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Re: First sale litigation in Germany


From: Alexander Terekhov
Subject: Re: First sale litigation in Germany
Date: Wed, 08 Dec 2010 16:01:31 -0000

(to address@hidden, address@hidden, address@hidden)

There is a ruling from the BGH (third level court which is akin to
SCOTUS apart from constitutional matters) regarding first sale aka
exhaustion doctrine.

Consumer rights protection group sued the maker of
http://en.wikipedia.org/wiki/Half-Life_2 asking the court forbid to
suggest in a shrink-wrap EULA that online accounts created with one-time
key (the key comes with a copy of software/game) can not be sold by game
copy owner.

Once you buy a copy of Half Life 2 software and create an online account
your copy becomes pretty much worthless regarding resale if potential
buyer can not reuse the online account you created because the key is
not valid any more to create another account.

Consumer rights protection group argued that it violates the doctrine of
first sale and hence shall be forbidden.

The publisher argued that a copy of game software is more like a ticket
for a show which can not be "reused" once the show is over.

Consumer rights protection group lost on two levels and appealed to the
highest court (the BGH).

The BGH ruled that publisher's practice does not violate first sale
because copies *can* be resold under first sale and suggestion that a
copy may become worthless for resale (after the creation of online
account) is irrelevant. The court explicitly didn't rule on contractual
enforceability of online account resale restriction.

Here is the ruling:

http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&Datum=Aktuell&Sort=12288&nr=52877&pos=4&anz=634

So there is a ruling from the highest court in Germany that
*contractual* resale (of whatever) restriction has nothing to do with
the Uhreberrecht (copyright statute).

Please point out in a petition to reconsider en banc (or directly to
SCOTUS) that the 9th Cir. panel has created not only national (re 2nd
Cir.) but also transnational and transcontinental conflict (for at least
inhabitants of Germany while visiting the 9th Cir. on vacation).

regards,
alexander.

-- 
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)


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