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No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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Because you are not being sold any software. | 244 comments | Create New Account
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Xbox One and First Sale Question
Authored by: Gringo_ on Thursday, May 23 2013 @ 08:25 AM EDT

This is going to go over like a lead balloon. The newest XBox is already controversial enough because it runs 2 operating systems on top of a hypervisor that also supports the game environment. Concerns are that this will impair performance, and the OSes will consume RAM. Games will no longer run on bare metal.

The new XBox will run some version of Windows RT, but not the same as on the phone nor on the tablet. Of course this will add new capabilities, such as Skyping while a game is loaded or I think watching TV while a game is paused. On the other hand, it will have that ugly Metro UI.

[ Reply to This | Parent | # ]

Because you are not being sold any software.
Authored by: Anonymous on Thursday, May 23 2013 @ 08:47 AM EDT
If you buy an X-Box game at a store, you own the packaging, manuals, and media
that you carried to the register and purchased. Under U.S. law, the only rights
you have to use the software is whatever rights the copyright owners grant you
in the licensing agreement that accompanies the software.

When you first try to run the software, the installation will present you with
an End User License Agreement (EULA), to which you must agree before the program
will finish installing and let you play the video game. That EULA is a contract
in which you agree that you have no possession rights with regard to the
software. No possession, no first sale doctrine.

You can sell everything the store allowed you to carry out, but that did not
include transferable rights to use the software (beyond the first person to
install or run that copy of the software).

Yes, it stinks to high heaven, and "shrink-wrapped EULA's" have been
challenged in multiple court cases, but the courts in the U.S. have consistently
found in favor of the software publishers, and have declared EULA terms to be

Some countries maintain a more equitable balance between corporate and consumer
interests. I imagine we'll get some replies on that subject. =)

I am not a lawyer, and this is my layman's understanding of the current
lay-of-the-land, with respect to software EULA's. If you need an answer that
matters, consult a professional.

[ Reply to This | Parent | # ]

Xbox One and First Sale Question
Authored by: PJ on Thursday, May 23 2013 @ 01:07 PM EDT
The terms of the sale make first sale and copyright
moot, in that you agree to the terms, which take
away some of the rights you'd otherwise have.

And the terms make clear that you are a licensee,
not a purchaser, of the software, and there is
not first sale right for a licensee.

[ Reply to This | Parent | # ]

Scroogled or Micro Shafted?
Authored by: DannyB on Thursday, May 23 2013 @ 01:46 PM EDT
Has this privacy issue escaped anyone's notice?

Microsoft seems deeply concerned about you getting Scroogled because (OMG!) Gmail reads your email. That is, a machine statistically analyzes your email in order to calculate which ads have the highest probability of being relevant to you. OMG -- the world is ending.

The same company that is so concerned about your privacy is the company that:
  • Is introducing a new game console
  • That console is always on utility power
  • Always connected to the internet
  • Is in your living room or bedroom
  • Has a built in Kinnect camera and microphone so it can respond to gestures and commands like "Xbox on"
Maybe Google should run an ad?

Ah, but Apple may be the one to patent the use of such a device to provide "remote monitoring" of what occurs in your home. Then a patent fight will ensue.

How soon before this can be remotely hacked? Is it an attractive target? Microsoft proudly touts that it has a Windows kernel inside.

The price of freedom is eternal litigation.

[ Reply to This | Parent | # ]

Xbox One and First Sale Question
Authored by: Anonymous on Thursday, May 23 2013 @ 03:38 PM EDT
I see a drop in the interest of Xbox in the future. My son has not touched his
console in about half a year, preferring to spend his free time with Minecraft.

Can't trade in old DVDs at Game Stop? See ya Xbox.

Company execs and lawyers need to try living on $50,000 a year, or less, before
doing things like this.


Bondfire "EULAs and patents: its time to loot the middle class"

[ Reply to This | Parent | # ]

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