Re: Installation
On Sun, 23 Sep 2012 21:46:05 -0500
John Hasler <jhasler@newsguy.com> wrote:
> Celejar writes:
> > ...my point is that even if you sell the hard drive, or any other
> > physical object containing the copy of the software that you own, the
> > purchaser will still not have the legal right to actually use that
> > software, insofar as your license doesn't grant you the right to
> > transfer the right to use the software in the manner that you are
> > trying to transfer it. Am I wrong?
>
> Yes. First of all, under USA copyright law a "copy" is a tangible
> thing. Thus your copy _is_ the "physical object containing the copy of
> the software". Second, the creation of copies is the exclusive right[1]
> of the copyright owner but once made copies are ordinary tangible
> property outside the purview of copyright law. Once they have left the
> ownership of the copyright owner they can be bought, sold, traded, given
> away, etc without his permission. They are just things. Third, USA
> copyright law explicitly permits the legal owner of a copy of a piece of
> software to make whatever copies are necessary in order to use it: thus
> you are not infringing the copyright by copying it into RAM, etc.
>
> You do not need the copyright owner's permission to sell or buy a copy
> of a piece of software or to use one that you own. You do need the
> copyright owner's permission to create additional copies[1]. Destroying
> the original after creating a copy doesn't make it ok.
>
> Of course, as a condition of sale of a copy of the software the
> copyright owner can require you to agree to all sorts of wonky
> conditions, but that's a civil matter between you and him. It has
> nothing to do with copyright law and is not binding on anyone you sell
> the copy to. His only recourse is to sue you for breach of contract
> should you violate the conditions.
You do not cite any sources for your various assertions, and I believe
you are incorrect as a matter of US law. Everything I have read
indicates that a software licensee cannot legally transfer the software
to another party unless allowed to do so by the copyright holder:
"If a copyrighted work is purchased, the purchaser has the right to
transfer that copy under what is known as the "First Sale Doctrine."
Specifically, the first sale defense allows the "owner of a particular
copy" to sell or otherwise dispose of that copy. For example, a music
CD or movie DVD can be purchased at Best Buy and then resold at a
garage sale.
But software is different. Software is not sold, it is licensed.
Someone who purchases a software license is not the "owner of a
particular copy," they are an "owner of a license to use a copy" of the
software. Thus, the first sale defense does not apply. Because most
electronic content is also obtained through a license, the first sale
doctrine would likewise not apply to that content because the user does
not own a copy of the work, he only has access to it through the
license. As a result, it is the terms of the software or content
license that will control whether the software or content can be
transferred and not the first sale defense or any other provision in
the copyright law. Accordingly, licensees should consult the license
agreement to determine whether the licensed copy may be re-distributed."
http://www.siia.net/index.php?option=com_content&view=article&id=339&Itemid=352
"In Adobe Systems Inc. v. Hoops Enterprise LLC, the US District Court
for the Northern District of California held that Adobe's distribution
of certain software to original equipment manufacturers (OEMs) was a
license, not a sale of the software. Relying on Vernor v. Autodesk, the
District Court found that the copyright first sale doctrine was
unavailable as a defense to Adobe's claims of copyright infringement
against third parties who subsequently resold the software without
authorization. ...
In Adobe Systems Inc. v. Hoops Enterprise LLC, the key issue before the
court was whether Adobe's distribution of certain software to original
equipment manufacturers (OEMs) was a license or a sale. If the copies
of the software were licensed, then the copyright first sale doctrine
did not protect third parties who subsequently unbundled the software
and resold it without Adobe's authorization from a claim of copyright
infringement."
http://us.practicallaw.com/2-517-9096?q=&qp=&qo=&qe=
"In United States copyright law, the “first sale” doctrine allows the
purchaser of a lawfully-made copy of a copyrighted work to transfer
the copy by a subsequent sale, rental, or other means. The first sale
doctrine originated in a 1908 Supreme Court decision, and it is
codified at 17 U.S.C. 109(d).
In a recent decision from the U.S. District Court for the Northern
District of California, the court ruled that the first sale doctrine
did not apply to copies of software that are pre-installed on a
computer and sold by the original equipment manufacturer with the
computer itself. In Adobe Systems v Hoops Enterprise LLC (N.D. Cal.
Feb. 1, 2012), the court considered the case of a company that bought
computer hardware from Dell and Hewlett-Packard and resold
OEM-installed Adobe software on eBay, separate and apart from the
hardware.
The court indicated that the key question was whether the Adobe
software was sold or licensed to the OEM computer manufacturers. If it
were a sale, then the first sale doctrine could apply. However, if it
were a license, then the first sale doctrine would not apply based on
the precedent of Vernor v. Autodesk, Inc. (9th Cir. 2010).
Adobe did enter into license agreements with the OEMs, but the
defendants argued that those agreements did not create significant
restrictions on transfer, nor did they impose notable use restrictions,
and Adobe did not retain sufficient control over the copies, so the
agreements were effectively sale agreements rather than license
agreements. The court disagreed, noting that there were “significant
distribution restrictions” in the license agreements."
http://ipspotlight.com/2012/02/06/court-rules-that-copyright-first-sale-doctrine-does-not-apply-to-pre-installed-software-that-was-licensed-to-oems/
"A California court recently reaffirmed the principle that a
restrictive software license is not a “sale” for purposes of the
federal copyright laws, and that the license could not be used to
assert a defense to copyright infringement based on the first sale
doctrine. Adobe Systems Inc. v. Hoops Enterprise LLC, No.
4:10-cv-02769-CW (N.D. Cal., Feb. 1, 2012).
http://swipreport.com/case-note-copyright-first-sale-doctrine/
Celejar
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