Reselling used games illegal? Maybe...

[theRepublic]

noname2200 said:

theRepublic said:

noname2200 said:

It's the Ninth Circuit, so it's quite possible.  This decision certainly flies in the face of long-standing precedent regarding adhesion contracts, anyways.

The Western Washington court's decision upheld the idea that customers own the software they purchase, commonly referred to as the "You bought it, you own it" principle. The Appeal Court's decision, however, undermines that idea if the software has "license only" language in its EULA.

I assume you mean the second sentence right?

In a broader sense, yeah.  I won't bore you with the details, but in essence courts tend to look to mass-produced contracts (like EULAs) and realize that the bargaining power between consumers and corporations are so uneven that letting the latter force some terms on the former isn't exactly great policy.  That doesn't mean they're always invalid, but many of the most restrictive terms in software EULAs tend to be struck down. 

I've browsed through the opinion, and while I concede that it meets a very narrow reading of the letter of the law, the panel has had to do some major dancing to fit their opinion into precedent. It also assumes Congress employed a level of attention to detail that any American over the age of six knows to be laughable.

Moreover, there's something else that's utterly bizzare in the 9th's current decision:  no one reads a EULA until after they've purchased the product.  In fact, I don't think you can access the EULA until then (the defendant here certainly could not).  How, then, the Ninth believes that a contract term which one of the parties could not have been aware of at the time the contract was formed might be binding upon that party is, simply, mind-boggling.  That point wasn't even addressed in the opinion.

I'm thinking that the case just drew a poor panel, and that it'll be reversed when it's reviewed en banc or, failing that, at the Supreme Court.  It's already created a circuit split, and it's a big economic issue, so if it's appealled I'm pretty sure it'll be heard.

Ok, so the "you bought it, you own it" principle they got right.  But the way they gave EULA contracts power to undermine that would possibly get turned over.  Yes?