Abstract

http://ssrn.com/abstract=1443346
 


 



Don't Judge a Sale by its License: New Perspectives on Software Transfers Under the First Sale Doctrine in the United States and Europe


Aaron Xavier Fellmeth


Arizona State University (ASU) - Sandra Day O'Connor College of Law

Lothar Determann


Baker & McKenzie LLP; Freie Universität Berlin; Berkeley School of Law; University of California Hastings College of the Law

2001

University of San Francisco Law Review, Vol. 36, pp. 1-107, 2001

Abstract:     
Section 109(a) of the Copyright Act, known as the First Sale Doctrine, protects the lawful owner of a copy of a copyrighted work from infringing the copyright in that work by reselling the copy. The First Sale Doctrine constitutes a well established principle of United States and European intellectual property law. Nearly every commercial transfer of a copy of software is accompanied by an explicit license agreement which seeks to impose restraints on the use and resale of the software. Thus, the applicability vel non of the First Sale Doctrine affects virtually every software transaction. The consequences of this legal doctrine penetrate the very core of public policy on competition and consumer protection in the software market.

This Article reviews the origins and functions of the First Sale Doctrine as it applies to software and attempts to clarify the circumstances under which a software transfer constitutes a 'first sale.' This Article revisits the concepts of sales and ownership in order to avoid the common misconception that by labeling a transaction a 'license grant,' the final word has been spoken on whether a sale of a software copy has in fact occurred. By eschewing the common judicial dichotomization of a 'license' of software and a 'sale' of software, this Article shows that the form of the license is almost uniformly epiphenomenal. A software transfer must always involve a license in some form. This Article also examines the application of the First Sale Doctrine to software licensing agreements in the European Community.

Number of Pages in PDF File: 107

Keywords: first sale doctrine, license, software

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Date posted: August 6, 2009  

Suggested Citation

Fellmeth, Aaron Xavier and Determann, Lothar, Don't Judge a Sale by its License: New Perspectives on Software Transfers Under the First Sale Doctrine in the United States and Europe (2001). University of San Francisco Law Review, Vol. 36, pp. 1-107, 2001. Available at SSRN: http://ssrn.com/abstract=1443346

Contact Information

Aaron Xavier Fellmeth (Contact Author)
Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )
Box 877906
Tempe, AZ 85287-7906
United States
Lothar Determann
Baker & McKenzie LLP ( email )
660 Hansen Way
Palo Alto, CA 94304-1044
United States
6508565533 (Phone)
Freie Universität Berlin ( email )
Kaiserswerther Str. 16-18
Berlin, 14195
Germany
+49 (0) 30 838-70000 (Phone)
Berkeley School of Law ( email )
2850 Telegraph Avenue
Suite 500
Berkeley, CA 94704
United States
University of California Hastings College of the Law ( email )
200 McAllister Street
San Francisco, CA 94102
United States
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