Buyers of hardcover books do not garner any rights in the author’s copyright, but may freely sell used copies or give them to friends. Indeed, under the first sale doctrine of the Copyright Act, consumers may sell or otherwise dispose of used books, CDs, DVDs, or other copyrighted goods purchased in the marketplace. But what about copies of mass-market software?

Generally speaking, most software is licensed, not sold, and subject to contractual restrictions that may not necessarily qualify the user as an “owner” of a copy with the implicit rights of resale. Yet despite the “license” label on mass market software, there is no bright-line rule that distinguishes mere licenses from sales. During a dispute, a court may recharacterize a supposed license arrangement as a sale after looking at the incidents of ownership, namely the payment structure of the transaction and the restrictions on use and transfer, among other things.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]