You can book a victory for resale rights

We all basically understand how we are legally allowed to treat one type of copyrighted product: a book. With software and other digital products, though, it's not so clear. But a terrific court decision last week at least suggests that we can treat all copyrighted products the same as a book -- even when they have sneakwrap license "agreements" that prohibit us from doing so.

The U.S. District Court

We all basically understand how we are legally allowed to treat one type of copyrighted product: a book. With software and other digital products, though, it's not so clear. But a terrific court decision last week at least suggests that we can treat all copyrighted products the same as a book -- even when they have sneakwrap license "agreements" that prohibit us from doing so.

The U.S. District Court in Seattle last week issued a decision denying a motion by Autodesk to dismiss a lawsuit filed by Timothy Vernor. Vernor's attempts to sell used copies of AutoCad on eBay had been repeatedly interrupted by Autodesk's DMCA takedown notices. Vernor, represented by Public Citizen and Seattle attorney Michael Withey, had sued to force Autodesk to concede his right to sell legally acquired copies of the software under the First Sale doctrine of copyright law. Autodesk's motion to dismiss argued that the AutoCad EULA prohibited Vernor from re-selling the software, but Judge Richard A. Jones ruled in Vernor's favor and the case will proceed.

The First Sale doctrine originated over a century ago when book publishers started putting the equivalent of today's software license agreements on their products, usually for the purpose of prohibiting or limiting re-sale of the book. Litigation eventually led the U.S. Supreme Court, and the U.S. Congress (in Section 109 of the Copyright Act), to set the rules straight. The copyright holder's rights to restrict the distribution of a particular copy end with its first sale. So basically, the First Sale doctrine says having legally acquired a copy of a work, you can then re-sell it, lend it, destroy it, or anything else you want except make another copy.

So why shouldn't that apply to software? Well, the software industry has of course always claimed that their products are licensed, not sold. By that way of thinking, First Sale doesn't apply because there is no sale. But is it a license just because the software publishers say it is? If so, then why can't the book publishers just start proclaiming that their books are licensed, not sold, as well? That was the issue the court in the Vernor case had to deal with.