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Comment by jjeaff | Hacker News Reader

Although the digital download portion muddies the water, this seems to fall clearly under the first sale doctrine. As mentioned in the article, the seemingly applicable case of digital downloads getting exempted from first sale was only applies because the downloaded music was already downloaded once and sending it to someone else constituted copying which I assume falls under dmca.

I predict Disney will lose.

Big textbook publishers have been trying to pull this crap for years and were finally trounced in the Supreme Court when it was ruled that once a textbook is sold to someone, you don't get to dictate whether and where it can be resold.

Disney is selling a code for a one time download. Once you purchase it, and you haven't used it yet, you should have the right to do whatever you want with it.

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> Big textbook publishers have been trying to pull this crap for years and were finally trounced in the Supreme Court when it was ruled that once a textbook is sold to someone, you don't get to dictate whether and where it can be resold.

Cue the rise of one-time-use codes in text books to register required software used for homework. I get that they need to make money, but by God they don't have to be scum while doing it.

I saw that while I was in college circa 2001; I was able to make an account with a used book and an example code shown in documentation -- but they cut it off midterm, so I stopped doing homework. :(

did this in college. If the one time use were consumed, you'd have to buy a new code from the publisher iirc

> I predict Disney will lose.

Yeah well, I said the same thing about copyright extension and the DMCA... Disney doesn't lose these kinds of battles very often. They've paid a lot of politicians a lot of money to keep getting their way...

I just read an article related to that the other day, it's a good read:

https://priceonomics.com/how-mickey-mouse-evades-the-public-...

There's a good chance Disney will win without having to pay off any politicians.

In a nutshell: first sale doctrine applies to physical goods, i.e., the DVD purchased by Redbox. It doesn't apply to non-tangible goods (specifically, the code that accompanies the DVD) because intangible goods are licensed, not sold. So, Redbox while Redbox can sell the DVDs it purchases without restraint, it has to abide by the terms of the license if it wants to sell the download code.

So, they can sell the slip of paper that Disney printed the code on, but not the code itself?

I’m not sure why you think that first sale doctrine doesn’t apply to intangible goods. There are some court cases to say it does apply to software, (verner v Autodesk, https://www.techdirt.com/articles/20080522/0016171201.shtml).

Companies definitely want to exempt digital goods from first sale, but there’s no logical reason to do so. Hopefully this case helps establish precedent.

That ruling was overturned because it was simply wrong as a matter of law. Intangible goods are licensed, not sold. Will explain in follow up when I get to a computer. https://en.m.wikipedia.org/wiki/Vernor_v._Autodesk,_Inc.

Basically, under US and Western law, an intangible good is only "sold" when all of the relevant right to it are sold. If you only sell copies, you are only selling a right to use the copy, which the law calls a license. (The copy doesn't actually exist, by the way, it's just a legal construct, as downloading actually creates a new set of bits.) Since the license is trivially copied, the owner of the good is allowed to control how the license is used.

How western is EU?

https://en.wikipedia.org/wiki/UsedSoft#ECJ_ruling

But its not applicable in this case, same German court rejected resale of used games on account of identifying them as art and not software.

It sounds like you're making the argument that was successful against digital downloads, but I think here there's a case to made that download codes are indeed rivalrous.

They aren't selling a code for the download, though. They are selling you physical movie that comes with code to enjoy a digital copy. It's a bundled service, and I'm not sure first sale allows resellers to strip that and sell for profit, any more than Wal-Mart could order blu-rays that come with a DVD, open them up, and sell both separately.

Or open up a PS4 with a code for a free game in it, and sell the game.

Wait, why couldn't Walmart do that?

I'm not sure. I was arguing that if it's feasible, they probably would be doing it by now. My guess is either the UCC or walmart's contract with Disney prevents the breaking apart or reselling of bundled services.

Because Walmart has to play nice with the studios to keep their supply of wholesale movies coming.

The difference is, in this case at least, RedBox is buying their movies retail. So Redbox buys Disney movies just like you and I do, from a store shelf.

This case is exactly asking whether someone can “order blu-rays that come with a DVD, open them up, and sell both separately.” Intuitively first sale doctrine should imply you can: I can buy a bunch of packs of trading cards, open them up, then sell the cards individually. Likewise I should be able to buy a book, tear it apart and sell one chapter of it at a time. Or buy a gallon of flour and split it into 12-oz containers to sell. This question is the crux of the case, though, so it will be very interesting to see what legal arguments are offered, and what precedent applies.

Back in the late 1980s and early 1990s games would come with a disk for an IBM-compatible and a disk for an Apple II in the box.

That's plenty of precedent.

that's not a precedent unless there was a court ruling based on it.

And...?

How did the courts rule on reselling the disks separately?

Actually there have been court rulings that ripping a book apart creates derivative works (what is a single chapter if not an abridged version of the original?), so you can't do that. Although other courts have ruled you can.

Interesting. Got a cite for the book-ripping case?

http://www.ogdenglazer.com/intellectual-property/this-split-... or http://digitalcommons.law.wne.edu/cgi/viewcontent.cgi?articl... are places to start.

Thanks! To be fair, it doesn't look like that particular situation is settled law yet.

I find the (established?) grammar quite peculiar. Arguments are offered, passively, but precedent actively applies - itself, seemingly - as to distract from any subjectivity because, nobody should doubt, a high court's opinion always applied even before any decision was met.

edit: not sure whether this were "established".

Wal-Mart absolutely could do that, but the studios would probably stop selling bundled media directly to them. Wal-Mart is going to have a much harder time stocking their stores by buying from other retailers than Redbox has stocking kiosks by shopping at retailers.

you would think! but the first sale doctrine gets weird where the following are concerned: - copyright - a terms of service violation (here, as governs the licensure of the code and computer system accessed)

(disclosure: not legal advice, these things are complex, etc; contributed work on an appellate brief on a related matter)

> these things are arbitrary

fixed that for you

ok!

I am wondering, if they lose what is stopping from Disney saying - well, we are no longer giving away digital codes along with the DVDs? Can court stop them from doing that?

No, that would be fine. They can do that even if they don't lose.

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