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   First Used Doctrine - Software - Confused
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jabbathehut
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First Used Doctrine - Software - Confused
« on: Jan 13th, 2005, 8:06am »
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I have two questions, which are probably easy for people other than myself.  The license agreement in question is below.
 
#1)  I bought this used software from Company XYZ and it was accompanied by the following license agreement.  The DVDs contain animation and video content.  Can I legally incorporate the DVD content into my company's saleable product?  I'm concerned about what "nontransferable" implies for my using this 'used' software.  I've researched the "First Use Doctrine", but I'm uncertain how it applies here and my risk.
 
#2)  I'm not certain what Section 2 of means, "either a single background or effect or as part of any background/effects library, collection, set, or product."  With respect to the last portion of the statement, does prohibited use apply to all of a 'background/effects library', a 'background/effects collection', a 'background/effects set', and a 'background/effects product?  Or does it mean it applies to a 'background/effects library', a 'collection', a 'set', and a 'product'?  Hopefully that was clear.
 
Thanks.
 
End User License Agreement
 
COPYRIGHT MATERIAL
 
Copyright and Licensing Information COPYRIGHT MATERIAL
 
The computer software ("Software"), images ("Images"), printed materials ("Index") and other files contained on this CD (collectively called the "Data") are proprietary and copyrighted. This copyright is protected under U.S. and International copyright law. XYZ, Inc. and the parties who granted XYZ, Inc. special permission to include their respective material as part of the Data own and reserve all rights, except for those specifically granted by the license agreement below.
END USER LICENSE AGREEMENT
 
This is a non-exclusive, non-transferable license agreement between you and XYZ, Inc. Please read this agreement carefully before using the product. If you choose not to accept this agreement, you must return the product unused. By using any part of the Data, you are agreeing to the following terms:
 
1. The Data may only be used on ONE computer at any one time. For use on more than one computer at a time or for use and/or storage on a network designed for more than one user, you must acquire a special multi-user license from XYZ. Please call toll-free in the U.S. at Phone or Phone (International) for purchasing information.
 
2. The Data may be used, altered, or incorporated according to the guidelines described herein into any work (including broadcast, commercial, industrial, educational, and personal) that is created by YOU provided that work is not then sold or distributed as either a single background or effect or as part of any background/effects library, collection, set, or product.
 
3. The Data may not be used in a defamatory, scandalous, illegal, misleading, or otherwise unlawful manner and may not be used in or in conjunction with ****ographic material.
 
4. The Data may not be transferred to third parties through the use of on-line services or networks.
 
5. The use of any logo or trademark contained in the Images must be used in a manner permitted by the logo or trademark owner. This license does not grant you any right to use logos or trademarks.
 
6. You agree to indemnify and hold harmless XYZ, Inc. and all of its officers, directors, employees and agents ("Those Indemnified") for any and all losses, damages, liabilities, claims, costs or expenses, including reasonable attorneys' fees, incurred directly or indirectly by Those Indemnified in connection with the use of the Data for any unlawful, unauthorized or prohibited purpose.
 
7. You may not sell, sublicense, loan, give, or transfer any part of the Data or a copy thereof (except in accordance with the permitted use in a work created by you), to another person or company.
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JSonnabend
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Re: First Used Doctrine - Software - Confused
« Reply #1 on: Jan 13th, 2005, 10:27am »
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The first use doctrine is inapplicable here.  
 
From the sounds of it, you purchased a video effects library or the like.  If that's the case, I believe the intent of the license is to allow you to use the effects for finished video products, but not to re-distribute the effects themselves.
 
One word of advice: these comments are general in nature, and you should not rely on them to make business decisions.  Do yourself a favor, don't be penny wise and pound foolish.  Hire an attorney to give you sound advice before embarking on a specific course of business.
 
- Jeff
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SonnabendLaw
Intellectual Property and Technology Law
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jabbathehut
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Re: First Used Doctrine - Software - Confused
« Reply #2 on: Jan 13th, 2005, 10:59am »
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JSonnabend,
 
Yes, I bought a video effects library, used from eBay.  I was concerned about the license being 'non-transferable' and took that to mean that the first owner of the software could use it, but that they couldn't sell the complete software to me and then I use it.  Technically, I  thought that the first owner doesn't 'own' the library content from the DVD, and can't therefore sell that DVD to me for my use.  However, it seems to me that if the original purchaser doesn't own what they bought, then it would be worthless to them if they would ever want to sell (after changing to other software, to recoop capital).
 
From what I have read, this is a gray area relating specifically software licensing agreements and the First Use Doctrince.
 
I agree with you about seeking paid legal advice, but I'm trying to educate myself on the issue as much as I can.  Thanks for the help.  Any other comments, please?
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Isaac
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Re: First Used Doctrine - Software - Confused
« Reply #3 on: Jan 13th, 2005, 5:23pm »
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I think you are referring to "first sale" rather than first use.
In the US, first sale is not just a doctrine, but it's a
statutory provision of copyright law.  I see two potential
obstacles to applying first sale here.  First sale applies
to people who own copies of copyright protected material,
and lots of software vendors attempt to characterize users
as licensees vs purchasers.  To the extent that a court buys
that argument, the license can limit application of first sale.
 
The second issue is that first sale would not include the
right to make derivative works or to make copies.  To distribute
copies or derivative works you are relying on the license terms
rather than first sale.  In fact, simply making a derivative
work or copy even without distributing it might constitute
infringement assuming that those activities are not governed
by the license, fair use, or some other exception.
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Isaac
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Re: First Used Doctrine - Software - Confused
« Reply #4 on: Jan 14th, 2005, 8:15am »
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I understand now why you are concerned with first sale and all -- you hadn't mentioned that you purchased this software used.  
 
Isaac, as usually, has raised some interesting points regarding your situation, namely, the rights surrounding works created using the software in question.  I'm not aware of any case law on this.  I'm also not aware of any case law concerning rights surrounding purchased used software.  
 
The only substantive advice I can give here is make sure the seller hadn't used his original software license to obtain a "version upgrade" from the vendor.  I suggest that doing so may adversely impact his rights to sell you the used software -- whatever those rights may be.
 
- Jeff
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SonnabendLaw
Intellectual Property and Technology Law
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718-832-8810
JSonnabend@SonnabendLaw.com
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