That's the beauty of EULAs in the US: if there's a clause in there that's unconscionable or illegal, even if you agree, it's not enforceable. We already have a well-established first sale doctrine in the States. I could see - but I wouldn't guarantee - that a court could find it unconscionable that a EULA wrapper that prohibits aftermarket sales is unenforceable given that it wouldn't apply to the same/similar content distributed in another medium.
It would be nice - but I tend to be more cynical when it comes to BIG-CORP against the little guy.
I think the illegal EULA clauses have been struck down because you can't see them until you have opened the box and agreed to them - which is obviously illegal.
As long as Autodesk's new clause that you can't sell on an item was clearly stated in advance then it might be considered as reasonable as you being told by a store that eg. earings are non-returnable for hygiene reasons.
For example the laws in the eu which give you a right to return any item bought online (for any reason) already have exemptions for digital media on the grounds you could copy them and return the originals.
Ironicaly for Autoesk back in the days when they used donges this wouldn't have been a problem - they always claimed that the dongle wasn't replaceable and you should insure it for the cost of the software - creating a precedent that it had value and could be bought and sold.
True. Most contracts will have a severability clause in the end of the contract which will effectively make each part of the contract stand on it's own. I am not sure if contracts without this clause are assumed severable by law like how copyright is granted after a piece of work is created but you have a stronger case if you actually put a copyright symbol on the work.
Technically, that depends on the individual judge's ruling, but either way, the relevant result - the ability to re-sell DLC - remains. Which (in my opinion) is a good thing (if we can get there).
Incorrect the contract is not enforcable; individual clauses are - most of them fall under civil law; I doubt it would be found "unconstitutional". But certainly you could challenge it.
