Motorola legal tie to pull pricey Aura phone off eBay Once you’ve grown tired of your mobile phone then it’s your prerogative to flog it on eBay, right? Not if you buy Motorola’s upcoming Aura phone, because the firm’s penned a contract to prevent secondhand sales. Aura_03 Motorola's Aura: won't appear on eBay A source close to the company told Register Hardware that in order …
I seem to recall that some "Right to Buy" council house contracts came with a clause stating that if you were selling it within X years of purchase, you could only sell it back to the council.
I also seem to recall that this went to the courts and a judge ruled that statutory terms of sale overruled the restrictive contract: ie you've bought it, you can sell it to anyone you want.
So it would appear that, in the UK at least, the only legal way to stop someone selling something is not to let them buy it in the first place.
Might we see a return to the phone rental model from days of yore?
Hmm, lets see now ...
Illegal control of secondary market. Almost certainly unenforceable under Unfair Terms in Consumer Contracts Regulations.
I could see then **trying** to put the frighteners on people, but I doubt they'd ever be stupid enough to actually do anything beyond writing stupid letters.
Does this sound like an unenforceable form contract to anyone else? If it was business to business, well, that would be another thing; but it seems to me this does somewhat imbalance the rights of the parties in favour of Motorola. What, say, if someone bought the phone and then didn't like it? It seems fair to make good the loss by selling on. Would a court ever enforce a Motorola claim along these lines?
Christ-all-bloody-mighty. Mine cost €50, works fine.
I think you can get a working 1970's BT Trimfone on ebay for the same, which lasts longer. D'ohhhh. More money than sense, some twats.
Oh, so if I can't sell it, I don't own it? Title of Ownership? So, who does? Rental? Operator? Motorola?
Effing 'Merkan laws. Daft as brushes. Hope Osama Bin Liner gets in as prez next week. Whatever.
I guess this could be some ploy by Motorola to ensure that only the cream of the crop bell ends buy this phone?
Let's face it, you'd be a tit for paying $2000 for a phone in the first place, but doing that AND signing this contract is surely reserved for BMW driving 'executive arseholes'?
First Sale Doctrine covers copyrighted works, and the right to sell your one licensed copy along with the imposed lincenses from the publisher to a third party. Tangible assets outside of copyrighted material (patented items) are covered by different regulations.
It all falls down to Staturoty Rights. If transfer of ownership ("Sale") takes place, then the legal owner has the Statutory Right to sell that item. If it does not, e.g. if a contractual clause states that no right to resell is granted, then you can't sell it. It's up to you to decide whether you wish to purchase the item with this in mind, or if you do not want to be restricted. Your choice is to either buy the phone and be restricted, or not buy the phone. That remains your choice, though.
IANAL, but i'm slightly better informed after reading up on Statutory Rights for the past 5 minutes. As for Unfair Terms in Consumer Contract Regulations, after reading it I can't see any indication of restricting sale to a third party as being unfair.
I'd be interested to see what would actually happen, since you're breaching the contract. Motorola's only remedy would be recouping their actual losses; I assume from losing a sale. So they'd have to come after you for £2,000, plus they'd probably lock the new buyer out, so he would come after you for £2k too.
So you could be £4,000k down in theory.
Which begs the question, why the hell should I buy anything from such a crummy company in the first place?
This is illegal in the UK. You have a statutory right to sell your own property, and any term in a contract which seeks to diminish your statutory rights is null and void.
I say let yourself get taken to court for breach of contract, then plead "no case" and counter-sue Motorola for vexatious litigation.
It’s about persuading eBay not to allow sale through their tat bazaar. eBay refuse to allow the listing of lots of different, completely legal items. If Motorola can get eBay to pull listings for the Aura, they’ll call it a success. If anyone dares to relist, I’m sure Motorola will view the punishment – the loss of all their eBay and PayPal accounts and being banned indefinitely – as a suitable way of showing their appreciation for buying Motorola in the first place.
If an Aura owner dies (of titness), what happens to the phone? Does the contract require the handset to be placed in the coffin, as a form of grave goods, so that no-one in the world of the living can lay claim to it?
they've simply done a deal with Ebay to keep them off the site which is probably the number one place that they'd be sold.
And in the UK they'll be sold as part of a subsidised contract so does that mean that the phone belongs to you ? Or does it only belong to you when the contract finishes after 18 months ?
Umm I'd like to add to the chorus of people asking what does one get when paying two thousand dollars for a FUCKING CELL PHONE?????????????????????? Not only that but a cell phone that looks like it was designed by a mid nineties industrial design school drop out.
Coat please, cos once again I've seen it all.
...to the first person to accurately predict when Motorola will try and use the DCMA to get a fleabay listing taken down, claiming unauthorised use of a photo of the phone.
Someone made the point already, it'll never come to court in any country and Motorola know it. FleaBay are notorious for taking down first and not asking questions later. They'll get it added to the list of banned items and then it will be a Terms of Use violation to try and sell one and Motorola can safely say "now't to do with us, guv'"
Of course, there are other smaller auction sites, I doubt Motorola will get the same belly-rubbing indulgence from all of them.
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will just remove the listing using the VeRo program.
One of my bike part suppliers has just decided that no one except them can sell their products on ebay. They haven't refused to supply anyone or put anything in writing they just claim you are infringing their copyright and intellectual property if you sell their items.
I have no doubt Motorola will do exactly the same.
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