A Modest Proposal For Software Resale

Do you have the right to resell software that you’re no longer using? Well, perhaps not, thanks to a ruling of the Ninth Circuit of the U.S. Court of Appeals, which covers the Western states. In the case under discussion, Autodesk, the defendant and appellant, claimed that the plaintiff, one

Do you have the right to resell software that you’re no longer using? Well, perhaps not, thanks to a ruling of the Ninth Circuit of the U.S. Court of Appeals, which covers the Western states.

In the case under discussion, Autodesk, the defendant and appellant, claimed that the plaintiff, one Timothy Vernor, didn’t have the right to resell AutoCAD software that he had purchased second-hand from an Autodesk customer. Up to a point, I understand the appeals court’s reasoning, even if I don’t agree with much of it; unfortunately, the existing case law generally focuses on the rights of the software publisher, and completely ignores the rights that purchasers of published works have long held under U.S. law.

The appeals court, in overturning a 2008 verdict issued by a U.S. district court in Washington state, chose to emphasize the terms of the license. Few end users ever read these licenses, to which they must agree before they can be certain that the software is suitable for their purposes. Furthermore, such “shrink-wrap” licenses are almost never a negotiated agreement between the software company and its customer; in the vast majority of purchases, it’s a take-it-or-leave-it arrangement. To me, that makes it more of a good, rather than a service.

The appeals court chose to disregard numerous precedents that allow published works to be resold by the initial customer, and instead suggested that Congress, if it so desired, could amend the relevant laws to permit this kind of sale. I’d like to suggest that any such revision take into account the reality of software sales, as well as the nature of software itself.

It’s very unlikely that the U.S. Supreme Court will agree to hear this case, if it is presented with the opportunity to hear an appeal from the Ninth Circuit’s decision. That’s a shame, because it calls into question one’s rights to other forms of media that are distributed in a fashion similar to computer software. Books, movies, and music are with every year less tied to a physical medium, and with the erosion of user rights to published works increasing from one decade to the next, a decision from the nation’s highest court would go a long way to resolving the “who owns what” question for the foreseeable future.

“Boxed” software ought to fall under the first sale doctrine (which permits resale) even if it has been previously installed, so long as that software is no longer used by the original purchaser. Resale rights should not apply in the case of software that has been upgraded at a discount price, because that discount took the earlier purchase into account. If you bought XYZ 2010 as an upgrade from XYZ 2007, and then try to sell your XYZ 2007 to another user, that’s shady business at best. But if I purchase XYZ 2010 as a retail product that was promoted as something suited to my needs, and decide that it isn’t in fact suitable, I ought to have the right to recoup some (if not all) of the money that I paid for it.

Holding my breath for an improvement of the situation, I am not.