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.

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

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  1. icon
    WysiWyg (profile), 5 Oct 2011 @ 8:03am

    Re: Re: Games

    1. Because it's not the marketers that agreed to the license, it's the original customer. I have a feeling that it would be hard to lay the blame on the resellers.

    But mostly it's because they (EA and so on) still thinks that the "brick and mortar" stores are the most important ones, and don't want to screw with them to much.

    (Obviously I'm just guessing)

    2. I believe it was Redbox.

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