Software’s hard news

In a decision made Friday, the Ninth U.S. Circuit Court of Appeal concluded that software developers can place restrictions on the use of their products.

The decision represents a major blow to “first-sale” doctrine, which is a popular defence used against accusations of copyright infringement. The doctrine holds that an individual can resell his or her copy of a copyrighted product however they wish, regardless of the creator’s intentions.

The court concluded that this defence does not apply to software where an individual is only a licensee, without being an owner.

In an age where most people have never read a software license—which is usually lengthy and full of obtuse legal jargon—many will be surprised to discover that they are not “owners” of many of the applications on their computers. While this decision will help developers control the sale of their products, it will further the divide between consumers and software companies.

Many legal software buyers sell their old copies to others to fund the cost of upgrades. But, as the availability of bootleg software persists, consumers are rapidly running out of incentives to purchase software. By demonizing those who attempt to recoup some of the money spent on older software, this decision will likely encourage individuals to pirate software.

Though the decision applies only to nine western U.S. states, this is a dangerous precedent to start. The court’s ruling overturned a decision made in a lower court that first-sale doctrine applies to software. Furthermore, though Greg Beck, the defence attorney in the case, plans to request that the case be reviewed with 11 judges, the initial finding was unanimous—3-0.

The American Library Association protested the court’s decision, concerned that this decision would eventually expand to include other copyright material, effectively making it illegal to resell books or movies. While only time will indicate how far this loss of fair use will spread, this court decision is disturbing news.

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