Legal Question in Technology Law in Arizona

Do these terms violate the first sale doctrine?

(*Note: I've copy/pasted the terms at the bottom of this question)

This website produces DVD's for sale that teach how to use other 3rd party software. A few years ago I bought 4 DVD's from them that have since just been sitting in a bookcase collecting dust, so i decided to sell them. A friend suggested that I might try to offer them to the college school library that I had attended in the past, as they often will buy relevant material.

I'm not copyright guru, so maybe I'm just misinterpreting what they're trying to say, but it sounds like they're trying to claim copyright infringement if anyone sells their material, regardless of form (physical DVD or virtual), unless the "Library Version" of the DVD is purchased, which happens to be significantly more expensive.

Obviously...well, to me it seems obvious that would conflict with the first sale doctrine(granted all my training came from Wikipedia). Since I legally purchased the physical DVD's, they should be my property and I'm allowed to resale them to anyone. Including a school that would put them in their library for student use.

*Just to clarify I own 4 separate physical DVD's from them, I don't own a virtual copy, or the "Library Version" that they try to sell.

TERMS:

Notice: You are not allowed to copy, lend, redistribute, sell, lease, or license the content purchased on this site in any form except for institutions which purchase a Library version for lending and instruction.

The Library version allows the institution to lend the DVDs to the faculty, staff, students and other authorized users affiliated with the institution for use on and off institutional premises. Authorized users, however, may not copy the DVDs or lend them to unauthorized users. The Library version will only receive the physical DVDs and not the Downloads. Redistributing the downloads in any form is strictly prohibited since it would be a form of copying the content.

If Educational Institutions or any other Studios would like to purchase a copy for Library Use, please purchase the Library version of the DVDs for $195 each. We also have many options from streaming on your intranet, to discounts on bulk purchases, please contact us using the support form for more info on streaming or if you have any questions about the Library Versions.

The following terms and conditions govern all use of the (Website Address Removed) website and all content, services and products available at or through the website, including, but not limited to, the (Website Address Removed) training video streaming service. The Website is owned and operated by (Website Address Removed). The Website is offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, (Website Address Removed) Privacy Policy) and procedures that may be published from time to time on this Site by (Website Address Removed) (collectively, the "Agreement").

Please read this Agreement carefully before accessing or using the web site. By accessing or using any part of the web site, you agree to become bound by the terms and conditions of this agreement. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any services. If these terms and conditions are considered an offer by (Website Address Removed), acceptance is expressly limited to these terms.

By submitting Content to (Website Address Removed) for inclusion on your Website, you grant (Website Address Removed) a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting your website. If you delete Content, (Website Address Removed) will use reasonable efforts to remove it from the Website, but you acknowledge that caching or references to the Content may not be made immediately unavailable.

Without limiting any of those representations or warranties, (Website Address Removed) has the right (though not the obligation) to, in (Website Address Removed) 's sole discretion (i) refuse or remove any content that, in (Website Address Removed)'s reasonable opinion, violates any (Website Address Removed) policy or is in any way harmful or objectionable, or (ii) terminate or deny access to and use of the Website to any individual or entity for any reason, in (Website Address Removed)'s sole discretion. (Website Address Removed) will have no obligation to provide a refund of any amounts previously paid.

Return Policy. We do not accept returns except if the product was delivered to you damaged or not working.

Refund Policy. All sales are final and non-refundable.

Cancellation Policy. We do not allow order cancellation unless the product has both not been downloaded and not been shipped.

Delivery / Shipping Policy. Please allow 1-2 Business Days to process orders. We are not responsible for international shipment delays due to your countries postal service or customs. If your order is returned to us, you will have to pay for shipping again and will be contacted via email.

Fees and Payment. We are not responsible for custom fees or taxes on international orders when importing our products.

Optional paid services such as file downloads, DVD purchases or streaming training videos are available on the Website. By selecting a service you agree to pay (Website Address Removed) the one time, monthly or annual subscription fees indicated for that service (the payment terms for streaming training videos are described below). Payments will be charged on the day you sign up for a service and will cover the use of that service for a monthly or annual period as indicated. Service fees are not refundable.

Purchasing Training Videos. Support.

Paid Customers include access to email support. "Email support" means the ability to make requests for technical support assistance by email at any time (with reasonable efforts by (Website Address Removed) to respond within two business days) concerning the use of the Services.

Responsibility of Website Visitors.

(Website Address Removed) has not reviewed, and cannot review, all of the material, including computer software, posted to the Website, and cannot therefore be responsible for that material's content, use or effects. By operating the Website, (Website Address Removed) does not represent or imply that it endorses the material there posted, or that it believes such material to be accurate, useful or non-harmful. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. The Website may contain content that is offensive, indecent, or otherwise objectionable, as well as content containing technical inaccuracies, typographical mistakes, and other errors. The Website may also contain material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. (Website Address Removed) disclaims any responsibility for any harm resulting from the use by visitors of the Website, or from any downloading by those visitors of content there posted.

Content Posted on Other Websites.

We have not reviewed, and cannot review, all of the material, including computer software, made available through the websites and webpages to which (Website Address Removed) links, and that link to (Website Address Removed). (Website Address Removed) does not have any control over those non-(Website Address Removed) websites and webpages, and is not responsible for their contents or their use. By linking to a non-(Website Address Removed) website or webpage, (Website Address Removed) does not represent or imply that it endorses such website or webpage. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. (Website Address Removed) disclaims any responsibility for any harm resulting from your use of non-(Website Address Removed) websites and webpages.

Intellectual Property.

This Agreement does not transfer from (Website Address Removed) to you any (Website Address Removed) or third party intellectual property, and all right, title and interest in and to such property will remain (as between the parties) solely with (Website Address Removed). (Website Address Removed), (Website Address Removed), the (Website Address Removed) logo, and all other trademarks, service marks, graphics and logos used in connection with (Website Address Removed), or the Website are trademarks or registered trademarks of (Website Address Removed) or (Website Address Removed)'s licensors. Other trademarks, service marks, graphics and logos used in connection with the Website may be the trademarks of other third parties. Your use of the Website grants you no right or license to reproduce or otherwise use any (Website Address Removed) or third-party trademarks.

Changes.

(Website Address Removed) reserves the right, at its sole discretion, to modify or replace any part of this Agreement. It is your responsibility to check this Agreement periodically for changes. Your continued use of or access to the Website following the posting of any changes to this Agreement constitutes acceptance of those changes. (Website Address Removed) may also, in the future, offer new services and/or features through the Website (including, the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of this Agreement.

Termination.

(Website Address Removed) may terminate your access to all or any part of the Website at any time, with or without cause, with or without notice, effective immediately. If you wish to terminate this Agreement or your (Website Address Removed) account (if you have one), you may simply discontinue using the Website. Notwithstanding the foregoing, if you have a VIP Services account, such account can only be terminated by (Website Address Removed) if you materially breach this Agreement and fail to cure such breach within thirty (30) days from (Website Address Removed)'s notice to you thereof; provided that, (Website Address Removed) can terminate the Website immediately as part of a general shut down of our service. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

Disclaimer of Warranties.

The Website is provided "as is". (Website Address Removed) and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. Neither (Website Address Removed) nor its suppliers and licensors, makes any warranty that the Website will be error free or that access thereto will be continuous or uninterrupted. You understand that you download from, or otherwise obtain content or services through, the Website at your own discretion and risk.

Limitation of Liability.

In no event will (Website Address Removed), or its suppliers or licensors, be liable with respect to any subject matter of this agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any special, incidental or consequential damages; (ii) the cost of procurement or substitute products or services; (iii) for interruption of use or loss or corruption of data; or (iv) for any amounts that increase the fees paid by you to (Website Address Removed) under this agreement during the twelve (12) month period prior to the date the cause of the action accrues. (Website Address Removed) shall have no liability for any failure or delay due to matters beyond their reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.

General Representation and Warranty.

You represent and warrant that (i) your use of the Website will be in strict accordance with the (Website Address Removed) Privacy Policy, with this Agreement and with all applicable laws and regulations (including without limitation any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and including all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside) and (ii) your use of the Website will not infringe or misappropriate the intellectual property rights of any third party.

Indemnification.

You agree to indemnify and hold harmless (Website Address Removed) , its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys' fees, arising out of your use of the Website, including but not limited to out of your violation this Agreement.

Miscellaneous.

This Agreement constitutes the entire agreement between (Website Address Removed) and you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an authorized executive of (Website Address Removed) , or by the posting by (Website Address Removed) of a revised version. Except to the extent applicable law, if any, provides otherwise, this Agreement, any access to or use of the Website will be governed by the laws of the state of Texas, U.S.A., excluding its conflict of law provisions, and the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in Travis County, Texas. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. ("JAMS") by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in Austin, Texas, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys' fees. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties' original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; (Website Address Removed) may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.

18723 reads

Asked on 3/18/13, 1:37 am

1 Answer from Attorneys

John Mitchell Interaction Law
0 users found helpful
0 attorneys agreed

From your perspective, it may not be so much a question of whether the terms "violate" the first sale doctrine as a question of whether your first sale doctrine rights are superior to the terms.

For starters, it warrants mentioning that the first sale doctrine, as codified since 1909, has never required that there be a sale at all. Under the current codification, you only need to be the "owner" of a copy that was "lawfully made" under the Copyright Act. 17 U.S.C. 109(a) states, in relevant part, "Notwithstanding the provisions of section 106(3) [i.e., the copyright owner's exclusive right to distribute copies of the work], the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord."

There is another part of the so-called first sale doctrine that is often forgotten, but helps explain the point Congress was trying to codify, and that is that "copies" and "copyrights" are two different things, and just because you own the copy does not give you any copyright over the work embodied in the copy, and conversely, just because you own the copyright does not give you any control over copies of it that you don't own. 17 U.S.C. 202 states:

"Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object."

So, there you have it. If you own the copy, and the copy is a non-infringing copy, then you are entitled to sell it, lend it or give it away without needing the copyright owner's permission.

One word of warning, the Supreme Court has under consideration a specific question of whether the rule does not apply if the non-infringing copy was made outside of the United States. As silly as it seems, some U.S. copyright owners have been arguing, with some degree of success, that copies they (the U.S. copyright owners) make outside of the United States are not "lawfully made" under the U.S. Copyright Act (which gives them the exclusive right to make them) because the U.S. Copyright Act does not apply outside of the United States. See Kirtsaeng v. John Wiley & Sons, Inc., upon which the Supreme Court is expected to publish it's decision as early as tomorrow. http://www.scotusblog.com/case-files/cases/kirtsaeng-v-john-wiley-sons-inc/

So, just to be on the safe side, take a look at your copies to see whether there is any indication as to whether the copies were made outside of the United States.

I have represented a number of clients who have sold or rented DVDs, computer software, and textbooks over the objection of the publisher, and would be happy to consult with you further, or if the publisher in this case (which sounds like perhaps the publisher of the Eat 3D series) hassles you about it. But keep in mind that, at least at this time, I am not your attorney, and this response is for general information on the first sale doctrine, and not specifically with respect to how it applies to the DVDs you own or your rights with respect to the publisher or seller. The details might change the picture. For example, if you agreed with the seller that you would not re-sell them, and the seller is not the copyright owner, your attorney might want to explore whether this would be a breach of contract even if not copyright infringement. Section 109 is a limitation on the rights of copyright owners, not on the rights of anyone else.

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3/18/13, 3:18 pm

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