by Mike Masnick

Filed Under:
copyright, first sale, license, software, vernor


Supreme Court Won't Hear Case Saying That You Have No First Sale Rights With Software

from the too-bad dept

We had just mentioned the infamous decision in the Vernor v. Autodesk case last week, in discussing the Psystar decision. If you don't recall, the court in the Vernor case effectively decimated the concept of "first sale" in software, making it questionable if you could ever resell software that you'd bought. To make that work, the court argued that software sales (even though it's "bought" in stores) are really "licenses," similar to rentals, rather than product sales and, thus, you can't resell. Of course, as someone noted in our comments, then why does Apple have a "How to Buy" page for its software, in which it is entirely described as a product you are purchasing.

In the Vernor case, the court gave a recipe for effectively destroying first sale. All anyone has to do is claim that they're licensing you something, even if it has every indication of being a full purchase. This seemed to contradict with the entire First Sale doctrine (and numerous other cases), but apparently the Supreme Court doesn't want to be bothered with this. It refused to hear Vernor's appeal, meaning the existing ruling sticks. This is one case where I could definitely see another appeals court coming to a different conclusion, meaning that, hopefully, the Supreme Court will revisit this issue at some point in the future. In the meantime, the first sale doctrine is severely limited to the point of near non-existence in software.

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  1. identicon
    Dmytry, 5 Oct 2011 @ 4:29am

    I'm yet to see a mentally competent person who believes that by paying $20 or $200 or even $20000 they are actually buying 'the software' in question (a game, Photoshop, or graphics suite in question), aka product that did cost many million dollars to develop (and cost of development of which the company in question - Autodesk - is trying to recover by licensing).

    Of course it is a purchase of license and even the dumbest customers do understand that they are each paying a microscopic fraction of the multimillion dollar price of actual product that a software company makes.

    But of course customers being what they are... wouldn't it be fun if you could buy a plane ticket then get ownership on the entire plane via clever lawsuit? That'd be fucking awesome, you'd have a personal jet!
    Customers want to be paying for the no-resale-rights license, which is cheaper than a license with resale rights would have been - and they want to screw over the licensor and resell it afterwards. And whine in court, then whine when the court makes the most obvious ruling and higher court ignores the stupid whining.

    There's where it gets really stupid though - you guys think you'll be actually getting more value if you have a right to resell the software set by court. The software won't be cheaper to make and the development costs will still have to be recovered.
    No you won't. You won't be able to obtain software cheaper by waiving the ability to resell, that's all!

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