Print

Please login or register.
1 Hour 1 Day 1 Week 1 Month Forever
Login with username, password and session length

[FCIM]

Recently I bought a study kit for the Patent bar which includes an exam simulator software. The software contains a license agreement glued to the CD's sleeve that says "This software may not be copied, duplicated, transferred, re-sold, or uploaded to the internet."

Regarding NFR software, I've heard that it only applies to commercial vendors, and in other instances, it doesn't apply if you sell it as "used" rather than new.

Also, such study kits are commonly resold used on ebay with simulation software included. So are these people all violating copyright technically, or is it fully legal to resell?

[Kaitlin]

I'm no great expert in copyright, but was interested in this topic myself and turned to copyright guru Nimmer to see what he had to say about software and the first-sale doctrine.

While apparently not all courts fully comprehend this, there seems to be a sound legal argument that when IP is embodied in a physical object, like a book, a phonorecord, or a software CD, attempts to restrict its re-sale through shrinkwrap "licensing" violate the first-sale doctrine.  So long as the first buyer/licensee got it legitimately and wasn't obligated to return it, he may resell it. 

As Nimmer puts it, "In short, the first sale defense would seem as operational in the software setting as it is in comparable circumstances to the millions of videotapes, books, and other physical media that have been sold." 2-8 Nimmer on Copyright § 8.12 (2009) [footnote omitted]. 

[FCIM]

That is interesting. Thanks for the insights.

Another interesting thing is that in selling the complete package (which also includes the course books, audio CDs), the simulation software would be a component of a greater whole. So it would be like selling a computer with software already installed in it. I don't have a lot of knowledge on this area, but my observation is that a lot of software licenses are for a single computer (and not for a single user).

So intuitively, I would also think that the "not for resale" license should (also) not apply if it's sold with the entire package.