Owner of Legal Software Can Sell on eBay
For a long time now, owners of lawfully made copies of software have been subjected to baseless claims that software is “licensed, not sold,” and therefore the right the Copyright Act gives to owners of lawfully made copies to sell them is trumped by the license. A seller of lawfully made copies of AutoCAD software, fed up with use of bogus copyright claims to suppress his competition authorized by the Copyright Act, sought a declaratory judgment that his sales are just fine. AutoCAD sought to have his claim dismissed, and lost. In Vernor v. AutoCAD, Judge Richard Jones, of the U.S. District Court for the Western District of Washington, did the sensible thing, ruling that even if Vernor breached some duty imposed by license, such breach would, at best, violate a contractual agreement, and could not be the basis for a claim of infringement where Congress authorized the very activity complained of.
The court correctly focused on whether the indicia of ownership were present rather than whether the copyright owner called it a license. This is the very course I argue the court in UMG v. Augusto should follow, where a record company tried to trump an Act of Congress by stamping “not for resale” on the copy Congress authorized to be resold.
If we are lucky, one of these days a judge is going to ask the question, “When you say licensed, not sold, what, exactly, are you licensing?” The answer tends to be some vague notion of “use”, or sometimes “use by students,” and some such nonsense. To be cognizable under the Copyright Act, a license must be related to the specific rights of the copyright owner. There is no general exclusive right to “use” in the Copyright Act. The ordinary use of a book is to read it, of a movie is to watch it, of a song is to play it, and of a computer program, to run it. All of these uses, unless done publicly, are considered private performances, and nowhere do private performances fall under the control of the copyright owner.
A copyright owner can no more escape the application of Section 109 of the Copyright Act by selling a copy subject to a “license to never re-sell it” than can an employer escape the application of minimum wage, workplace safety and anti-discrimination laws by hiring only “subject to the employee’s waiver of the application of employment and labor laws.” It’s high time our federal courts got over the initial mystery associated with computers and everything “digital,” and begin, as Judge Jones does, to apply these very basic, longstanding copyright principles as they were written, and without paying attention to the lawyers’ efforts to suggest that the same rules don’t apply when copies are made with “bits” on discs instead of ink on paper, grooves on vinyl, or magnetic impressions on tape.