Do you Own the
Software you Buy?
Examining the fine print concerning your rights
in your copies of purchased software.
SOFtWaRe COMPanieS have mass-marketed computer programs for the past few decades on terms that typ- ically purport to restrict
the right of end users to resell or otherwise transfer their interests in copies of software they have purchased.
The restrictions are usually stated in
documents known as shrink-wrap or
click-through “licenses.” Vendors of
other types of digital content sometimes distribute their works with similar restrictions.
Shrink-wraps are documents inserted in packaged software, often
just under the clear plastic wrap surrounding the package, informing purchasers they are not owners of copies
of programs they just bought, but instead have rights in the program that
are limited by the terms of a license
agreement. Click-throughs are similar
in substance, although the “license”
terms only become manifest when you
try to install the software and are directed to click “I agree” to certain terms.
Most of us ignore these documents
and the restrictions they contain. Be-
cause we bought our copy of that soft-
ware, we think we own it, regardless
of what any “license” document says.
We are also quite confident the vendor
won’t take any action against us, even if
we do violate one of the terms, because
realistically the vendor can’t monitor
every end user of its products.
allows rights holders
to control only
the first sale of
a copy of a protected
work to members
of the public.
“license” label, has been going on for
decades. Strangely enough, it has yet to
be definitively resolved. A recent appellate court ruling has upheld the license
characterization, but a further appeal
is under way in that case. This ruling is
also at odds with other appellate court
decisions. So things are still up in the air
on the ultimate issue. This column will
explain what is at stake in these battles
over your rights in your copies of purchased software.
three Legal options
The distinction between “sales” and “
licenses” really matters when assessing
the risk of liability to copyright owners
if resale restrictions are ignored.
Copyright law allows rights holders
to control only the first sale of a copy
of a protected work to members of the
public. After the first sale, the owner of
that copy is entitled to resell or otherwise transfer (for example, give it away
as a gift or lend it to others) the copy
free from risk of copyright liability.
Bookstores and libraries are among the
institutions made possible by copyright
law’s first-sale doctrine.