9th CIRCUIT- COPYRIGHT LAW FIRST SALE DOCTRINE DOES NOT GIVE A LICENSEE OF SOFTWARE THE RIGHT TO SELL IT

11/11/2010

Legal software to disbar a lawyer

CHICAGO-(AEIPR)-DO YOU HAVE THE RIGHT TO SELL SOFTWARE THAT YOU PURCHASED? Software is licensed, not sold, and does not come with the right to resell under the first sale doctrine of the Copyright Act. You have the right to sell copyrighted books, CD's and Records, but do you have the right to sell software to a third party? Generally speaking, most software is licensed, not sold, and subject to contractual restrictions that may not necessarily qualify the user as an "owner" of a copy with the implicit rights of resale. Yet despite the "license" Recently, in Vernor v. Autodesk Inc., 2010 WL 3516435 (Sept. 10, 2010), the 9th U.S. Circuit Court of Appeals delineated a new multifactor test to determine whether a user of licensed software is an owner of a particular copy of the work or a mere licensee. Section 106 of the Copyright Act grants several exclusive rights to copyright holders, including the rights of distribution and reproduction. Certain exceptions to these rights are granted to an owner of a copy of copyrighted material.

The first sale doctrine entitles the owner of a particular copy of a copyrighted work to resell or otherwise dispose of that copy without need for permission from, or remuneration to, the copyright owner. 17 U.S.C. §109(a).

A 9th Circuit panel reversed the district's court grant of summary judgment to the plaintiff-reseller, concluding that an individual that resold used copies of software the original licensee acquired pursuant to a restrictive software licensing agreement was not entitled to invoke the first sale doctrine or the essential step defense. See Vernor v. Autodesk Inc.., 2010 WL 3516435.

Leo Stoller is a Intellectual Property Expert Witness who can help you win you're next trademark, copyright or Patent Case [email protected]

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