This is still controversial here in the US.
In the physical world something called the “first sale
doctrine” is key to maintaining the free flow of goods. Simply put, the first sale doctrine means
that once you sell something you do not get to control it anymore—you have “exhausted”
your rights to control distribution. It
is why there are important things like libraries and used record stores, and
why you can buy art at garage sales.
The transition from physical to digital has introduced
some ambiguity into the first sale doctrine.
Believe it or not, courts spend a lot of time considering the difference
between software that was purchased as a download and software that was
purchased on a CD or DVD. A recent
ruling by the European Court of Justice cuts through “how is it delivered”
questions and focuses on what is important: was the software sold?
Oracle provides computer programming licenses for client
server software for up to 25 users. The
license agreement has a clause that the license is nontransferable.
UsedSoft is a
German company that markets used Oracle program licenses when they fall out of
use because of mergers or insolvencies, or just because they are unused. The parties selling used programs are able to
release unutilized resources and buyers of the used programs are able to save
money. UsedSoft’s customers can download
a copy of the used software or purchase licenses for additional users if the
customers already have the software license. Customers (both sellers and buyers) receive a
notarized document confirming the license transfer.
EU Court Finds EU Law is Consumer Friendly
The Court of Justice of the European Union found that a
copyright owner exhausts the right of distribution to a copy of a computer
program once he sells, or authorizes the sale of, the copy. This means that whoever purchased the
computer program can resell it and the copyright holder cannot control the
resale of the copy. The Court found that
this exhaustion principle applies whether the copy is on a tangible medium like
a CD-ROM or DVD or an intangible download from the Internet, and it also
applies to corrected and updated programs that the copyright owner sells. Furthermore, the Court made clear that contract
clauses that deny the customer the right to transfer his copy of the computer
program are void.
When a copyright owner sells a copy of his copyrighted
computer program to a customer, ownership of the copy transfers to that
customer. The Court’s policy behind
first sale is that it prevents the copyright owner from receiving a windfall by
being able to control and demand payments each time the copy changes hands. The customer who purchases the used computer
program is authorized to download a copy of the program from the copyright
holder’s website. But the Court points
out that the copyright owner is still protected from copyright infringement
because the customer who sells his copy of a computer program must make his
copy unusable at the time of sale. This
keeps the copyright owner’s right to reproduction intact.
Bottom Line Rule
(in the EU): If you buy software to use for an unlimited
time in return for a one-off fee you own it.
Why This Matters
Take a moment to reflect on how nice it is to be able to
give a book you purchased to a friend—hassle free. If the German court handling the case between
Oracle and UsedSoft upholds the Court of Justice’s interpretation of law, then
many Europeans will be owners, and not mere licensees, of computer programs,
and they will be able to resell or give away the programs just like the books
and artwork that they own. For years,
consumers around the world have been able to sell or give away copyrighted
works they owned and the system continued to function. This decision paves the way for that to
continue to be the case long after people forget that software was ever
distributed on shiny plastic disks.