

Google Is Forbidding Users From Reselling, Loaning Glass Eyewear - crgt
http://www.wired.com/gadgetlab/2013/04/google-glass-resales/

======
DannyBee
I see a bunch of folks confusing first sale doctrines, contract law, etc here,
so let me give a very short generalized primer:

1\. The first sale doctrine is exhaustion of a single right of the exclusive
copyright rights. In particular: It states that the right to restrict
_distribution_ [1] terminates upon first sale. It's codified at 17 USC 109,
and states: "... 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. "

As mention, this is exhaustion a very specific right of copyright, and applies
to copyrighted works. In this case, that would be software. It has literally
no bearing on _a contract as part of the sale of goods_ , or whether you can
sue for breach of that contract. It is a defense to _copyright infringement_.

To whit:

If I sell you a book, as part of a contract, and that contract says "no
resale", and you sell it, the first sale doctrine would probably[2] prevent me
from winning a lawsuit for _copyright infringement_ but not prevent me from
winning a lawsuit for for _breach of contract_.

2\. Sales of tangible goods in the US are covered by the UCC (uniform
commercial code). Every state has passed a version of the UCC (though not all
are on the same revision, for this discussion, it doesn't really matter).

The UCC lets you freely contract for almost anything. It fills in and has
default terms when not stated, requires some contracts be in writing, etc, but
there is generally nothing that prevents you from doing something like
preventing resale of an object. You can argue it's unconscionable to a court,
or you can argue it violates some _other law_ (antitrust, whatever), and thus
the court should not enforce it but in most cases, it'll be a valid and
enforceable contract on its face. In general, if you have a legal right to do
something, you can validly contract to forgo that legal right. For example,
you can promise to not marry anyone until age 30, promise to marry someone in
exchange for money, etc (Neither of these would be UCC contracts)

3\. As a final note, for sales of UCC goods, there is no additional
consideration necessary for them to modify the agreement, only the general
requirement of good faith.

I offer literally no opinion on the status of this particular agreement, or
anything like it. The above is also not legal advice (among other things, i've
left out exceptions, and merchant <-> merchant rules, and ...), just an
attempt to clear up some common misconceptions.

[1] "to distribute copies or phonorecords of the copyrighted work to the
public by sale or other transfer of ownership, or by rental, lease, or
lending;" Note that "distribute copies" does not mean "make copies", it
literally means "distribute" an already made copy. Reproduction is a separate
right.

[2] There are some current cases (and past ones) making arguments that you can
contract away your first sale rights. The problem with this idea is that as
titled and written, 17 USC 109 is, IMHO, not an affirmative right (and thus
something you could agree to forego, even though some cases hold it must be
pleaded as an affirmative defense), but instead a limitation on the exclusive
rights _the_ owner has. It's even titled " Limitations on exclusive rights:
Effect of transfer of particular copy or phonorecord".

This is why the standard mechanism software companies attempt to use is to
classify their agreements as _licenses_ that do not transfer ownership, rather
than _sales_ that do. If you are not an owner, the first sale doctrine does
not help you. Success varies in ability to convince courts they aren't selling
software, but instead, licensing it. In the end, it may not matter if they can
succeed by suing for breach of contract rather than copyright infringement :)

------
uncoder0
If you read the terms @<http://www.google.com/glass/terms/> Specifically the
'Device Specific Addendum' at the bottom you can see that this restriction
only applies to the Explorer Edition. I believe this article may be
intentionally omitting this detail to create drama.

~~~
unnali
If you read the terms, in the non-Device Specific Addendum:

> You may not commercially resell any Device, but you may give the Device as a
> gift, unless otherwise set forth in the Device Specific Addendum.

So, nope.

~~~
ok_craig
> May not _commercially_ resell

Sounds like you can still give / gift / sell / otherwise transfer a glass unit
to another individual privately. This all sounds completely normal.

~~~
GHFigs
The addendum for the Explorer Edition states: _you may not resell, loan,
transfer, or give your Device to any other person_.

That's what the story is about, because there are no other editions of Glass.

~~~
ok_craig
I don't understand this reply. I was replying to the comment, not the story
directly. The comment is referring to future editions.

------
simonsarris
This seems normal and precedented.

When they handed out free Chromebooks 860 days ago[1] they had the same terms.

Of course they also said: _"Do not expose the device to water, moisture, or
rap music."_ Not sure how we were supposed to take the rest of the message
seriously...

[1] <https://news.ycombinator.com/item?id=1987536>

~~~
crgt
Isn't there a difference between limiting what you can do with a free
Chromebook and limiting what you can do with something you pay $1500 to
acquire?

~~~
NegativeK
I'd say the difference is a fairly underpowered laptop versus an entirely new
form factor for a mass-produced computing device.

Edit: For underpowered, I meant the hardware for the CR-48, not ChromeOS. The
hardware was unusably slow for me.

------
antihero
If you buy a thing, do they have the right to do this? Is there a difference
between "purchasing a physical item" and "entering a contract where someone
supplies you a physical item on specific terms"?

Surely there are consumer rights that protect us from this insane greedy
abhorrent shit?

What fucking right do companies have over your property? Surely even free-
market capitalists should be recoiling in horror over this massive shit that
is being taken over consumer rights?

The market is only as free as the consumer.

~~~
dannyr
This is not the retail version.

This is a limited run that is meant to be tested by a small number of people.

~~~
NegativeK
And is remarkably similar to the CR-48, which had the same "do not loan, do
not sell" provision.

I wouldn't pay $1,500 for the test hardware with this provision, but I'm going
to withhold my hypothetical anger until Google does this with the consumer
version.

------
swiftonespeaks
This was explicitly stated in the rules for the #ifihadglass lottery in
advance. I'm all for railing against the decay of first-sale rights, but this
seems like a sufficiently limited case that I have no worries. I find the
article to be sorely lacking in such details.

------
crgt
I wonder about the relevance of the recent Supreme Court decision that stopped
publishers from trying to limit the resale of imported textbooks:

[http://www.insidehighered.com/news/2013/03/20/supreme-
court-...](http://www.insidehighered.com/news/2013/03/20/supreme-court-sides-
against-textbook-publishers-resale-imported-works)

But maybe someone with a better understanding of the law could help clarify
the connection - if any?

~~~
greenyoda
With Google Glass you're signing a contract agreeing to specific terms. But
when you buy a book, you haven't signed away any of your rights.

~~~
crgt
So why wouldn't publishers just make people sign a similar agreement if it's
that simple?

~~~
pi18n
Would you sign a contract to get a book?

~~~
pogden
I wouldn't pay $180 for a book either, but most people who buy textbooks don't
have a choice.

------
jfim
That's not different from all the hardware that bears the inscription
"ENGINEERING SAMPLE - NOT FOR RESALE," other than the fact that they're
promoted to a larger public (read: not developers that have drawers full of
obsolete engineering samples). Some of that hardware is not the same hardware
than the retail version and is essentially obsolete as soon as the retail
version comes out, due to a different BOM between the sample and retail
version and the fact that the manufacturer does not want to support the
prototype version with updates.

It doesn't make any sense for Google to restrict the resale of the retail
version, but at this point in time, Google Glass is not a product that is
generally available. If they keep that restriction for the retail version, now
_that_ is news.

------
rickyc091
I sincerely doubt Google will care if it's sold. They stated that you couldn't
sell Google Wave / Voice / Gmail invites, yet they were all over eBay.

"Whether or not users will continue to be allowed to sell invites is unclear
though, as Google Wave's terms say that users are prohibited from "Sell,
trade, resell or otherwise exploit the Service for any unauthorized commercial
purpose," though a number of Google Voice invites can also be found on the
auction service."

<http://mashable.com/2009/09/30/google-wave-invite/>

------
zck
I wonder whether one could do something similar to concert tickets, and allow
resales at face value, but not greater. Louis CK did that for his recent tour,
and there wasn't (unless I missed it) widespread outrage; rather, people were
happy to keep tickets out of the hands of scalpers.

~~~
switz
<http://cashortrade.org>

------
mey
How does this not run afoul of consumer protection rights?

------
Shinkei
The issue I see here is that people were asked to submit entries to this
contest because Google was trying to get product testing information from
people who would actually use it... and in interesting ways. This guy is being
disingenuous (and a douchebag IMHO) if he tries to sell it on ebay before he
even has it in hand. He gives ethical consumers a bad name and should be taken
out of the closed beta test. This is just like all the people/companies who
mass purchase concert tickets the millisecond they come out and resell them at
1000% face value because of "free market" blah blah, but actually they created
the artificial demand and increased the price by speculation.

------
nekojima
I'd feel much better if they explicitly forbid users from wearing this eyewear
around children, in public toilets, beaches, swimming pools, shop changing
rooms, or anywhere else its use could be utilized to fulfill a perversion
(this assumes they have the camera). So basically, probably means they can
just wear them at home.

------
gokhan
> _Welcome to the New World, one in which companies are retaining control of
> their products even after consumers purchase them._

A joke, right? After Amazon's removal of books remotely from Kindles and all
those iSomething from Apple, Glass is far from being the first one.

~~~
addandsubtract
Just because the New World is already a year old, doesn't mean we can't
welcome new people to it.

------
Vivtek
Makes sense. If what they want to do is index people.

------
kunai
This is what RMS has been preaching all along.

It finally makes sense now.

~~~
mh-
except it's not. and nonsensical invocations, like yours, just make skeptics
of his find him even more delusional.

this is a restriction on tester hardware (so-called _Explorer Edition_
devices), which were already only available to people who paid for the
privilege of being able to buy them.

and please save any _slippery-slope_ reply for another thread.

~~~
quadhome
_... paid for the privilege of being able to buy them._

Did they __buy __them or not?

<https://en.wikipedia.org/wiki/First-sale_doctrine>

Edit: upon further reflection, first-sale doctrine is around intellectual
properties like books and music. I presumed there was a legal right to sell
goods you've bought... but maybe not?

~~~
taeric
First sale is only about intellectual properties because it is applied to
copyright. That is, it is necessary to grant you the right to resell something
that contains copyrighted property.

For example, without first sale you couldn't sell a book you legally bought,
because the author still has distribution rights over the story it contains.
(That make sense?)

For physical items, there is not a government granted monopoly to compare.

