By my understanding EULAs are based on contract law and having a clickwrap agreement that requires you agree to it before using the software, not copyright law. Except perhaps to the extent that copyright law would prevent you from creating a derivative work that doesn't require you to agree to that clickwrap agreement prior to using the software.
I think the usual argument is that you don't own the digital good, you have a license to use it, and that license is between you and the originator (or their reseller) directly. And you aren't allowed to resell the license.
> No, not if the same itself was unlawful because Alice signed a contract to not sell it like that.
It's the contract that's the violation, isn't it? What would the first sale doctrine be if in order to get a copy you could be required to sign a contract not to exercise your rights under it? For that matter, how could state-level contract law override the federal first sale doctrine?
The "derivative work" hack also seems kind of fragile. The normal way to get someone to agree to something is that they need a right from the license, which they then don't get if they don't agree to it. But if it doesn't give them anything that they need then "there are ways to use the copy they own and have a right to use without agreeing to any additional terms" is more like the default you're trying to hack your way out of than something they're exploiting a loophole to get into, and where does that leave you if anything slips?
Suppose Alice is a three year old. She owns the copy, she presses the button and now she has a running copy even though she's not competent to enter into a contract, and then Bob buys it from her. Or Alice owns the copy and Carol presses the button, and then maybe Carol could be sued, but also maybe Carol lives in another country, and either way Alice now owns a running copy she never agreed not to sell. And then you want to be able to say "but that's cheating" except that it's not any less cheating than what you were doing to try to get them to agree to it.
Sure, maybe anyways but let's assume it is, the parties to that contract are the manufacturer and the copyright holder. The contract allows the manufacturer to distribute it to the distributor without requiring the distributor to agree to the terms and itself become a party. The distributor can then sell the device with the software on it on without acquiring a license and becoming a party to the contract because the copyright has been exhausted (first sale doctrine).
EULA's get around this by forcing the end user to become a party to the contract via a click wrap agreement. There is usually no such click wrap agreement binding the distributor in the case of the GPL. And the GPL doesn't require the creation or maintenance of such a click wrap agreement so the manufacturer would be free to remove it even if the original software had one.
Like when I buy a second hand book and then I start printing copies of the book and selling them without any agreement with the original author or publisher?
Like when you buy or sell a second hand book without getting permission from the copyright holder to distribute their copyrighted material, which would otherwise be necessary.
