Selling my copy of Win-96?
- Thread starter n8gni
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DonS
Member
DaveNF2G said:
Actually, district courts in CA, TX, and MO have issued differing rulings on this subject. In the most recent case I could find, Davidson & Associates v. Internet Gateway Inc (2004), the court said "'The first sale doctrine is only triggered by an actual sale. Accordingly, a copyright owner does not forfeit his right of distribution by entering into a licensing agreement.'" A copy of that ruling is here. (This case _also_ described explicitly accepting an EULA, but that was separate from the above quoted ruling.) One item of concern is whether the software is actually sold, or whether the user is merely licensed to use the software, with ownership remaining with the copyright holder. If the latter, then title and ownership of the software never passes to the user, and the first sale doctrine cannot apply (according to the MO district court).
In any event, I don't have a problem with a registered user transferring their registration key to another. However, it's likely in the original registrant's best interest to involve me in the transfer, so that the new buyer can get their own name/key data. This is because the name/key data contains, at the very least, the original licensee's name and email address. Depending on how the registration was performed and if/when a user requested a replacement key, the data might also contain a street address, phone number, etc.
-Don
D
DaveNF2G
Guest
Those District Court holdings may or may not be a reasonable application of established law. The Supreme Court has apparently only addressed the first sale doctrine twice. One of those cases was decided based on the Copyright Act of 1909, and the other on the current Act of 1976.
Here is their statement on it, as summarized in the Lexis-Nexis headnotes (letter e):
"The whole point of the first sale doctrine is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution. There is no reason to assume that Congress intended § 109(a) to limit the doctrine's scope."
Quality King Distributors v. L'Anza Research, 523 U.S. 135 (1998)
Lower courts have found a difference between an "owner" and a "bailee," the latter of which does not take the privileges away from the actual copyright holder. So the question becomes, does someone who "purchases" software become the owner of their copy of a bailee of the copyright owner? That question has not been addressed for the benefit of the entire United States by the Supreme Court.
In any event, it's better to comply with any reasonable requirements set forth in the license agreement than to hope that a federal court will agree with you after the fact. I think Don's recommendation that he be involved in the transfer process is an excellent one, especially given his reasons for it.
Here is their statement on it, as summarized in the Lexis-Nexis headnotes (letter e):
"The whole point of the first sale doctrine is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution. There is no reason to assume that Congress intended § 109(a) to limit the doctrine's scope."
Quality King Distributors v. L'Anza Research, 523 U.S. 135 (1998)
Lower courts have found a difference between an "owner" and a "bailee," the latter of which does not take the privileges away from the actual copyright holder. So the question becomes, does someone who "purchases" software become the owner of their copy of a bailee of the copyright owner? That question has not been addressed for the benefit of the entire United States by the Supreme Court.
In any event, it's better to comply with any reasonable requirements set forth in the license agreement than to hope that a federal court will agree with you after the fact. I think Don's recommendation that he be involved in the transfer process is an excellent one, especially given his reasons for it.
indepmo
Member
Don
That is very kind of you. Many companies would say "too bad"
This makes Win96 even more appealing with the kindness you have
offered knowing if someone wanted to sell their equipment, you are
willing to go the extra mile as long as you are contacted.
That is very kind of you. Many companies would say "too bad"
This makes Win96 even more appealing with the kindness you have
offered knowing if someone wanted to sell their equipment, you are
willing to go the extra mile as long as you are contacted.
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