FS Fitch/Kohler holdout

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Postby Ruben Padilla » 08/10/09 09:57 PM

Extremely exclusive, Excellent condition, with all the original attachments (but not the optional coin attachment) and DVD's in original case. Was priced to move at only $1500. Now offered at $1400. Free shipping in U.S. Paypal accepted.

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Postby Richard Hatch » 08/11/09 12:43 AM

Wasn't this item subject to a lease of some kind, and not something one could purchase? Is the "lease" transferable? I never had a clear idea of how that was supposed to work (obviously!).
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Postby Seuss » 08/11/09 01:00 AM

Yes, you can sell (assign) your license to another magician (but magicians only) pursuant to certain conditions and with our approval. You can charge whatever the market will bear, but you MUST get the new magician licensee to sign an assignment and release agreement (available from us) and send us a notarized copy before releasing The Fitch Kohler Professional Holdout System to him/her. Its important for you to know that the original licensee (you) is still bound by the confidentiality agreement.

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Postby Richard Kaufman » 08/11/09 09:47 AM

The manufacturer can try to impose any restrictions he or she likes, that doesn't mean they are recognized by law or that the owner or buyer are legally bound by them.
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Postby NCMarsh » 08/11/09 12:16 PM

The manufacturer can try to impose any restrictions he or she likes, that doesn't mean they are recognized by law or that the owner or buyer are legally bound by them.


When the buyer agrees in writing to the restrictions, does that make them more enforceable?

(nothing to do with this particular sale, incidentally)
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Postby Richard Kaufman » 08/11/09 01:38 PM

No. Agreeing to restrictions that the law does not recognize does not render them enforceable.
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Postby KenAbbott » 08/11/09 02:49 PM

You can lease cars. You can lease real estate. You can lease collegs books, furniture, tractors, artwork, and a ton of other goods. What is it about a holdout system that makes a contractual agreement less enforceable than any other goods?
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Postby Richard Kaufman » 08/11/09 02:52 PM

Leases run for a defined term (i.e., amount of time). You are not leasing this item--it has been purchased. As the purchaser, you have the right to sell it.

I'm waiting to hear of any cases of successful prosecution of someone who sold this item to another individual and not reported it.
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Postby Roger M. » 08/11/09 03:25 PM

If this were originally marketed with a true lease agreement, nobody would have ordered any of them in the first place.

It's an outright sale that's been dressed up to look like a lease for the purpose of......well, I guess obfuscation of the fact that as the purchaser, you're the new owner and can do with the hold-out as you see fit to do with it.

Bob K.: "hey, where did you get that"?
Hold-out guy: "I inherited it from my brother"
Bob K.: "give it back to me, he only leased from me"
Hold-out guy: "I've got his canceled cheque, get outta' my face".
Bob K.: "OK".
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Postby Nathan Muir » 08/11/09 06:01 PM

KenAbbott wrote:You can lease cars. You can lease real estate. You can lease collegs books, furniture, tractors, artwork, and a ton of other goods. What is it about a holdout system that makes a contractual agreement less enforceable than any other goods?


None of those other leases bind you to a restriction of your personal freedoms as a US citizen.
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Postby Mike Carr » 08/11/09 06:43 PM

R.K & R.M. are correct.
Indeterminate life, lack of regular or ridiculously low payments, no perfection of seller interest.

All of the above make it a sale, not a lease.

If seller attempts to enforce transfer limitation based upon copyrighted instructions for devise, unenforceable under
first-sale doctrine & provisions of the Clayton Act.

Contracts may contain provisions that are:
Illusory
Unconscionable
Against public law/policy
Arbitrary
Capricious
Without regard to buyer ability to competently contract
And more

Entering into a contract, even one memorialized by a writing and signed under seal, do not make these provisions enforceable under the U.C.C. and/or any laws of the several states.
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Postby Donal Chayce » 08/11/09 07:45 PM

Mike Carr wrote:Entering into a contract, even one memorialized by a writing and signed under seal, do not make these provisions enforceable under the U.C.C. and/or any laws of the several states.



And by including unlawful or unenforceable clauses in a contract, you run the risk of having the entire contract--and not just the clause(s) in question--voided by the court.

That's why those of us who work in and around contract law always include a provision that states that if any clause is deemed unenforceable, that clause is effectively deleted from the agreement while the rest of the agreement remains in full force and effect.
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Postby erdnasephile » 08/11/09 08:53 PM

This reminds me a little bit of Mr. Cervon's printed restrictions on the use of material in Ultra Cervon. In that case they were perhaps understandable requests, but they are generally non-unenforceable under US law. (I really liked Mr. Weber's rebuttal in Life Savers).
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Postby NCMarsh » 08/11/09 09:29 PM

That all sounds good. Forgive a curious non-lawyer and born contrarian:

Is there a determinate life for software agreements? Regular payments? Are there not burdensome limitations imposed by a software agreement (i.e. I can only use the software I've paid for on a limited (and low!) number of my own computers)? Doesn't this limit on my use of the product seem more onerous than having the guy I sell my holdout to sign a piece of paper?

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Postby RobertAllen » 08/11/09 11:01 PM

Speaking of Life Savers, is the 'agreement' stated in the front of that book at all enforceable? It was a joke? I'm assuming it's not enforceable since among other things no contract was presented to and agreed to before purchase of the book, but it's always left a bad taste in my mouth when I read that in the book.
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Postby Mike Carr » 08/11/09 11:05 PM

Donal Chayce wrote:
Mike Carr wrote:Entering into a contract, even one memorialized by a writing and signed under seal, do not make these provisions enforceable under the U.C.C. and/or any laws of the several states.



And by including unlawful or unenforceable clauses in a contract, you run the risk of having the entire contract--and not just the clause(s) in question--voided by the court.

That's why those of us who work in and around contract law always include a provision that states that if any clause is deemed unenforceable, that clause is effectively deleted from the agreement while the rest of the agreement remains in full force and effect.


Correct, sir.
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Postby Mike Carr » 08/11/09 11:39 PM

NCMarsh wrote:That all sounds good. Forgive a curious non-lawyer and born contrarian:

Is there a determinate life for software agreements? Regular payments? Are there not burdensome limitations imposed by a software agreement (i.e. I can only use the software I've paid for on a limited (and low!) number of my own computers)? Doesn't this limit on my use of the product seem more onerous than having the guy I sell my holdout to sign a piece of paper?

N.


Some yes, some no. There are a great many examples of software that must be renewed annually, etc. Example, inter alios, Norton, McAfee, tax preparation software limited to a single fed & state return completed and filed, Westlaw software requiring subscription...

No regular payments on a purchase unless purchased on an installment or deferred payment basis.

No, you receive the usage level that you purchased.

No. The enforceable limitations are on legally copyrighted, trademarked, possibly process patented technological material and/or distribution of same.
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Postby Mike Carr » 08/11/09 11:51 PM

RobertAllen wrote:Speaking of Life Savers, is the 'agreement' stated in the front of that book at all enforceable? It was a joke? I'm assuming it's not enforceable since among other things no contract was presented to and agreed to before purchase of the book, but it's always left a bad taste in my mouth when I read that in the book.


If it was a joke, I doubt that he laughed at the eventual outcome.

It was also an unenforceable provision attempting to deter expanded exposure of the "secret" to non-purchasers done under the color of law.

It may have stopped some book owners but it did provided him with absolutely no protection from the manufacturers, wholesalers and retailers who promptly copied his methods and placed them into the discount market en masse.
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Postby erdnasephile » 08/12/09 12:46 AM

I strongly suspect that the "agreement" printed in LifeSavers was indeed meant to be a wry and humorous response by Mr. Weber (an attorney himself) to Mr. Cervon's unenforceable restrictions printed in Ultra Cervon. From reading the text, it's clear that Mr. Weber wasn't trying to restrict anything.
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Postby Tom Stone » 08/12/09 06:10 AM

erdnasephile wrote:From reading the text, it's clear that Mr. Weber wasn't trying to restrict anything.

I think you are mistaken. To me, it looks like all commercial rights to the material is reserved, but allows non-commercial use, like in impromptu and informal situations.
Which seems perfectly reasonable in my eyes.

Perhaps difficult to enforce in the US, I don't know. But had it been over here, it would certainly be enforcable.

Not all magic books are published as instructional texts. Some of them are published as documentation over an artist's body of work. Something to draw inspiration and insight from, but doesn't give an automatic right to reproduce the work without permission.
Like, you can buy a theatre script to study it, but that doesn't automatically provide the right to produce the play.
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Postby Steve Bryant » 08/12/09 08:01 AM

Re: but it's always left a bad taste in my mouth when I read that in the book.

I agree. I literally don't allow LifeSavers in the same room as my other books. But I hadn't considered the "agreement" to be humor. Perhaps I should give it more thought.
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Postby Darryl Harris » 08/12/09 08:27 AM

Mr. Weber's tongue is firmly in his cheek.
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Postby Ray Eden » 08/12/09 08:57 AM

I suppose this is off topic... but what about the caveats put on items that contain restrictions for performing the piece on television? Are these restrictions "real" or as frivolous as the "lease" discussed above? If the item is purchased and owned by the purchaser than how can television performances be prohibited. I'm not a lawyer, so I'm guessing there must be some grounds for this. For example, a certain performer obtaining performance rights. But do these "performance rights" extend outside of the U.S. or the country in which they were obtained?
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Postby Tom Stone » 08/12/09 09:50 AM

Ray Eden wrote:If the item is purchased and owned by the purchaser than how can television performances be prohibited.

You can't own another person's piece of art, when it comes to reproduction.
Copyright is non-transferable according to the Berne convention - therefore, your rights to reproduce the work has to follow the guidelines dictated by the creator of the piece.

Though, the situation in the US might be different.
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Postby erdnasephile » 08/12/09 10:56 AM

Tom Stone wrote:
erdnasephile wrote:From reading the text, it's clear that Mr. Weber wasn't trying to restrict anything.

I think you are mistaken. To me, it looks like all commercial rights to the material is reserved, but allows non-commercial use, like in impromptu and informal situations.
Which seems perfectly reasonable in my eyes.


Mr. Stone: I just reread the Weber text. You are correct in terms of Weber reserving the manufacturing, distribution, film, TV, etc. rights listed above the copyright notice. Thanks for pointing out my misstatement.

The part I meant to refer to was the "full permission" paragraph underneath the copyright notice, which really does appear to be using hyperbole in jest. For example, the text grants improvisational performance rights to you "...anywhere on the planet and in the universe, twenty-four hours a day...", etc.

To me, the legal aspects are secondary because IMHO it's best to honor the author's wishes when restrictions are listed.

(Personally, I have made it a habit that if I wish to use a performer's published routine in a formal setting, I contact them (if at all possible) and request permission to use the routine. That may not be strictly necessary in a legal sense, but I wish to show the creators the courtesy and respect they deserve.)
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Postby Tom Stone » 08/12/09 11:19 AM

erdnasephile wrote:Mr. Stone: I just reread the Weber text. You are correct in terms of Weber reserving the manufacturing, distribution, film, TV, etc. rights listed above the copyright notice. Thanks for pointing out my misstatement.

The part I meant to refer to was the "full permission" paragraph underneath the copyright notice, which really does appear to be using hyperbole in jest. For example, the text grants improvisational performance rights to you "...anywhere on the planet and in the universe, twenty-four hours a day...", etc.


Ah, I guess Richard Kaufman insisted that it needed to made clear that for 90-95% of the readers (hobbyists and amateurs), the restrictions would not be limiting at all.

You had mentioned that such things are enforceable in Europe--would such a restriction mean that the material could not be used in a formal, but not televised, show without Mr. Weber's permission?


Well... it is a matter of policing as well, and Weber can't be everywhere...
But yes, if I used Lifesavers material in a formal show, then Weber could sue, and he would win. Unless he is stopped by the US take on the Berne convention.
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Postby Richard Kaufman » 08/12/09 04:01 PM

I really can't remember the circumstances behind the text on the reservation of certain performance rights in Life Savers except that I was surprised Michael wanted it to be included. My vague recollection was that he didn't want anyone doing the material from Life Savers on TV. My thinking at the time was that since 99.9 percent of the purchasers would never have the opportunity to go on TV and do magic, it was a non-issue.

I think he was serious about it, but confirmation of that would have to come from him. I'll see him next week and perhaps he'll mention something to me about it.
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Postby Ruben Padilla » 08/13/09 01:43 AM

Back to topic, this has now been lowered to $1250.

A steal! (pun intended).
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Postby Dave Mithaca » 08/13/09 04:04 PM

Holy Cow! What a price for such a fabulous system. The FKHO is made in small batches from what I've heard, so jumping on this would be a great investment for somebody.

One of the most informative things I've read about the FKHO was posted by Mr. Kohler himself:

http://www.themagiccafe.com/forums/sear ... ost=231286

I'm quite pleased that some magicians treat trade secrets with respect and attempt to use the legal system for assistance. I often wonder why this isn't met with more enthusiasm amongst other magicians; instead it seems there's too much energy devoted towards criticizing these attempts.

I own the FKHO system including the Fitch Coin Attachment, and I'm happy that steps have been taken to try to protect the investment of holdout users.

I've never met Mr. Kohler, but I've had nothing but wonderful dealings with him in purchasing various products over the years. I recall him stating on more than one occassion that individuals have used the FKHO device on television and that there are no restrictions on this activity. The lease is simply designed to open up the possibility to go after people who reveal the secrets on the various exposure programs. Furthermore, transfering the lease is not a difficult process. I applaud his efforts and hope that others try doing similar things.

Respectfully,

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Postby Ruben Padilla » 08/13/09 08:27 PM

Withdrawn from sale. Thanks, everybody.
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Postby Mike Carr » 08/13/09 09:42 PM

I'm quite pleased that some magicians treat trade secrets with respect and attempt to use the legal system for assistance. I often wonder why this isn't met with more enthusiasm amongst other magicians; instead it seems there's too much energy devoted towards criticizing these attempts


I am in perfect agreement woth you. I believe that we should all pressure congress to create and fund a new [color:#FF0000][size:11pt]FHB [/size][/color]
(Federal Holdout Bureau] to police and enforce these agreements. :D
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Postby Jonathan Townsend » 08/14/09 11:08 AM

Some of us simply choose to respect the wishes of those who want their work kept private.
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Postby Mike Carr » 08/14/09 11:11 AM

Jonathan Townsend wrote:Some of us simply choose to respect the wishes of those who want their work kept private.


And, apparently, others do not.
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Postby Roger M. » 08/14/09 11:15 AM

Dave Mithaca wrote: The lease is simply designed to open up the possibility to go after people who reveal the secrets on the various exposure programs.

It sounds very noble, but.....the F/K is no more than a nicely made Miller hold-out with a lock.

There is no mystery as to what it looks like, how it works, or what can be done with it.

You couldn't "go after" anybody for posting pictures of, or talking publicly about this holdout.
The basic design for this unit has looooong been available to anybody with a spare $6.95, available in a nice little soft cover book from any magic book shop.

Manufacturing the Miller with extremely nice materials and adding a lock doesn't make it a "new" device deserving of any sort of special protection.
This doesn't in any way take away from the skills and engineering abilities of the manufacturer.
This is without a doubt the nicest Miller hold-out ever made, a piece of usable art..............but the business of the lease is a healthy helping of hubris.
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Postby Kent Gunn » 08/14/09 03:29 PM

Roger,

I've always thought people who use the word hubris were exhibiting a bit of it themselves. Obviously I'm including myself in this group.

Kohler hired a lawyer to concoct the lease. To relegate the desires and whims of another to pride is presumptuous at best.

The thing isn't a work of usable art. It is a functional tool, nothing more, nothing less.

The lock feature is a small part of the additions and possibilities Mssrs Fitch and Kohler made available to the more affluent members of the magic community. The best part of the package was the five DVDs chock-full of ideas and routines.

I'd played with a home-grown gravity hold-out for years. After I coughed up the requisite dough what little magic I can do well was changed forever.

I always presumed that Mr. Kohler may well have partially reasoned the hold-out lease would generate a buzz/discussion, just like this one to add to his sales. I wouldn't attribute Mr. Kohler's motivation to hubris. I'm betting on a canny business sense instead.

Oh, one more thing. Why is Bob the one villified? Thomas Wayne and Bob Fitch were certainly huge partners in this venture. Go ahead, say something mean about T. Wayne, I dare you! Nobody picks on Fitch because he's a national treasure.

Ok, rants over.

Kohler doesn't even sell the darned things anymore. I've used mine for about five years. It still works like a dream. It is the best money I've ever spent for a gimmick. I'd buy another one for a back-up, if I could get my hands on it.

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Postby Roger M. » 08/15/09 12:13 AM

Kent Gunn wrote:
I've always thought people who use the word hubris were exhibiting a bit of it themselves. Obviously I'm including myself in this group.


Kent, hubris is part of the human condition, so you're 100% correct in your statement whether hubris is used to mean hubris, or just to mean hubris.

I certainly wouldn't claim to be exempt from the group of users of the word hubris, who by the very use of the word "hubris" display a mighty hubris.
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Postby Nathan Muir » 08/15/09 02:20 AM

Pretentious? Moi?
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Postby Q. Kumber » 08/15/09 08:06 AM

Nathan Muir wrote:Pretentious? Moi?


Ah! A Fawlty Towers fan!
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Postby Kent Gunn » 08/15/09 02:46 PM

And if you bother me again I shall visit you in the small hours of the night and put a bat up your nightdress.

BF
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Postby Jonathan Townsend » 08/16/09 12:37 AM

Was tempted - sorely tempted. Still tempted.
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