frame a person buys a copy of an artwork in changes whether they purchased the instance of art they bought or merely licensed it. It's ridiculous. The artist could change the frame for each instance of their same artwork they sell, so that each person has a uniquely-framed copy of that artwork, and each of the purchasers of their copy of the art would own their copy of the art.

 

 

Leonard says: "You sort of have to buy more than just that copy. If you don't have a license, then really what's going to apply is just consumer protection law... so there has to be some kind of license, there has to be some kind of agreement".

 

And there, he's not following the LTT post at all, since he thinks it claims that software is only purchased with no license conferred. That's not what the OP says. It says that there is a simultaneous licensing and purchasing occurring when purchasing software, just as there is with all physical copyrighted goods purchases, including books - and that's necessarily the case because otherwise, as Leonard's own argument details, people could mass-produced their books and sell the copies of them, use the title for themselves, etc.

 

There is a license conferred: That to use the software IP via the the non-reproduceable instance that is purchased.

There is a purchase made: That of the non-reproduceable instance of the software.

 

That's what the section he's commenting about literally says:

On 7/29/2018 at 9:38 PM, Delicieuxz said:

Both of the following phrases are simultaneously true: This software (IP) is licensed, not sold; This software (instance / license) is sold, not licensed or leased.

 

A difference with the presentation of software purchases and those of other mass-produced goods is that software EULA's unnecessarily and verbosely state what is already law anyway, as if there's something about the EULA itself that establishes those protections rather than ubiquitous law, and which other mass-produced goods summarily convey with a little © and ™ on their packaging. And then EULAs further claim a lot of things that aren't really enforceable. This is a part of the mind-games involved in EULAs, making them appear more important and authoritative than they are.

 

 

Leonard says, "I'm not sure that you own a license to anything with regard to your vehicle, your clothing, your TV, even your computer hardware..."

 

So, here I'm going to throw what Leonard just previously said back at him, in agreement with that statement: "You sort of have to buy more than just that copy. If you don't have a license, then really what's going to apply is just consumer protection law... so there has to be some kind of license, there has to be some kind of agreement".

 

The ownership of the copy necessarily implies an inseparable license to make use of the IP the copy is based on. Just like how people cannot take a copyrighted work, modify it, and then mass-produce it and sell it as their own work because it inescapably contains within it the IP that belongs to somebody else, likewise, there is natural inheritance at play when a person purchases a physical copyrighted good: A person cannot have and exercise authority over a copy based on an IP without having a limited right to use that IP, which is exactly what a license is.

 

If the right to use a purchased physical good isn't limited by license to the IP for that good, then there would be no restrictions on what a person may do with that good and they could reproduce it and sell their reproductions. They can't because they don't have ownership over the IP, which means that while they're entitled to use the IP via their non-reproduceable instance of it, their rights to enjoy the IP are limited. A copyrighted work of an IP contains a license to engage and enjoy the IP.

 

Leonard then says that the difference with physical copyrighted goods is that the purchaser owns a copy. And this comes back to the false dichotomy between licensing and ownership when the product in question is a copyrighted work - there is both a license (of the IP) and an ownership (of the copy) involved in every case.

 

Leonard keeps stumbling over the conceptualization of non-physical goods, in that he has no conceptualization for it. Yet, it's exactly the same thing between physical and non-physical goods.

 

 

 

There is a ton more that's either demonstrably false or illogical with what he argues. I intend to put some more of it into a post, but I'll just do this for right now.

 

 

 

I don't know what type of a lawyer Leonard is or who his clients are, and so what I'm saying here is only a general hypothesis of why someone might be arguing the things he has:

 

There is going to naturally be people protecting their professional field and their former, current, prospective clients, all of which also protects their own business, reputation, and status. Their interpretations, as people working for a certain group of interests, are going to be along the lines of what they and their peers have established as approved conduct and perspectives in these matters, with those things agreed upon intended to serve them and their clients. That would be the narrative that Ross says needs to be pushed back against, and the propaganda I confront in this thread's OP.

 

If an attorney is being paid big bucks to represent a corporation, then their advice will tend to rationalize interpretation of the law towards the benefit of the corporation, or try to find ways to establish a precedent to support the corporation's interest. If an attorney is being paid big bucks to represent an advocacy group or an individual, then their advice will tend to rationalize law interpretation towards the position of those clients, and try to find entry points within the law to accomplish those clients' goals.

 

People who make their livelihood advising, representing, and protecting the interests of clients who pay them to do so are going to be disposed towards perceptions that favour their clients and therefore themselves. So, in a topic such as this, I think it's not unusual to hear legal opinion rationalize everything into 'you can't' for the consumer, while, for the corporation, it will be the opposite and opinions are going to be rationalized towards 'you can'.

 

 

Corporations have spent decades conniving perception of the situation by only representing and pushing their interests while framing things as though all others don't exist. Leonard sounds to me like he is situated firmly within that dogma. And he doesn't manage to explain things like why software is actually different than a physical good other than asserting that a physical good is purchased while a software item is licensed - which is a false dichotomy and also in contradiction of what various courts have ruled. But, he sounds to me like he simply accepts his assertions as though to him they're dogma.

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Leonard next looks at this that I said in the OP:

 

On 7/29/2018 at 9:38 PM, Delicieuxz said:

 

  • In law, a good is, by definition, an item that undergoes a transfer of ownership upon its point of sale, from the seller to the buyer, granting the buyer full property rights over that purchased item, and removing all rights from the seller over the item which they sold. As of June, 2019, there will be 86 countries signatory to the Nice Agreement treaty. The Nice Agreement (called such because it was signed in Nice, France, in 1957), is a multinational treaty that contains the International Classification of Goods and Services (also known as the Nice Classification), and that treaty assigns the classification of goods and services for its signatory countries under the jurisdiction and authority of the World Intellectual Property Organization (WIPO). The World Intellectual Property Organization classifies all software as Class 9 goods.

 

 

Whether or not he intended to, Leonard doesn't end up contesting this section of the OP. He decides to find a look up the legal definition of goods, but initially only finds that goods are a subset of chattels. He then looks up the meaning of consumer goods, and then surmises that the topic is too complicated for what he's doing and moves on.

 

Other legal dictionaries give more clarification than the definition that Leonard looked at. For example:

 

http://www.duhaime.org/LegalDictionary/G/Goods.aspx

 

Definition: A chattel which is, generally, subject to sale.

Related Terms: Chattel, Personal Property, Movable

 

And the page then gives various legal opinions about the nature of a good, the two top ones being:

Quote

"The ordinary and accepted meaning of the (French) word marchandise (goods) is that of items circulated on the commercial market intended for sale."

 

And:

Quote

"In practice, however, the term goods is confined to those chattels which are capable of manual delivery, such as furniture and merchandise."

 

The Ontario Sale of Goods Act says:

Quote

“Goods” means all chattels personal, other than things in action and money, and includes emblements, industrial growing crops, and things attached to or forming part of the land that are agreed to be severed before sale or under the contract of sale"

 

Legal definition of a chattel: Moveable items of property which are neither land nor permanently attached to land or a building, either directly or vicariously through attachment to real property.

 

"Moveable items of property which are neither land nor permanently attached to land or a building, either directly or vicariously through attachment to real property; also known as personal property.

 

The word "chattel" came from the feudal era when "cattle" was the most valuable property besides land. A piano is chattel but an apartment building, a tree or a concrete  uilding foundation are not. The opposite of chattel is real property which includes lands or buildings. All property which is not real property is said to be chattel."

 

 

Legal definition of property: A comprehensive collection of legal rights over a thing.

 

"These rights are usually total (commonly described as "ownership") and fully enforceable by the state or the owner through the Court, against others; an unfettered right to use or dispose of a thing."

 

 

https://www.law.cornell.edu/ucc/2/2-105

Quote

"Goods" means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (Article 8 ) and things in action.


 

As I've written in the LTT OP, a good is a property that can be purchased and sold, and which undergoes transfer of ownership upon its point of sale.

 

Property (which is the comprehensive lawful rights, the decision-making authority over a thing) that is sold becomes the new property of the purchaser once the seller disposes of their control over that property to the buyer in exchange for the money that was asked for.

 

As software is classified in law as a good, that means that these things apply to software and that software is a property that can be sold by a seller and then purchased by a buyer, and that the property rights over an item of software then transfer to the purchaser of that item of software.

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At around 36:20 in the video, Leonard queries whether a license itself undergoes a transfer of ownership upon its point of sale, saying, "Well, the license doesn't, you don't own the license, I mean... that's an interesting. I don't know that the license transfers ownership. I think it's a license. The ownership is referred to as a license. So, to say that a license is a transfer of ownership is a bit of a misnomer."

 

Here, I would ask Leonard: Then what does a person receive or get as a right when they pay for a license? Whatever they receive as a right is what they became owner of.

 

A license is held by a particular person or company, and so it is the property of that person or company. A property being the encompassing rights over an item, and a license being a set of rights over a property of another person's property, and a license belonging to a specific person or group, it is by definition a property that transfers ownership to the person or group to whom it is bestowed.

 

Here is Canada's Federal Court ruling that licenses are themselves goods:

 

https://www.canlii.org/en/ca/fct/doc/2016/2016fc223/2016fc223.html?resultIndex=1

Quote

Even though Specialty used to sell its software on disks – which are obviously tangible and easily identified as wares – it was always really selling a license to use the software, which is an intangible good. Specialty did not actually sell the software itself [edit by Delicieuxz: which I emphasize meas the IP]; it sold an entitlement to obtain access to it by way of licenses. The disks merely represented the means by which the transfer of the goods occurred. The real goods were, and are, the licenses.

 

The evidence demonstrates that Specialty’s trade-mark has been used in a manner that shows an association between the mark and the goods that are sold – the licences themselves:

 

 

The Australian High Court likewise rejected Valve's argument that a purchasing a license is different than purchasing a good:

 

http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2016/2016fca0196#_Ref445465996

Quote

143    Valve’s submission essentially relies upon a distinction between a licence to use and a property right. Valve submitted that the Licence Agreement (which, by cll 1 and 3, confers only a non-exclusive licence to install copies of the program for personal use until termination) was not a property right. Similarly, Valve pointed to each version of the SSA (cl 2) which confers “a limited, terminable, non-exclusive license and right to use the Software…” . Each version of the SSA, in the same clause, also provides that the software is licensed and not sold. Valve asserted that a mere licence could not be a “supply of goods”.

 

145    I reject Valve’s submission that goods supplied by licence are not a “supply of goods” for two reasons corresponding to inconsistency with the text of the Australian Consumer Law and inconsistency with its purpose.

 

 

The EU Court of Justice, which is the European Union's equivalent of the Supreme Court in the US, has also ruled that licenses are property of the purchaser of them:

 

European Court confirms the right to resell used software licences

Quote

A recent European Court of Justice (ECJ) decision has confirmed that organisations can resell "used" software licences, regardless of whether they were purchased in a physical form or downloaded from the internet.

 

In addition to opening up greater competition in the software market and allowing organisations legitimately to source additional software licences from the second-hand market (as opposed to from an authorised reseller), the decision also means that organisations may be able to make better use of the intellectual assets on their balance sheet.

 

...

 

Under European law, the licensor of a computer programme loses its right to control onward distribution of a copy of that programme when that copy is first sold in the EU. This is known as the principle of exhaustion.

 

...

 

The ECJ dismissed Oracle's argument, holding that the principle of exhaustion applied regardless of the means by which software is distributed.

 

...

 

The decision applies only to software licensed on a perpetual basis - in other words licences that are not limited in duration

 

The decision applies to the version of the software "as corrected and updated", which means it includes any patches or updates that the original licensee was entitled to, even if the relevant maintenance agreement has now expired.


The "right of exhaustion" (EU's version of the first-sale doctrine) applying to licenses means that they undergo transfer of ownership upon point of sale, and the purchaser of a license becomes the owner of that license, in addition to the copy of the software itself, as ruled by the EU's Court of Justice in that case:

 

http://curia.europa.eu/juris/document/document.jsf?text=&docid=124564&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=5213884

Quote

51      It is apparent from Article 1(2)(a) of Directive 2001/29 that the directive ‘leave intact and … in no way affect(s) existing … provisions [of European Union law] relating to … the legal protection of computer programs’ conferred by Directive 91/250, which was subsequently codified by Directive 2009/24. The provisions of Directive 2009/24, in particular Article 4(2), thus constitute a lex specialis in relation to the provisions of Directive 2001/29, so that even if the contractual relationship at issue in the main proceedings or an aspect of it might also be covered by the concept of ‘communication to the public’ within the meaning of Article 3(1) of the latter directive, the ‘first sale … of a copy of a program’ within the meaning of Article 4(2) of Directive 2009/24 would still give rise, in accordance with that provision, to exhaustion of the right of distribution of that copy.

 

52      Moreover, as stated in paragraph 46 above, in a situation such as that at issue in the main proceedings, the copyright holder transfers the right of ownership of the copy of the computer program to his customer.

 

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At 37:20, Leonard continues by saying of the LTT OP statement that the first-sale doctrine applies to perpetual software licenses, "Not true, not true, absolutely not true. We have the Vernor vs. Autodesk case and others that say you can license software and not have it be a first-sale issue, if it's properly done... ", making again what I've called a false dichotomy over licensing and selling software.

 

Leonard brings up the Vernor vs Autodesk case in a way that sounds like he's suggesting its verdict is a statement to be applied ubiquitously in all of these situations in the US (despite its judgment applying to just the district of the Ninth Circuit). I have claimed and maintain that the Vernor vs. Autodesk case is superseded by the 2013 US Supreme Court ruling on the first-sale doctrine applying to copyrighted works.

 

To address this point of contention, I'm going to jump forward to what Leonard asserts at 51:00 of the video about the 2013 Supreme Court ruling in the Kirtsaeng vs. John Wiley & Sons case:

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This [Vernor vs. Autodesk case] is sort of being used to bolster the argument in sort of a disingenuous way [by] this author here on Linus Tech Tips. The Kirtsaeng v. John Wiley & Sons [case] was a very complicated issue with overseas copyright.

 

So, if... let's say that I write a book. And let's say I charge $100 to college kids in the US for the book, but college kids in India get the book for $15. Well, heck, wait a minute - somebody might just have the idea to go buy a bunch of $15 books and bring them back to the US and sell them for $85 instead. You know, to the kids in the US. In that legal? And at first we thought, 'No', but then it got up to the Supreme Court and the Supreme Court said, 'Yes', it actually is legal for you to do that.

 

That is what was at issue in Kirtsaeng v. John Wiley & Sons, not games a service or anything that could be sort of related to it.

 

First off, the Supreme Court says in their verdict that there isn't such a distinction as overseas copyright vs domestic copyright because application of the Copyright Act isn't selective according to geographical region.

 

Secondly, the Supreme Court, in its ruling, specifically related the right to resell books to the right to resell software.

 

 

How Leonard presents the Kirtsaeng v. John Wiley & Sons case depicts the subject matter over which the case was initiated, but it doesn't describe where the Supreme Court went with its reasoning for its conclusions. And how he represents the court's verdict is very different than what the US Supreme Court said in its conclusions. The Supreme Court actually did specifically mention software as being a part of the same conversation.

 

The Supreme Court didn't base its verdict in the Kirtsaeng v. John Wiley & Sons case on a specific evaluation of foreign copyrighted books, but rather did the inverse and reasoned that because there was no specific exclusion to the first-sale doctrine or Copyright Act for those goods, and deemed that because there generally isn't a particular difference between a foreign geographical region and the US itself as far as the first-sale doctrine is concerned, that the first-sale doctrine therefore must apply by default just as it does to all copyrighted works purchased in the US, while using software as an example of the resale of goods that could be harmed if such specific exceptions to various goods could be made.

 

The court didn't look at the foreign books as a disparate and stand-alone case, but as one about the nature of the first-sale doctrine. And so, the court's verdict wasn't ultimately about foreign books, and wasn't ultimately about one particular kind of goods, but was about what the first-sale doctrine means for copyrighted works regardless of the type of goods and regardless of the region they're sold in.

 

Justice Breyer, who delivered the Supreme Court's verdict, expressed that the court had the implications for first-sale rights of other goods such as software in mind when he said of the court's reasoning: "A geographical interpretation would prevent the resale of, say, a car, without the permission of the holder of each copyright on each piece of copyrighted automobile software".

 

It was because of the first-sale doctrine's ubiquitous nature, and because of the negative implications for other goods with software being specifically mentioned, that the Supreme Court ruled that the foreign books in question in the case are also subject to the first-sale doctrine and Copyright Act. The court didn't just decide that the books in question fall under the first-sale doctrine, but affirmed that the first-sale doctrine applies to copyrighted goods and therefore applies to the overseas books in the Kirtsaeng v. John Wiley & Sons case.

 

The reasoning of the Supreme Court, the "why" foreign books are subject to the first-sale doctrine matters, and it, by expressed intention of the court, makes a comment about the first-sale doctrine applying to all other copyrighted works.

 

The verdict for that case is here: https://web.archive.org/web/20130427031300/http://www.supremecourt.gov/opinions/12pdf/11-697_d1o2.pdf

 

 

Coming back to the Vernor vs Autodesk case where the conclusion meant that the first-sale doctrine could be made to not apply to software if the copyright-holder takes some steps to deny it, with software being classified in US law as a good, and with a good being a property that undergoes transfer of ownership upon its point of sale (AKA the first-sale doctrine applies), the Supreme Court's 2013 verdict in the Kirtsaeng v. John Wiley & Sons case that people may resell their copyrighted works without requiring a permission from the copyright-holder absolutely at face value supersedes the Ninth Circuit Vernor vs Autodesk verdict.

 

Just like some people in law thought that people couldn't resell cheaper foreign books in the US before the Kirtsaeng v. John Wiley & Sons case, declares the opposite to what was assumed in saying, 'Yes', people may resell not just those foreign copyrighted books in the US because the first-sale doctrine simply applies to goods without exceptions for particular goods or geographical regions.

 

Again, the reselling of software was an analogy the court mentioned as something that could be negatively impacted by any such exceptions for particular goods or geographical regions.

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  • 4 weeks later...

I've been waiting for Ross' video to come out, and trying to find the time to watch it since. I was surprised and yet not really surprised by your post's contribution to it.

I don't have much more to add, but wanted to congratulate you on the original post ;) 

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  • 4 weeks later...

GoG aren't ambiguous about things at all: "You buy it, you own it".

 

They outright tell their customers that people own the games they purchase through GoG. And many of those games are the same ones sold through Steam and other retailers, made available for sale by the same publishers.

 

 

1154400849_GoG-youownyourgamespic.thumb.png.bbaeeebdc69960bb55de7bba97ec6f25.png

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