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 ...
Tech list ping.
On the upside, this IS from the most reversed circuit in the nation.
What happens when car companies decided to start selling "licenses" to drive a car? If the courts think that's farfetched, what makes software mfgrs so much more special than car makers?
Meanwhile, Adobe ENCOURAGES used sales to spread it’s software, and encourages you to buy the upgrades.
Two different companies, two different ideas
A few years ago Microsoft beat a lawsuit over errors in Xcel on the basis that the software was sold, where is, as is, with no implied warranties. It was in one of the states that has really strict product liabilities laws (Ohio maybe).
Some construction company had messed up a bid because of the Xcel flaw. If the software companies are shown to have surviving “rights” in the software even after it is sold, they could also be shown to have surviving “liabilities” in the software after it is sold as well.
Given the amount of bugs in most of the software released today, this could be a double edged sword.
The arrogance of some sw companies is amazing.
Without making comments on the merits of this case, I'd point out you're comparing apples to oranges.
The copyright isn't for the physical CD/DVDs themselves. The copyright is for the intellectual property that is contained on the CD/DVDs. That intellectual property, and the functionality that it represents, is what is copyrighted.
When you buy a car, you are buying - and titling - the car itself. The physical property (not intellectual property) that is the car, is what is legally titled in the owner's name. The software license allows the licensee access to the intellectual property.
Software doesn’t have wear and tear. There will never be a need to replace it.
This could be a problem for used book stores as well then.
Which is why we're all using Windows 3.1 these days.
OK, then how is software different from books, or movies, or music.
Interesting indeed. Makes one wonder how this could be applied to the resale of for example books. It’s not so much the value of the paper, but the ideas printed on it that gives it value. Also, how will software companies square this with their revenues for “sales”? Did they just sell a plastic disk? Did they lease it? Did they sell the disk but lease the intellectual property? A big ol can of worms.
I agree with you, but modern vehicles have incorporated into their design, several computers. Presumably each runs some type of program. What do you suppose would prevent future assertion of intellectual property claims on the part of the manufacturer?
That's funny!
Exactly. They and the entertainment industry have both argued both license and sale, so they’ve lost their right to choose. I say whichever is the more consumer friendly prevails in any given case, similar to the way ambiguities in a contract are construed against the party that wrote the contract. If they can’t even tell themselves, they don’t get to hold us to whichever is more convenient for them on a case-by-case basis.
A decision that will no doubt help lawyers make their house, car, and kid’s college tuition payments for years to come.
You ever leased a car? That’s basically a license, you can’t resell it, you still gotta do most of the maintenance.
I don't believe anyone has every tried it with books, but a know the music business made a run at used CD’s and got nowhere.
The funny part is this. I hope it does stand. I'd rather have the software companies keep “ownership” in their product - and then have to answer for it being full of bugs and mistakes!
I have a feeling that the lost revenue from resales is nothing compared to the cost of having to produce a product that actually does what they claim it will do.
Almost all computers and modern electronic devices depend on embedded software (like Windows) which is licensed. If this ruling stands any license holder of this embedded software could stop or put conditions on the resale of this equipment.
And because modern automobiles contain computers and embedded software, that would include used car sales.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.