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Before you sell that software...

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you bought... make certain you actually own what you purchased.Essentially, if the license states you have purchased rights to use the software... then you can't legally sell it.http://www.wired.com/threatlevel/2010/09/first-sale-doctrine/


Ed Wilson

Mindstar Aviation
My Playland - I69

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you bought... make certain you actually own what you purchased.Essentially, if the license states you have purchased rights to use the software... then you can't legally sell it.http://www.wired.com/threatlevel/2010/09/first-sale-doctrine/
Not so simple actually. There are many cases in which various courts (US Supreme Court in two cases) ruled otherwise.This reading offers a lot of info on the matter:http://en.wikipedia.org/wiki/First-sale_doctrineMarco

"The problem with quotes on the Internet is that it is hard to verify their authenticity." [Abraham Lincoln]

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Interesting Wikipedia article - the things you can learn on a flight simulation forums board!

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Not so simple actually. There are many cases in which various courts (US Supreme Court in two cases) ruled otherwise.This reading offers a lot of info on the matter:http://en.wikipedia.org/wiki/First-sale_doctrineMarco
The ruling I posted is the latest legal stance, and as such will usually be considered precedent above prior rulings. I'll also state that a great many EULAs actually provide a clause for license transfer.

Ed Wilson

Mindstar Aviation
My Playland - I69

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The ruling doesn't apply to the entre USA, only the those parts within the jurisdiction of the Court of Appeal of the 9th Circuit. It doesn't apply elsewhere in the world. In the UK it would almost certainly be unenforcable against consumers under the various consumer protection laws. I imagine that this may well so in many other countries.Also, it seems likely that itt will be re-heard by the full Court of Appeal and then by the Supreme Court before a final decision is made.


Gerry Howard

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The ruling doesn't apply to the entre USA, only the those parts within the jurisdiction of the Court of Appeal of the 9th Circuit. It doesn't apply elsewhere in the world. In the UK it would almost certainly be unenforcable against consumers under the various consumer protection laws. I imagine that this may well so in many other countries.Also, it seems likely that itt will be re-heard by the full Court of Appeal and then by the Supreme Court before a final decision is made.
Ok... I know you love trying to apply UK law to every single discussion... but this time... you're just being plain trollish. This is a discussion about US law and implications regarding re-sale of software.As for jurisdiction... you're right... and wrong. Other circuits can choose whether or not to take it into consideration, etc. Add to this that licenses are enforced in the state that the EULA is declared as being executed in... of which most will actually reside within the 9th Circuit.

Ed Wilson

Mindstar Aviation
My Playland - I69

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I was merely clarifying that your statement "Essentially, if the license states you have purchased rights to use the software... then you can't legally sell it." may be applicable in some US states but not worldwide.


Gerry Howard

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I was merely clarifying that your statement "Essentially, if the license states you have purchased rights to use the software... then you can't legally sell it." may be applicable in some US states but not worldwide.
This is going to kill a certain video game store's primary method of sales for sure. If this applies to console games as well as PC software, then certain companies and industries could go bust due to this.

Peter Clemenko III
Former AVSIM Staff Reviewer
All posts on the fourm are my own, and not representative of AVSIM.

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"Solving new problems is what keeps us moving forward as individuals and as a society, so don't back down." Garry Kasparov
I do what I believe is right, not what is popular.

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I was merely clarifying that your statement "Essentially, if the license states you have purchased rights to use the software... then you can't legally sell it." may be applicable in some US states but not worldwide.
Well, you should read a EULA a bit more clearly. Here's an example:
13. GENERAL PROVISIONSThis License Agreement is governed by the laws of the Stateof California, U.S.A., excluding its or any otherjurisdiction's choice of law rules and excluding the UnitedNations Convention for Contracts for the International Saleof Goods, and you further consent to the exclusivejurisdiction by the state and federal courts sitting inSanta Clara County in the State of California for anydispute regarding this License Agreement.
Please note how it declares where it's legally binding. Please note how it also states you 'consent to the exclusive jurisdiction'. That is binding inside the U.S.

Ed Wilson

Mindstar Aviation
My Playland - I69

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Ok... I know you love trying to apply UK law to every single discussion... but this time... you're just being plain trollish. This is a discussion about US law and implications regarding re-sale of software.
If you had wanted everyone to know that you were referring to US law, then you should have made that clear in your first post. I suppose you could argue that I should have read the linked information before replying to your comment above, but I can be somewhat impulsive regarding matters that stir my emotions :(

Christopher Low

UK2000 Beta Tester

FSBetaTesters3.png

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That is binding inside the U.S.
But it's not binding outside the USA which was my point. You should read FSX EULA a bit more closely. 12. APPLICABLE LAW.a . United States. If you acquired the software in the United States, Washington state law governs the interpretation of this agreement and applies to claims for breach of it, regardless of conflict of laws principles. The laws of the state where you live govern all other claims, including claims under state consumer protection laws, unfair competition laws, and in tort.b. Outside the United States. If you acquired the software in any other country, the laws of that country apply.Microsoft can afford to employ lawyers who know their subject and wil be aware of he Convention of Rome 1980, which is incorporated into UK, and generally into EU, law which reads:2 - Notwithstanding the provisions of Article 3, a choice of law made by the parties shall not have the result of depriving the consumer of the protection afforded to him by the mandatory rules of the law of the country in which he has his habitual residence:....A UK consumer can't have US law imposed on him. The lawyers will also be aware of the UK The Unfair Terms in Consumer Contracts Regulations 1999 which refer to:unfair terms which have the effect of::q) excluding or hindering the consumer's right to take legal action or exercise any other legal remedy,..Any term requiring a UK consumer to take a action in a US court under US law obviously "hinders" him and would be unfair and thus not binding .

Gerry Howard

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But it's not binding outside the USA which was my point. You should read FSX EULA a bit more closely.
That's the EULA for FSX and does not apply to all software... however is typical of you to attempt to 'win' any discussion by twisting the actual discussion.
Microsoft can afford to employ lawyers who know their subject and wil be aware of he Convention of Rome 1980, which is incorporated into UK, and generally into EU, law which reads:2 - Notwithstanding the provisions of Article 3, a choice of law made by the parties shall not have the result of depriving the consumer of the protection afforded to him by the mandatory rules of the law of the country in which he has his habitual residence:....A UK consumer can't have US law imposed on him. The lawyers will also be aware of the UK The Unfair Terms in Consumer Contracts Regulations 1999 which refer to:unfair terms which have the effect of::q) excluding or hindering the consumer's right to take legal action or exercise any other legal remedy,..Any term requiring a UK consumer to take a action in a US court under US law obviously "hinders" him and would be unfair and thus not binding .
Of course... except you're forgetting one little detail: No company in the US is bound by UK law and thus can indeed choose to litigate exactly where the EULA states. Works both ways... though apparently you keep forgetting that part in your argument to prove how truly 'safe' you are in the UK against 'evil' software companies.

Ed Wilson

Mindstar Aviation
My Playland - I69

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That's the EULA for FSX and does not apply to all software... however is typical of you to attempt to 'win' any discussion by twisting the actual discussion.
But you began to "twist" the discussion by introducing an anonymous EULA that also doesn't apply to all software
Of course... except you're forgetting one little detail: No company in the US is bound by UK law and thus can indeed choose to litigate exactly where the EULA states. Works both ways... though apparently you keep forgetting that part in your argument to prove how truly 'safe' you are in the UK against 'evil' software companies.
If a US company were foolish enough to take action against me in the US it couldn't enforce any judgement it might get, because I'm not in the US. A UK court wouldn't enforce it not only because of the reasons I've altready given but also because it has long been settled English law that a foreign judgment can be enforced against a defendant in England only if the defendant places himself within the jurisdiction of the foreign court. Such a company can't litigate in England because that's not where EULA states - Catch 22!!Just accept US law doesn't apply worldwide - any more than English law does.

Gerry Howard

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you bought... make certain you actually own what you purchased.Essentially, if the license states you have purchased rights to use the software... then you can't legally sell it.http://www.wired.com...-sale-doctrine/
Nothing new with this. I've accepted this as fact in most instances for some time, it's the nature of the software industry and has evolved over decades. The public did not seem to care since it was not until the past decade that the computer and the web became part of almost everyone's lives. Now the politics are too strong to change. What concerns me is that it is becoming more common now to sell "subscription" licenses in the entertainment market. Imagine buying MSFS for a year, then having to shell out another $30-40 to use it every single year. As long as people keep buying software under these terms, the entertainment market is going to continue in that direction, which is a business model that's been used with big business software for years. I think it's a business model which stinks when a large part of the market is made up of children and teens. One such software title is "Virtual Skipper", a fantastic sailing simulation which I won't purchase, just for their use of this type of license scheme.Regarding selling or trading software--my wish, if the law were to be changed, is that "boxed" software you purchase from a retail outlet should be required to have a legal means of unregistering the software so it can be sold or traded. In this economy, I know many people with libraries of software collecting dust. The law being what it is, I won't sell or trade software, but I have a fair amount of titles just sitting in a closet now.It's harder to apply this to software purchased over the web (which all of my current payware purchases for MSFS fall into). I think it simply can't be done--too much risk of piracy to allow "trading" or selling of license keys when there is no physical media to back up that the license was in fact purchased.Anyway, such are my thoughts...Regards,John

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The big issue I can see with this is retro games. There are some games you can't get any way other than used. Think about the old DiD sims or stuff like an original copy of Falcon 4.0. It will be almost impossible to get a lot of older games with that statute now, as you will be unable to buy older used copies.


Peter Clemenko III
Former AVSIM Staff Reviewer
All posts on the fourm are my own, and not representative of AVSIM.

PFE Expansion voice actor

"Solving new problems is what keeps us moving forward as individuals and as a society, so don't back down." Garry Kasparov
I do what I believe is right, not what is popular.

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