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Court Says First Sale Doctrine Doesn't Apply To Licensed Software

Posted by Soulskill on from the make-up-your-mind dept.

An anonymous reader wrote to tell us a federal appeals court ruled today that the first sale doctrine is "unavailable to those who are only licensed to use their copies of copyrighted works." This reverses a 2008 decision from the Autodesk case, in which a man was selling used copies of AutoCAD that were not currently installed on any computers. Autodesk objected to the sales because their license agreement did not permit the transfer of ownership. Today's ruling (PDF) upholds Autodesk's claims: "We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions. Applying our holding to Autodesk’s [software license agreement], we conclude that CTA was a licensee rather than an owner of copies of Release 14 and thus was not entitled to invoke the first sale doctrine or the essential step defense. "

12 of 758 comments (clear)

  1. Bad consequences by Anonymous Coward · · Score: 5, Insightful

    This is going to mean bad things for all the rest of us.

    1. Re:Bad consequences by ChrisKnight · · Score: 5, Insightful

      Just wait until publishers of physical books and magazines add a 'license agreement' to the first page.

      This ruling has the potential to strip the right of first sale from all future books, magazines, CDs, DVDs, etc.

      --
      -- This sig is only a test. If this were a real sig it would say something witty. --
    2. Re:Bad consequences by Zencyde · · Score: 5, Insightful

      While I do hate this strategy, showing the obvious fallacies of a system by pushing it to its limits is one of the more effective ways. Reductum ad absurdum is not simply a logical argument but an overall strategy that can be applied to demonstrate scalable effectiveness of a system. I know we shouldn't expect a system to scale perfect but in this case the system seems to not scale very well at all.

      Also, I'd like for it to now be legally disallowed to use the term "buy software" in a commercial context as it no longer applies and would falsely advertise what it is that we "purchase".

      --
      What day is it? Could you please tell me?
    3. Re:Bad consequences by Runaway1956 · · Score: 5, Insightful

      The problem is - what was truly absurd 50 years ago was made legal 40 years ago - and what was absurd 40 years ago was made legal 30 years ago. They keep pushing the envelope, and the kids coming up are brainwashed into accepting the newest absurdity. The "rights holders" outlive the voters and the customers, so today's customers have little idea where things started out, and little idea of what is absurd!

      --
      "Windows is like the faint smell of piss in a subway: it's there, and there's nothing you can do about it." - Charlie Br
    4. Re:Bad consequences by Belial6 · · Score: 5, Insightful

      Also, I'd like for it to now be legally disallowed to use the term "buy software" in a commercial context as it no longer applies and would falsely advertise what it is that we "purchase".

      Seriously. If a person watches a commercial that says a product is for "sale". They go into the store and see a "sale" sign for the product. They then take the product to the cash register and offer to "buy" the product. The cashier runs the transaction, takes their money, and hands them a "sales receipt". How is this not a SALE of the product?

  2. Yay! by Pojut · · Score: 5, Insightful

    Wait...what? Seriously?

    Many industries have been trying for literally decades to prevent used or second-hand sales...but parts of the software industry are the ones to actually do it? Huzzah. That's so awesome. Thanks for fucking us over once again. Guess what people will do when they can't buy a used copy and don't have money for a new copy?

    Yaargh.

    --
    Living With a Nerd
    1. Re:Yay! by Culture20 · · Score: 5, Insightful

      Many industries have been trying for literally decades to prevent used or second-hand sales..

      Expect an End User License Agreement with your next car or house. Car manufacturers and home builders would love that.

    2. Re:Yay! by russotto · · Score: 5, Insightful

      What you buy is a license, and the contract you sign is the EULA you click through when you install the software.

      Piss on that, and piss on the Ninth Circuit (in whose jurisdiction I do not reside). What I buy is a copy of a piece of software. The thing in the box is merely an impermissible attempt to restrict my rights post sale.

      And the First Sale Doctrine is just that, a doctrine - not a federally protected right.

      It's in the copyright code, 17 USC 109.

  3. Oh, crap by ak_hepcat · · Score: 5, Insightful

    This is a ruling that is going to spur a lot of changes to software vendors.

    *everybody* will end up being "a licensee" of the software, and you will no longer own anything.

    And yes, this will extend to FOSS as well... licensing through copyright is still licensing....

    Do these judges even understand the enormity of their decisions?

    --
    Support FSF: Stop thinking with your wallet, and think with your imagination. (cc/non-commercial)
  4. So let me get this straight... by Anonymous Coward · · Score: 5, Insightful

    You buy something (and you *are* buying it, because the "agreement" isn't presented before the sale.)

    You try to install it, and disagree with the EULA, so press "I disagree", and the software doesn't get installed.

    You then sell it to try to recoup some of your lost money.

    But you can't, because the *agreement*, which you did not agree to says you can't.

    The USA is officially the most fucked country on earth.

  5. Re:EULA-mania by AnonymousClown · · Score: 5, Insightful
    On eBay tomorrow you will find:

    Used "Iron Man" DVD case for sale: $6.00 - DVD thrown in for free!

    --
    RIP America

    July 4, 1776 - September 11, 2001

  6. But you can't get a refund by Sycraft-fu · · Score: 5, Insightful

    Try taking software back to a store. Say you didn't like the license and want a refund. They'll tell you "No refunds on opened software, exchanges only." Of course you can fight that but it takes time and money.