Tutorial copyright limitations - Page 4

miahawk · #91 2009-02-23, 11:03am

I'm not a tutorial author. copyright law has been a passion of mine for about 10 years, since I first started publishing information on the web.

I'm wary of the lawyer's assessment of first sale doctrine as it applies to digital files, because they aren't software, but, I agree that since it has yet to be decided in court it's better to err on the side of posting a EULA before purchase is completed.

IF the lawyer is right, that really puts tut authors between a rock and a hard place. since Etsy doesn't allow for a EULA agreement tut authors who sell on Etsy would basically have to accept that they're giving permission for their tuts to be resold.

I still think that the ebooks issue is going to be more like the music issue as being addressed by bopaboo, since both a music file and a tut file are essentially the same, and much less like a computer program, since computer programs are OS dependent and interactive and music and tut files are both passive and file handler dependent.

Rudy · #92 2009-02-23, 11:06am

//

Quote:

Originally Posted by Rudy

OK...now don't kill the messenger....here goes! The attorney I referred to just called me...I explained the situation to him as follows:

I buy a glass tutorial from an author that sells the product on line. The tutorial is in pdf form and usually includes photographs and instructions. I finish using the tutorial and decide that I don't need it anymore...can I sell it or give it to a friend...assuming that I destroy any of my own copies, etc....

Before responding, he asked me if at any time during the purchase do I get a "box" that provides a warning with specific instructions about the prohibited sale or other disposal of the tutorial, etc.... After reading the instructions you would be required to respond to a question: I have read and understand the conditions, limits, instructions, etc......blah...blah....and agree to comply..... Then you are required to check "yes" or "I do"....or "no" or "I don't." If you check "I do," the system allows the purchase or download process to continue...If you say "no," the sale is not executed or completed.

I mentioned that some of the tutorials contain a few lines notifying the purchaser that he/she may not sell or gift the tutorial, etc.... the attorney noted that those words are not binding, and that if that is the only warning, the buyer has the right to sell or gift the tutorial....without keeping an extra copy.

We talked about the "digital" issue surrounding music, etc....he noted that that issue is still being argued and has not been resolved. He also noted that it's a different issue.

Now, like I said...don't shoot the messenger (me)...I'm just sharing the information I obtained from this copyright lawyer.

I'm sure most of you are familiar with the "box" that he is referring to...I know I get that box when I'm downloading software for purchased computer programs, etc...

As far as I'm concerned, I believe that it's the buyer's decision whether to sell or not sell tutorials like the ones that I've purchased.

The box referred to above.

Rob · #93 2009-02-23, 11:10am

Quote:

Originally Posted by Rudy

It sounds to me like that warning box that the lawyer referred to is key.....if you don't agree to the conditions prior to the purchase....you don't get to make the sale. At least when it comes to web sales.

That sounds to me to be the case as well. I don't know, I couldn't say. However it does sound that if one agreed to not sell at point of purchase it is binding, if not then its not.

I'd love to know for sure.

I don't buy tutorials. I just don't. I'd rather pay more and get a book, or dvd then pay less for a pdf file. Its just the way I am. <shrug> And I prefer the book over the dvd. although I do like books that also have a dvd. This has nothing to do with re-sale, but everything to do with I like to curl up with a book, and dislike having to read a computer screen.

So for people doing tutorials, please do consider doing them as books. or even three hole pages to fit a binder printed on quality paper etc...

Rudy · #94 2009-02-23, 11:13am

I vote for the books...I'd prefer them, and I'd be willing to pay more for them. Maybe that will be the wave of the future. I hope!

miahawk · #95 2009-02-23, 11:20am

this brings up some interesting problems. in vernor vs. autodesk, it was found for the plaintiff because he had not agreed to the EULA and he was selling legally obtained copies, i.e. original software disks.

as was stated in the article I posted on the last page, one of the problems with reselling digital files is what constitutes the original and what constitutes the copy, which will likely be established somehow as the issues brought up by bopaboo are addressed. I'm betting what will happen is that bopaboo will end up handing over a slice of the pie to relicense music files, or that the music labels will put an end to bopaboo. whichever it is, it will likely establish legal precedence for transferring digital files, not just music.

miahawk · #96 2009-02-23, 12:09pm

ok, I'm back on this thing about the EULA! been reading and thinking more while I wait for some furniture.

I know the lawyer said that if limitations weren't stated in a EULA that had to be agreed to before purchase, then limitations were not binding...

HOWEVER, that would only apply to limitations beyond normal copyright, i.e. terms of use or licensing, so the question still remains, are you selling the original, or a copy, when you resell a tut, and does first sale apply? the copyright office memorandum addressing digital first sale differentiates digital works because of these issues.

I know someone who got bad info from four different copyright lawyers, because copyright law has a lot of holes in it and it's not always clear. even though the lawyer you spoke with said without a EULA, first sale doctrine applies, I don't know that we should assume that would be the decision of a court. EULA's exist to create an agreement between seller and purchaser. without a EULA, copyright still applies and it hasn't been established yet that digital media buyers are entitled to first sale.

Paul Ewing · #97 2009-02-23, 12:25pm

And remember that advice from a lawyer that you haven't paid for is worth what you paid for it. Unless they are willing to back you up in court on their dime because of bad advice, I would stick with a conservative optionand go with what the copyright office says until some other sucker pays to have it decided in court. Try selling your iTunes or Kindle books and see how long it takes you to get sued.

Moth · #98 2009-02-23, 1:40pm

Thanks for letting us know what he said, Rudy!

I don't see myself putting the eula box on any of my tutorials. They are difficult enough to sell without making the buyers (who are mostly my peers and are known people to me) jump through hoops.

Hugs.
~~Mary

squid · #99 2009-02-23, 2:02pm

Quote:

Originally Posted by Paul Ewing

And remember that advice from a lawyer that you haven't paid for is worth what you paid for it. Unless they are willing to back you up in court on their dime because of bad advice, I would stick with a conservative optionand go with what the copyright office says until some other sucker pays to have it decided in court. Try selling your iTunes or Kindle books and see how long it takes you to get sued.

In both of those cases, you have agreed not to sell them, so it is not the same.

Rudy · #**100** 2009-02-23, 3:59pm

Just for sake of thoroughness, the atty I conferred with (who I'm told is one of the best), forwarded this to me....so I thought I'd pass it on. It's long, but if anyone is interested, it's a good read. In the end, the buyer won.

Court smacks Autodesk, affirms right to sell used software

With the help of Public Citizen, an eBay merchant has won the right to sell used copies of AutoCAD on eBay. Autodesk had sought to block the sale under the software's license agreement, but a court ruled that such sales were legal under copyright's First Sale Doctrine.

By Timothy B. Lee | Last updated May 23, 2008 12:21

A federal district judge in Washington State handed down an important decision this week on shrink-wrap license agreements and the First Sale Doctrine. The case concerned an eBay merchant named Timothy Vernor who has repeatedly locked horns with Autodesk over the sale of used copies of its software. Autodesk argued that it only licenses copies of its software, rather than selling them, and that therefore any resale of the software constitutes copyright infringement.

But Judge Richard A. Jones rejected that argument, holding that Vernor is entitled to sell used copies of Autodesk's software regardless of any licensing agreement that might have bound the software's previous owners. Jones relied on the First Sale Doctrine, which ensures the right to re-sell used copies of copyrighted works. It is the principle that makes libraries and used book stores possible. The First Sale Doctrine was first articulated by the Supreme Court in 1908 and has since been codified into statute.
Dueling DMCA notices

As we discussed when the lawsuit was filed last year, Vernor makes his living selling used comic books, video games, software, and collectibles. He obtains these items at garage sales, office sales, and flea markets and auctions them off on eBay. When he began selling used copies of AutoCAD software, he attracted the attention of its manufacturer, Autodesk, which began filing infringement notices under the Digital Millenium Copyright Act. After each notice, Vernor filed a counter-notice stating that he was selling authentic, used copies of the software. After the fifth such altercation, eBay suspended his account, preventing him from earning a living for a month.

Wanting to continue selling used software but fearing another suspension of his eBay account, Vernor sought the help of the progressive advocacy organization Public Citizen. They filed suit in federal court last year seeking a declaration that his actions were legal under copyright law and that Autodesk was abusing the DMCA by filing take-down notices. He argued that under the First Sale Doctrine, he was entitled to re-sell authentic copies of Autodesk's software with or without the company's permission.

In its reply, Autodesk argued that Vernor was not the lawful owner of the software he was selling because Autodesk only licenses copies of its software rather than selling them. Therefore, Autodesk claimed, no "sale" to the software's original owner had occurred, and the First Sale Doctrine did not apply. Moreover, Autodesk noted, the license terms specifically prohibited transferring the software to another party, which meant that Vernor could not legally acquire it without Autodesk's permission.
Quacks like a duck

But as Vernor's lawyers pointed out, the distinction between a lease and a sale is based on the actual characteristics of the transaction, not merely on how the transaction is described by the parties. And characterizing AutoCAD as merely licensed, rather than sold, barely passes the straight face test. AutoCAD customers pay a lump sum at the time of purchase, with no obligation to make further payments or to return the software at the conclusion of the supposed lease. Even more damning, Autodesk's own website offers customers a variety of "purchase options" and the opportunity to "buy online" directly from Autodesk, with no indication that "buy" really means "license." Similarly, online retailer CDW offers customers an option to "lease" AutoCAD as an alternative to purchasing a copy.

As the Electronic Frontier Foundation's Corynne McSherry put it in a Thursday blog post, "if it looks like a duck and quacks like a duck, chances are it's a duck." Autodesk clearly sells its software, and merely re-labeling the transaction as a license doesn't negate the First Sale Doctrine.

Vernor's lawyers also noted that he had never opened the AutoCAD packages and installed the software contained inside. Therefore, to the extent the licensing agreements were enforceable, they were enforceable against the original owners, not against Vernor. And even if the license agreements did somehow bind Vernor, at most Vernor could be guilty of breach of contract, not copyright infringement, which makes the use of the DMCA inappropriate.
Judge: AutoCAD is sold, not licensed

In a 21-page decision, Judge Jones sided with Vernor. Citing the 1977 case of United States v. Wise, which involved the sale of used films obtained under dubious circumstances, Jones found that the Ninth Circuit's precedents suggested that the circumstances surrounding the sale of AutoCAD software constituted a sale, not merely a license. Therefore, the First Sale Doctrine applied, and Vernor was not bound by any of the terms in Autodesk's license agreement.

But the judge acknowledged that three more recent Ninth Circuit decisions involving software seemed to cut in the opposite direction without explicitly overturning Wise. Jones found that Wise was controlling precedent, and ruled in Vernor's favor. If the case gets appealed to the Ninth Circuit, the conflict among these precedents is likely to occupy the court's attention. The trio of more recent cases hints that the Ninth Circuit is sympathetic to characterizing software sales as licenses for legal purposes. However, none of those cases involved circumstances exactly like Vernor's, and the court never dealt squarely with the question of what factors determine whether software is sold or licensed.

If Jones's ruling is upheld on appeal, it will have important consequences for the software industry, where the legal fiction that software is merely licensed is widely employed. In addition to discouraging the market for used software, software firms have also attempted to use the "licensed, not sold" theory to enforce restrictions on reverse engineering that would otherwise be fair use under copyright law. If software is sold, rather than licensed, then no license is required to install and use the software, and the terms of shrink-wrap licenses may not be legally binding.

The Autodesk case is not the only case regarding the first sale doctrine working its way through the courts. Another lawsuit filed last summer concerns another eBay seller who sells used promo CDs. Like Vernor, the plaintiff in that case faced repeated DMCA takedown notices and sued to vindicate his right to sell used merchandise online. EFF is representing the plaintiff in that case, and McSherry tells Ars that while there are important differences between the cases, the opinion bodes well for EFF's case because "it affirms that copyright owners can't use license restrictions to strip away first sale rights."

Rudy · #**101** 2009-02-23, 4:01pm

I wonder if "Jack" is following this?

Melodie · #**102** 2009-02-23, 4:20pm

I'm not sure how the suit against AutoDesk relates to lampworking tutorials. The tutorials are downloaded in a PDF format, as the case with music downloads you have no tangible object upon purchase. AutoDesk products are only sold on CD, they are not downloadable. To fall within the First Sale Doctrine don't you have to have a tangible object?

I could easily be wrong. I just remember discussions about this when AutoDesk lost the suit. I've used AutoCAD for almost 20 years and followed some of the discussions after the verdict. There was talk (only by the ones discussing the issue) that AutoDesk products, in the future, may only be downloadable to avoid falling within the First Sale Doctrine.

ETA: I'm not claiming to have the least bit of knowledge when it comes to copyright issues ... I just asked the above because I remember the discussions after the AutoDesk verdict. I actually always thought it a bit strange that you paid over $5k for a program and about $500/ per upgrade that the software was never considered yours to do with as you pleased.

likes to make glass stuff · #**103** 2009-02-23, 4:44pm

Quote:

Originally Posted by Melodie

I'm not sure how the suit against AutoDesk relates to lampworking tutorials. The tutorials are downloaded in a PDF format, as the case with music downloads you have no tangible object upon purchase. AutoDesk products are only sold on CD, they are not downloadable. To fall within the First Sale Doctrine don't you have to have a tangible object?

I could easily be wrong. I just remember discussions about this when AutoDesk lost the suit. I've used AutoCAD for almost 20 years and followed some of the discussions after the verdict. There was talk (only by the ones discussing the issue) that AutoDesk products, in the future, may only be downloadable to avoid falling within the First Sale Doctrine.

ETA: I'm not claiming to have the least bit of knowledge when it comes to copyright issues ... I just asked the above because I remember the discussions after the AutoDesk verdict. I actually always thought it a bit strange that you paid over $5k for a program and about $500/ per upgrade that the software was never considered yours to do with as you pleased.

In order to copyright a tutorial, it's got to be tangible. From my reading, yes, hard drives count as tangible. They can't be tangible for copyright purposes, then intangible for resale purposes

Paul Ewing · #**104** 2009-02-23, 4:59pm

Quote:

Originally Posted by likes to make glass stuff

In order to copyright a tutorial, it's got to be tangible. From my reading, yes, hard drives count as tangible. They can't be tangible for copyright purposes, then intangible for resale purposes

Yes, but the sale is not the sale of the tutorial is not of the tangible item (the hard drive with the copy). That is the distinction that is made on electronic distribution.

Paul Ewing · #**105** 2009-02-23, 5:07pm

Quote:

Originally Posted by Melodie

ETA: I'm not claiming to have the least bit of knowledge when it comes to copyright issues ... I just asked the above because I remember the discussions after the AutoDesk verdict. I actually always thought it a bit strange that you paid over $5k for a program and about $500/ per upgrade that the software was never considered yours to do with as you pleased.

I wouldn't be surprised if AutoDesk wins the appeal. There have been some duzy court decisions where computers are concerned by courts not understanding the technologies.

As far as licensing fees for software, $5,000 is chump change. Go to mainframe software and you will see $500,000+ initial licensing fees and 18% to 20% yearly maintenance fees. Actually most mainframe software is sold on yearly licenses with kill code in it that doesn't let you use it if you haven't paid for the renewal.

Not only that, but even moving computers can hit you with a fee. Say your company gets bought out and they want to move everything to the new companies mainframe. There is a good chance you will have to re-license everything. If you are lucky you might get a 20% to 30% discount.

Hayley · #**106** 2009-02-23, 5:33pm

Quote:

Originally Posted by likes to make glass stuff

In order to copyright a tutorial, it's got to be tangible. From my reading, yes, hard drives count as tangible. They can't be tangible for copyright purposes, then intangible for resale purposes

Having your pdf tutorial in your hard drive doesn't make it a tangible property UNLESS you intend to sell your hard drive WITH your pdf file.

As far as the government is concerned, digital media is NOT a tangible property. For example, I sell the Silver Exchange e-Booklets in both pdf as well as CD formats. For the CD ones, I have to charge sales tax for California residents for those are TANGIBLE property. For the pdf ones, they are tax exempt for they are NOT tangible property.

The same applies to my graphic design business - if I give my clients a CD/DVD containing the work I do for them, I have to charge them sales tax (25% of my fees, don't ask why 25%!) . . . but if I email or ftp the work, I don't charge sales tax for those are NOT tangible property.

pam · #**107** 2009-02-23, 8:07pm

Hi Rudy,

Thanks so much for the effort you made in finding answers to this. I accepted what you said in your post #86, but then you lost me with the follow-up in post #100. That post makes me believe the attorney didn't fully understand because he is comparing the tutorial to software.

Thanks again.

miahawk · #**108** 2009-02-23, 8:40pm

the reading I've done on the Vernor case indicates that Vernor won because he never agreed to the EULA so was not an end user, and he was selling original CDs (tangible items), not downloaded files (intangible) and since the CDs were tangible, they could be sold. it's unknown at this point if the customers he sold them to can legally use the software.

the Vernor case is also dealing with software, not with files. a pdf is essentially the same thing as a graphic file or a music file. it's data that can be read by another program, not a program itself.

if a tutorial can be resold, then it follows that downloadable digital art purchased for the purpose of using in a project can be sold once the project is completed. that really disturbs me, because an author or artists is supposed to be able to control the publishing of their work. automatic permission to resell digital copies removes that control from their hands.

laserglass · #**109** 2009-02-24, 6:23am

patents, copyrights, and trademarks are worthless unless you have enough money to pay a lawyer to take your infringement case to court. otherwise having a patent, copyright, or trademark is only academic. if you sold something, the buyer can resell it, no matter if it is a DVD, CD, or book. they should not keep a copy of the DVD, CD, or book, but it could happen.

Rudy · #**110** 2009-02-24, 6:52am

Quote:

Originally Posted by pam

Hi Rudy,

Thanks so much for the effort you made in finding answers to this. I accepted what you said in your post #86, but then you lost me with the follow-up in post #100. That post makes me believe the attorney didn't fully understand because he is comparing the tutorial to software.

Thanks again.

Hi Pam,

You are welcome! : - ) I've seen these threads before and after reading the heated arguments, it always seemed that the issue remained unresolved. That's why I decided to ask a few lawyers that are in the "business."

I am confident that the copyright lawyer that I spoke to understood "our" situation perfectly, and he was nice enough to do a little research for us. I had mentioned the Vernor case (post 100) to him because Miahawk had referred to it, and he forwarded some information on that case.

For ME, I feel that I have enough information to make my own decisions on this issue. Given what I've learned, I believe that the tutorials can be sold...I know that it's unfortunate for the tutorial authors, and I personally, will not sell my own tutorials simply because I choose not to...not because I'm prohibited from doing so.

Rudy · #**111** 2009-02-24, 7:01am

Quote:

Originally Posted by laserglass

patents, copyrights, and trademarks are worthless unless you have enough money to pay a lawyer to take your infringement case to court. otherwise having a patent, copyright, or trademark is only academic. if you sold something, the buyer can resell it, no matter if it is a DVD, CD, or book. they should not keep a copy of the DVD, CD, or book, but it could happen.

I agree!

pam · #**112** 2009-02-24, 9:59am

Hi Rudy, I was just doing further research, of course! I just don't know.

Here is a website I found interesting.
http://www.csusa.org/face/home.htm

I also, from there, did some research on the NET Act (no electronic theft act) and from there went to several other government websites. Some of the reasoning is that assuming that first-sale did apply to digital copies, what would prevent someone from "first-selling" any number of times, and then the persons they sold to "first-selling" any number of times. To be perfectly frank that never occurred to me, but now that I have thought of it, it seems reasonable that the law would not permit that to happen. Theoretically the author could sell a person one copy and never sell another one since it could be theoretically be distributed to all the world population.

Something is not making sense. I have to keep going on my research, but thanks again for asking the attorney. Logically speaking it just doesn't seem right to me from what I have read.

Damselfly · #**113** 2009-02-24, 10:20am

<snip>

Quote:

Originally Posted by pam

what would prevent someone from "first-selling" any number of times, and then the persons they sold to "first-selling" any number of times.

</snip>

What's preventing it, so to speak, is that is illegal even under the First Sale law. You can only sell your one copy, and you're supposed to remove it from your computer if you do.

Yes, it's a bit of the "honor system" there, but then again, the whole sale of tutorials has a bit of the honor system in it already, because you're hoping that people won't forward, copy, or print off multiple copies for multiple people.

And assuming that first sale doctrine would apply, if someone went around and sold hundreds of copies of the same tutorial, someone would probably notice, just like that one person got busted for distributing that one tutorial.

Obviously, it's not a perfect system, but no system is perfect.

Rudy · #**114** 2009-02-24, 11:15am

Pam,

I think that no matter the issue, there are always arguments that can be made... and that can go on forever.

From what I've read and heard, I DO BELIEVE THAT A BUYER CAN RESELL A TUTORIAL....however, whether one believes that or not....the bottom line is....what Mark Wilson said in post 109

-------------------------------------------
"patents, copyrights, and trademarks are worthless unless you have enough money to pay a lawyer to take your infringement case to court. otherwise having a patent, copyright, or trademark is only academic. if you sold something, the buyer can resell it, no matter if it is a DVD, CD, or book. they should not keep a copy of the DVD, CD, or book, but it could happen.

Unfortunate but, true!

If anyone comes up with case law that proves that a tutorial can't be re-sold, I'm sure we'll hear about it...in the meantime, I think it's a personal decision. I'm pooped!

Rudy · #**115** 2009-02-24, 11:17am

I also think that what "Jack" said in post # 28 is true.

Quote:

Originally Posted by jack

Hi All,

From what I am hearing, it sounds like the choice to sell or not sell is a personal one. Due to the nature of the topic, no matter the choice...it also sounds like there will always be some disagreement.

laserglass · #**116** 2009-02-24, 12:25pm

how do you know that the person selling their own tutorial to others, is not in fact breaking the law because the work is essentially identical to the prior art of another artist? can you copyright a shape, a color pattern? it has all been done before, but maybe back then, no one thought that they could own the sky.

miahawk · #**117** 2009-02-24, 2:05pm

Quote:

Originally Posted by laserglass

patents, copyrights, and trademarks are worthless unless you have enough money to pay a lawyer to take your infringement case to court. otherwise having a patent, copyright, or trademark is only academic. if you sold something, the buyer can resell it, no matter if it is a DVD, CD, or book. they should not keep a copy of the DVD, CD, or book, but it could happen.

none of that nullifies the law. I'm actually kind of interested in the legal discussion, not what people do.

miahawk · #**118** 2009-02-24, 2:07pm

Quote:

Originally Posted by laserglass

how do you know that the person selling their own tutorial to others, is not in fact breaking the law because the work is essentially identical to the prior art of another artist? can you copyright a shape, a color pattern? it has all been done before, but maybe back then, no one thought that they could own the sky.

you can't copyright a list of ingredients, but you can copyright your description of how to put them together, along with your illustrations and photos. how many cookbooks are there with the same bread and cookie recipes? LOTS. their authors are all entitled to the same copyrights.

miahawk · #**119** 2009-02-24, 3:04pm

here is a very good article from Yale, authored by a computer science professor and a law department fellow:
http://www.cs.yale.edu/~jf/MF.pdf

their conclusion is a good one, that copyright actually comes down to public and private rights of distribution. according to them, to uphold the spirit of copyright law, it would be perfectly legal to have a friend come over and torch with you using a digital tutorial you bought, but it would not be legal to sell the tutorial once you're done with it, because that would be considered public distribution.

Damselfly · #**120** 2009-02-24, 4:06pm

I read that article, and thought what it was trying to say was that posting the tutorial to your website for people to download would be considered public distribution, or making it available to more than one person. Some of the language could be interpreted to include selling a copy and keeping it on your computer rather than deleting it.

While the article talked about First Sale of tangible vs. intangable, they also said that they're being radical by saying that First Sale wouldn't apply to public distribution, meaning to me that they're creating their own interpretation that isn't necessarily a written law. They also said that distribution between two private parties (ie, a daughter and father) would be private distribution, not public.

So while that was an interesting article, I don't think it speaks to the letter of the law, nor provide anything definative toward this particular issue.