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Sorry, but at least one court said you BUY software.

Your statement "Technically, you never buy software. Sure, you may take possession of some CDs and documentation. But when you buy software, what you're really acquiring is a perpetual license to use a specific version of that software."doesn't square with the decision of the judge in the Adobe v. Softman legal case about this very thing.
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These search terms have been highlighted: adobe softman copyright
Page 1
June 27, 2002
AT LAW
FROM THE ARCHIVES: June 27, 2002
Software Is Often Sold, Not Licensed,
Despite What License Agreements Say

By JON HART and STEVE BLUMENTHAL
Special to THE WALL STREET JOURNAL

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In this case Adobe sought an injunction prohibiting sale of the "unbundled" software. By re-selling the individual programs, Adobe argued, Softman was breaching the license agreement under which Adobe had distributed the boxed collection. Softman countered that the license agreement couldn't prohibit the company from selling the unbundled programs because it had bought copies of the software collections, not licensed them. And as the owner of the copies, Softman argued that it had a right under copyright law to sell those copies regardless of any restriction Adobe sought to impose under the license agreement. The court agreed. If It Quacks Like a Duck ...

Though Adobe characterized each transaction in the chain of commerce -- from Adobe to its distributors to Softman, and eventually to the consumer -- as a license, the court looked to the "economic realities" of these exchanges to conclude that Adobe had actually sold, not licensed, the copies of its software Softman obtained: "Adobe transfers ... merchandise to distributors. Distributors pay full value for the merchandise and assume the risk that the software may be damaged or lost. The distributors also assume the risk that they will be unable to sell the product. The distributors then resell the product to
other distributors in the secondary market. The secondary market and the ultimate consumer also pay full value for the product and accept the risk that the product may be damaged or lost."

And the rights are transferred in perpetuity; the buyer doesn't have to return the software to the seller upon expiration of some specified period of time. All-in-all, the court concluded, the transactions looked more like sales of copies of the software, than like licenses to use the software.

One of the exclusive rights that copyright law grants to the owner of copyright in a work is the right to distribute copies of that work. But copyright law has long provided that the
owner of a copy of a work has a right to sell that copy without any permission from the copyright owner. In other words, the owner of the copyright in a work has the exclusive right to sell each copy of the work the first time it is sold, but once a copy is sold, the buyer has the right to dispose of that copy as he sees fit. (But if the work is a sound recording or a computer program, the owner of a copy can't rent out that copy. That's why you don't see CDs for rent at your local video store.) Adobe couldn't use its license agreement to compel Softman to relinquish rights granted to Softman by copyright law under this "first sale doctrine."

It appears from this case that if it comes in a box that is purchased at retail then it is a purchase, not a license.

Posted by: Update victim   Posted on: 10/27/04 You are currently: a Guest | Members login | Terms of Use

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