Selling Purchased Software

By Deane Barker on August 26, 2005

Last Stand for First Sale: Here’s a fascinating discussion about whether or not someone can rightfully sell a legal copy of a piece of software they purchased. A woman tried to sell a copy of Dress Shop 5 Pro on eBay, and was contacted by the manufacturer and advised that she could not sell her software.

Flores found it hard to believe that Livingsoft would really have the right to so utterly forbid the re-sale of their product. She had read some of my stories that talked about first sale doctrine of copyright law, which basically says you can do whatever you want with a legally-acquired copy of a product except make an illegal copy of it.

It’s an interesting story without a clear solution. The seems the company (Livingsoft) was upset with how this woman handled it, especially after she told the president of the company that the software “sucks.” They had previously allowed other people to sell the software, but she offended them with her honesty, so they withdrew that right from her.

I find it ridiculous that software companies don’t allow you to sell your software. You bought it, so you can sell it. I understand they’re concerned about piracy or people “forgetting” to delete software they’ve sold, but I don’t see that as my problem. I bought the software — I should be able to sell it too. I just can’t see why that is complicated.

Gadgetopia

Comments

  1. Deane, et al:

    We at MacSpeech had a similar situation with a Canadian user who purchased our product, iListen, used. While our licensing agreement does not grant the user the right to resell the software, we routinely waive that limitation providing certain conditions are met.

    First, while we routinely refer to the end user “owning” the software, for virtually every piece of software I have ever purchased this is not at all true. What the user “owns” is a license to use the software, as well as the media and container and any other physical materials that came with the purchase. The software is owned, in whole or in part, by the developer.

    The reason for the limitation, in our case at least, is to protect the original user of the software. Anyone could borrow the software from a friend or neighbor, or acquire the physical materials by some other means and claim they acquired it with the original licensee’s permission, when, in fact, no permission was given. What we do is require the original licensee to send us permission to transfer registration of the license to the new licensee, and require they include the new licensee’s information.

    While this approach does not guarantee our software is not being pirated, it is a reasonable solution that seems to satisfy almost everyone.

    Chuck Rogers, Chief Evangelist MacSpeech, Inc.

  2. Yes, the buyer purchases a product and a single license to use the product, but the buyer owns them both and must be seen as having the right to sell what he owns. The “permission” part is wrong – only one person can own the license at a given time. I’m guessing that no company can actually win this one in court, but our only real defense is to avoid such companies.

  3. The license may be designated as non-transferable, but if this is not specifically designated, the licensee should be able to sell their acquired rights. The example of someone illegally acquiring software and claiming that they legally purchased a second-hand license is comparable to someone stealing a car and forging registration/title papers to claim that they legally own it.

  4. Couldn’t you get around this by “selling” say a piece of tissue, and as a FREE gift, you get a certain software?

  5. The fact that there are work-arounds and loop-holes indicates to me that the process is broken. Several years ago, I bought a copy of Windows 95 from ebay. The only way the seller could sell it was if the software was included with a system. Of course, at auction close, the seller asked if I really wanted the 40MB hard drive (the “system”) that may or may not work. Of course, I didn’t and it saved me a couple bucks on shipping.

    Another instance is that you can get discounted software (Windows XP, etc.) from Fry’s by purchasing it with a system. When asked what qualified as a system, the tech pointed to the row of CPU fans for $10 and said most people buy that and it qualifies. So I added $10 to my order and saved $150 on Windows XP Pro.

    If those are the rules, I’ll gladly play the game.

  6. What the user “owns” is a license to use the software

    I’m aware of the “license hack,” where vendors don’t sell software, they sell “licenses.” This strikes me as nothing more than a nice way to try and prevent people from selling the software.

    What will it take for consumers to reject this type of packaging and only purchase software that they can “own” and not “license.”

  7. What will it take for consumers to reject this type of packaging and only purchase software that they can “own” and not “license.”

    I don’t think it’s possible for people to “own” software like they own a toaster or a spoon. Software is inherently non-physical in a way that prevents ownership without damaging the company selling it.

    After all, if I own it, why can’t I sell it? For that matter, why can’t I sell a copy? It’s my disk and my burner, right? Why can’t I buy a CD, then go on national tour lip synching to it?

    Software needs to be licensed, it’s just that the licenses need to make some sense. Open-source licenses probably go the furthest towards being honest about what software is and trying to wrap a business model around it, rather than trying to wrap the idea of software around an old business model.

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