On the contrary, the advocacy groups may be hoping for an affirmation opinion from the Appeals Court that goes further than the lower court did to establish a First Sale doctrine for digital content.
The latter outcome seems highly unlikely. As an extreme example, they fear that “magic words” on, say, a cellophane wrapper on a printed book could prevent the buyer from lending or reselling the book. The advocacy groups fear a broad overturn that affects all sorts of content in various formats, leading to effective elimination of First Sale.
If it’s narrow, it could just effect, say, software products delivered on physical media such as CDs or DVDs, as opposed to digitally downloaded software or any other type of copyrighted work. If the Ninth Circuit were to overturn the lower court and say that an EULA trumps copyright, then the reach of the First Sale doctrine could change - depending on how broadly the opinion is worded. Last week several groups filed an amicus brief in the appeal, including representatives from the library community as well as “copyleft” advocacy groups such as Electronic Frontier Foundation and Public Knowledge. (Autodesk does offer limited-time usage options, such as a one-year license to Autocad for US $1995.) The judge didn’t buy that argument he said that the transaction is a transfer of ownership that constitutes a sale, so First Sale does apply, and therefore Vernor was within his rights to sell the software. Its rationale was that it doesn’t really sell its products it just lets buyers use the software under terms of the EULA. The case was decided in 2008 and is now on appeal to the Ninth Circuit.Īutodesk argued that Timothy Vernor shouldn’t be allowed to sell the software. Autodesk, a dispute between the CAD/CAM software vendor Autodesk and a man who offered used copies of the company’s Autocad software (which retails for thousands of dollars a copy) for sale on eBay. This issue came up in the federal district court case Vernor v. What happens to software or other digital content that you acquire under an EULA (end user license agreement)? Does First Sale apply? It’s unclear.
Other copyright laws have similar principles, which are generally known as “exhaustion.” First Sale makes possible such things as lending libraries and used book/record/video stores. You can sell it to someone else, lend it, or use it to line your birdcage or as a Frisbee. then you have the right to do whatever you want with it, and the publisher of the work has no ability to control what you do. The US copyright law has a provision called First Sale (17 USC 109), which says that if you acquire a copyrighted work - a book, CD, etc.
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