646 666 9601 [email protected]

If you’re thinking about sharing or selling software you’ve purchased, reconsider. When you purchase a book or a CD, the “first sale doctrine” permits you to sell, trade, or give it away. Not so with the majority of software. Continue reading to learn what you can and cannot accomplish with software.

 Sharing Software

Whether you’ve ever bought a software package, you may have wondered if you might sell the CDs or make a duplicate for a customer or a friend. Unfortunately, distributing software is often prohibited, and producers have the legal power not only to prohibit transfer, but also to impose additional restrictions of use for the programme. So, why are software programmes restricted in this way?

Copyright law in the United States protects software programmes…

unfortunately it isn’t all

Software programmes are creative, copyrighted works—the law classifies them as “literary works” for copyright reasons. As such, they are protected intellectual property under the Copyright Act, which allows writers exclusive rights to reproduce and distribute copyrighted works.

Consumers, on the other hand, have enjoyed the advantages of the “first sale doctrine” for over a century, which provides the purchaser of a copyrighted work the ability to transfer (buy, sell, trade) that product to someone else without infringing on the author’s copyright. In other words, if you purchased it, you own it—the actual copy, that is—and if you possess it, you may sell it.

Software is not sold; rather, it is licenced for usage.

So you spent $399 for a software bundle and now you’re done with it. You’ve deleted the applications from your computer and want to recuperate part of your money by selling the CDs. Don’t even consider it. What’s the harm? Why are software programmes immune from the “first sale doctrine” protections? Because when a customer purchases software, there is no sale of the work; rather, the consumer has acquired merely a licence to use the programme. Licenses may be restricted in any manner that the licensor (Microsoft, Adobe, etc.) sees fit—the firm can practically impose any limitations on your usage of its product after it concludes that your “purchase” is just a licence.

Most customers are used to a world in which it is entirely legal for the owners of secondhand books, CDs, DVDs, and other copyrighted works to sell them, so the concept that a licence to use a product was acquired rather than the product itself is counter-intuitive. Unsurprisingly, customers who sought to sell secondhand software CDs have filed lawsuits both for and against the government. The bottom line is: don’t. You’re breaching the law and violating the conditions of your licence.

The End User Licensing Agreement (EULA) that comes with the programme contains the licence terms.

The right of a consumer to transfer software is spelled forth in the product’s EULA. A EULA, for example, may state:

“LICENSE SCOPE. The programme is licenced rather than sold. This agreement only grants you restricted rights to use the programme. All other rights are reserved by COMPANY X. You are not permitted to transmit the software or this agreement to a third party.”

So there you have it. The user is believed to have agreed to this agreement and is therefore bound by its terms in return for the ability to use the programme.

What are any limitations on the software’s use?

Other limits on usage, such as the number of machines on which the application may be downloaded, may also exist, and some are imposed automatically. Some software products, for example, include a built-in way of identifying how many times the programme has been downloaded, and it will prevent download once a certain number of downloads have happened. The EULA of one online gaming software prohibits a user from installing the game on more than one computer and imposes a one-month waiting time before transferring computers, even if the purchaser owns both.

Examine the licencing agreement.

It’s a good practise to read the EULA for software applications before purchasing to prevent being surprised by limited usage. Consumers have complained (and sued) about not being able to read the EULA before downloading, and manufacturers have reacted by putting EULAs online. Salespeople may also be a valuable resource since they are typically aware with major software usage limits. Consumers are obligated by the conditions of the EULA whether they are known in before or after installing software.