Posted on 09/13/2010 1:35:31 PM PDT by Still Thinking
The 9th Circuit of Appeals has reaffirmed the right of software companies to circumvent the first-sale doctrine by “licensing” rather then “selling” its products. The significance of this ruling cannot be overstated—it could singlehandedly destroy the used software market.
In 2005, one Timothy Vernor bought a sealed copy of AutoCAD Release 14 at a garage sale. In 2007, Vernor purchased four used copies of Release 14 from an authorized dealer, Cardwell/Thomas & Associates (CTA). He subsequently placed all but two copies on eBay, and in each instance, Autodesk appealed to the Digital Millennium Copyright Act (DMCA), alleging copyright infringement. In 2009, the courts ruled in Vernor’s favor, reaffirming his rights under the first-sale doctrine. But the 9th Circuit of Appeals recently overturned that decision—according to the ruling, the software license overrides the first-sale doctrine.
(Excerpt) Read more at ecnmag.com ...
Doesn’t a user have to install the software and agree to the license in order for said license to be deemed “used”? If the software package was not opened, the software not installed, and the license not agreed to, the license was therefore not used and I see no problem in reselling the package. In that instance, I wouldn’t call the software “used”.
The first sale doctrine, which provides that the copyright owner’s exclusive distribution right ends upon the first sale of the product, is written into the copyright act. The text of the statute provides that it applies to books and phonorecords. That’s the difference.
No reason they couldn't put the same sort of seal onto CDs and DVDs of other entertainments.
There are already plenty of DVDs with DVD-ROM content alongside the video content. Ergo it is "software".
Digital downloads carry no provision for resale (although some have tried to get the lawsuits to do so established).
The computer controls on a motor vehicle are really no different ~ yet you not only can sell your car without being attacked for violating the implied "license" to use the software on the chip(s) it would probably be impossible to get an upgrade anyway.
It's a little complicated, and this isn't my area of law so my answer probably won't be as precise as it should be, but they really aren't significantly different.
When you buy a movie, a book or music DVD, you are agreeing to an implicit license - that license it allows you to enjoy your Book/CD/DVD so long as you enjoy it yourself, or in the privacy of your own home. The implicit license does not allow you to play that CD/DVD in a commercial setting - like at a bar or club (unless you've paid ASCAP or BMI fees). That is the limitation of the license. Nor, are you allowed to copy that CD/DVD or book - again, another limitation of the implicit license.
The software license is an expressly articulated license. The buyer, upon purchase and installation of the software, agrees (enters into contract) to behave in a certain way. If the buyer does not wish to behave in a certain way, he does not have to buy and install the software.
Since I haven't familiarized myself with the relevant case law, I may be wrong here, but I don't believe its disallowed to resell unopened software. IOW, I could buy MS Office from Best Buy, and then sell it to you so long as the box is unopened. So, in the strictest sense, just like with movies/cds, I can resell software. I just can't resell it after installation.
The ninth circus was created so the SCOTUS would have a dummy to beat up on.
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That's not all. The same arguments could be used to prevent the sale of used DVDs, CDs and even books.
The next time you buy a book, better make sure it doesn't have a EULA hidden in the packaging.
Actually that tried that in their lease program's years ago, trying to make users purchase their oil brands and etc, are it violated the lease. It lasted about five minutes before a judge.
Sorry, but your "failure" of my analogy, fails itself.
When you purchased you car, does the manufacturer make you agree before starting the car that you won't resell it? No, they don't. But, that is precisely what some software licenses make you do - and those are the software licenses that we're talking about.
Some software is unlicensed, or allows resale in its implicit license - like the software in my car analogy. Some other software is not. It's the "is not" that is in question here.
Very interesting point.
Then how come software patents are allowed instead of just copyright protection? They want it both ways.
Yes but they’ve been burnt a time or two so they have resigned themselves to playing the pay-for-votes game which leads, ultimately, to having the ‘right’ kind of judges in place for rulings such as this one.
Because there is nothing inventive about music, per se. However, there is a great deal inventive about software. Copyrights protect artistic works, and limit reproduction. Software enjoys a copyright and a patent because not only does software enjoy "copy" protections, it also enjoys the inventive protection of the patent.
ASCAP and BMI only handle the MUSIC publishing rights. You'll need to be up on your ASCAP and BMI fees in a bar even if you just put the television on (argument is that a song they "own" could be played on a video, tv commercial, or on tv show or movie). The movie owner is still not authorizing you to play the movies in a bar.
Note that CDs don't have a disclaimer "for private use only unless you are up on BMI/ASCAP fees....
You can't copy a car.
If I buy software (that is, a license to use said software, if it is sold that way), I could copy the bits onto my hard drive or removable media, then try to sell the original media.
Once sold, I could keep using the software, using the copy I made. And now the person to whom I sold the original can use it (or repeat what I did).
You can't do that with a car - if you sell it to someone, it's gone from your possession - the buyer has it, and you can't drive it any more (at least not at the same time the new owner is driving it).
/johnny
> “Software doesn’t have wear and tear. There will never be a need to replace it.”
> “Which is why we’re all using Windows 3.1 these days.”
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A poor analogy to the AutoCAD software question.
Some of the older versions (Ver 12 in particular) are considerably better drafting engines than the current versions. The recent versions are, to put it rudely, a pain in the ass to work with for most users, which has caused demand for the easier to use older versions to climb.
If your comparison to Windows were valid, the stuff wouldn’t sell at all.
Don't kid yourself, never going to happen that way. They own the software, you own the bugs.
“Software” can be a CD-ROM of clipart (nothing new created except for a compilation of fair use images stored as JPGs, BMPs, and TIFs).
Software can also be something like a pdf of a movie script on a DVD or a simple flash animation/game.
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