Intellectual Property Law

Software's Last Sale

By Steve Cosentino

It seems like the first-sale doctrine doesn't get a ton of use in the software area.  The market for hand-me-down software is inherently limited.  Undoubtedly, however, there are those who take full advantage of the doctrine and the ability to transfer a specific copy of a copyrighted work after its first sale.  The 9th Circuit Court of appeals drastically limited the first-sale defense in a recent decision.   The 3 member panel held that the first sale defense is unavailable to licensees of copies of software and thus the doctrine can be preempted by a shrink wrap or click thru agreement.  The Wired article poses the interesting question of whether shrink wrap licenses might be applied to books in the future.  Is this the end of the used book sale? 

Undoubtedly, the decision will be challenged.  In the meantime, be on the lookout for shrink wrap agreements magically appearing in unusual places. 

Full post as published by The TechKnowledgy Blog on September 16, 2010 (boomark / email).