WhiteCoat

You Don’t Own Your Software

An article I read in Wired Magazine kind of ticked me off, although technically I should be ticked at myself for not reading the fine print of the software I purchase.

A recent ruling by the 9th Circuit Federal Court of Appeals says that software you purchase is subject to the license agreements contained with the software. Nothing new there. But if the license states that you may not resell or otherwise redistribute the software that you purchased, then you’re stuck with it. Up until this time, there was something called the “First Sale Doctrine” which states that one who purchases a copyrighted work may sell that copy without the copyright owner’s permission.

Autodesk is a software manufacturer that produces a program called AutoCAD. The license agreement for AutoCAD states that the software may not be transferred or leased without Autodesk’s written consent.

When an eBay member tried to sell a copy of Autodesk AutoCAD on eBay, Autodesk demanded that eBay remove the listing, which it did. When the seller then tried to re-list the software, his eBay account was terminated.

The seller, Timothy Verner,  filed a lawsuit. The trial court held that the First Sale Doctrine applied. The Appellate Court reversed the trial court (.pdf), stating that someone who possesses a copy of a copyrighted work without owning it (such as a licensee) must abide by the license agreement and cannot transfer it to another person if the licensing agreement does not allow it.

Some parties are now concerned that companies will start creating licensing agreements for all kinds of products – with strict rules of transfer. You can’t sell or give away books you’ve read. Could the sale of a car of home come with a license and licensing agreements in the future?

This case reinforces the need to invest in free software and to encourage those who create free software.

I’ve been using OpenOffice for almost a year now. The latest version is amazingly simple to use and deals very well with Microsoft Office documents. Companies that are still leasing Microsoft Office products are throwing their money away.
I use GIMP instead of the Adobe Photoshop products. There might not be quite as many bells and whistles, but GIMP is still a comprehensive free product.
If it weren’t for a couple of office programs that I use on a regular basis which are only available in Windows (document scanning and voice recognition), I’d switch all of my computers to the free Linux Ubuntu operation system. Almost all of Ubuntu’s programs are free as well.
I still use Ubuntu on a regular basis, but switch back and forth with Windows depending on what I need to do. I’m currently experimenting with using Sun’s VirtualBox to run the programs inside of a Linux setup so I can dump Windows completely.

There are links to large collections of free software in the “Other Useful Links” page I keep up in the right margin. Take a look at some of the programs. Many of them are similar to commercial products … and you don’t have to worry about being involved in litigation if you dare to transfer the program to someone else.

Wonder if I can license blog posts …

26 Responses to “You Don’t Own Your Software”

  1. Anonymous says:

    The problem with the first sale doctrine is that it is part of a copyright law written in 1904 (might be off by a few years). They had no way of knowing we’d have everything we have today.

    While I agree that it’s not right to call someone who buys software essentially a long term leaser, it is up to congress to pass an amendment to existing copyright laws to fix this problem (which the judge mentioned in his ruling).

  2. Chrys says:

    Thank you for listing some of the programs you like to use. I’m going to check those out.

  3. christine says:

    You and my husband would get along famously!!! He’s a software engineer who installed Linux Ubuntu almost two years ago when I got a nasty virus somehow. I use OpenOffice, GIMP, and Inkscape. I have a few problems with OpenOffice dealing with some old Microsoft word files, but he’s usually able to fix it. OpenOffice can be a pain when I need to email a file to someone who uses Microsoft. There is one website that I can’t do any online shopping, but those are the only problems I’ve experienced. I would still recommend all the free products over Microsoft products.

  4. Bill Alexander says:

    Christine, the fact that there is an online site you can’t shop at is something your husband probably considers a feature, not a bug.

  5. christine says:

    har har har Bill ;)

  6. Doc99 says:

    Now if only someone would create OpenCPT or OpenICD10 …

  7. Jamie says:

    I don’t own the computer that I use, so I have no control over what’s on it. But I had to laugh as you listed all the programs I use and love. What do you use for a browser? We have Opera and I love it. (It’s another free program.)

    • WhiteCoat says:

      I have several browsers installed on my computer. Usually use Mozilla Firefox because of the ad blocker and other useful plugins. Also use SeaMonkey and Maxthon – both very speedy and use proportionately little resources.

  8. Niggs says:

    Yeah, that sort of thing pisses me off, too. There’s a dvd player program I really like and I can’t install it on my new computer even though I have it on two different instillation discs. One because I’m not installing it on a Dell machine and the other because I’m not reading it on a Sony optical drive. Yay copyright restrictions… I now use the open source program VLC to play dvds.

    As for books, publishers don’t exactly like libraries anyway because of that. E-readers and e-books on the other hand are just what they like, or they’re learning to. You can’t loan it, you can’t sell it legally and if they want they can take it away from you.

    Thanks for reminding me about GIMP. My really old and beloved paint program just does not work well in Windows 7.

  9. MadRocketScientist says:

    If you use GIMP, check out the Gimp Plug-In Registry

    http://registry.gimp.org/

  10. DensityDuck says:

    This has been covered elsewhere, but the situation was:

    *Architectural firm licenses AutoCAD for business purposes. The terms of the license specifically state that the license cannot be transferred.
    *Architectural firm decides to move. Someone finds the old AutoCAD disks lying around, takes them home, and sells them.
    *Verner buys the disks and attempts to resell them on eBay. Cue lawsuit.

    The original owner never had the right to “sell” anything in the first place, so Verner didn’t have legal title to the goods he was attempting to sell.

    • WhiteCoat says:

      I agree that the licensing agreement controls the use of the product.
      The licensing agreement just goes against one’s normal expectation of “owning” something you purchased and in that case, I think that the manufacturers should make it very clear that one’s rights with respect to ownership and resale of the product are clear.
      You spend $4000 on a software program and you still don’t own it because of the fine print in the agreement?
      Kind of like purchasing a car, driving it for a few years, then getting sued when you try to trade the car in for a different model – because of a couple of sentences in the owner’s manual that you tacitly agreed to when you initially purchased the car.

      • Matt says:

        A license by definition is less than complete ownership. The term “licensing agreement” alone should have put you on notice that your use was something less than complete control of the property.

      • Niggs says:

        @Matt

        Yes, well, but most people aren’t going to think that. Most people will assume it has to do with how you /use/ the program, and will not associate the word license with ownership of a product they just paid for. We’re not all lawyers.

        And for laughs: http://xkcd.com/501/

      • DensityDuck says:

        @WhiteCoat:
        “You spend $4000 on a software program and you still don’t own it because of the fine print in the agreement?”

        …yes? I don’t know what you expect me to say here. Welcome to the world of business software licensing. Hell, $4000 is cheap; the CAD package we use costs something like $8,000 per user per year.

        @Matt: Yes, exactly. (Yes, I know, I’m agreeing with you about something, don’t let it go to your head.) The issue is that people aren’t used to thinking in terms of licenses–we’re still used to the age when copying/redistributing media was difficult, and so nobody tried to enforce the distinction between “license” and “unrestricted ownership”.

        There’s a lot of similarity here to the introduction of barbed-wire fencing to the Old West.

        @Niggs: de facto is not de jure. The fact that lots of people don’t understand the law doesn’t mean it isn’t the law.

  11. ArtK says:

    Could the sale of a car of home come with a license and licensing agreements in the future?

    Yes

  12. Matt E says:

    +1 on ubuntu. For first time linux users, linux mint is a great starter distro (built on ubuntu, but has lots of media codecs built in)

    http://www.linuxmint.com/

  13. Tiger says:

    Yeah, it’s true – when you buy software you’re technically buying a license to use the software, and nothing more (you’re also, uhh, conveniently provided with a copy of said software so you can actually install it). And in almost every EULA for software since about… forever, they’ve stated that you cannot re-sell or transfer the license, recreate the software (even for a backup CD), etc etc. It’s just rare to see a company actually ENFORCE that. Not a surprise with such a pricey bit of software though now that i think about it – such things are common targets for pirates aswell due to the price.

  14. k says:

    Bring back the Borland license: you may install this software on as many computers, as long as you are able to use this copy on only one computer at a time

    I’m getting ready to ditch ‘Doze mself too much of a pain to maintain, let alone pay for.

  15. Soronel Haetir says:

    I wonder if Autodesk cared so much in the days when their software required a dongle (actually, I don’t know whether it does now or not).

    I am also somewhat surprised that a license term forbidding resale (so long as you do in fact sell everything and quit using it yourself) wouldn’t be void as against public policy as embodied in the first sale doctrine.

  16. Jenn says:

    First of all this is the 9th Court which has giving us gems like the Twin Books decision which everyone ignores. If you live under the 9th you are destined to be screwed with contradictory case law. Otherwise wait for a more reasonable court to cite this before considering it final.

    Think about a copyrighted book. Even though a buying one copy book does not give you the right to copy the content onto the internet or the right to translate the content into another language. You may sell the copy you own. That is first-sale doctrine. There is nothing out-dated about it. You purchase a copy not the IP. You own the copy not the IP. You sell the copy without affecting the IP in any way.

    Now many software “licenses” are not completely IP licenses at all but mostly contracts between you and the vendor. You are severely restricted by these contracts by what you may do with the copy which you own so long as you agreed to this contract in a legal binding way (Are you and adult? Can they produce the records of your agreement?). But if you throw your copy in the dumpster and John Doe picks it up; John Doe never entered into any contract with a software vendor and the vendor cannot enforce any contract they made at the time sale against people who were never parties to that contract. So John Doe is untouchable by contract law and copyright law only deals with IP right on the content and not the existing copy.

    In summary the 9th circuit screwed up again and it is unlikely to be the last time they do so. Don’t enter into copyright lawsuits in that districts as it is a crap shoot.

  17. Jenn says:

    “Even though a buying one copy OF A book”

    Sorry for the lack of copy-editing above (that was only the most incomprehensible one)

    A little 9th circuit back ground

    http://williampatry.blogspot.com/2006/12/bambis-twin-copyright-horrors.html

    Some background as to first sale being alive and well in the current century

    http://williampatry.blogspot.com/2008/06/first-sale-trash-victory-quanta-v-lg.html

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