Legal Question in Intellectual Property in Iowa

Re: Returning software

Under 17 USC 109, the owner of a lawfully made copy is entitled to sell it back without the copyright owner’s consent.

But the retailer may decline because it might be difficult to re-sell and it probably cannot be returned to the manufacturer.

Second, some unscrupulous copyright owners try to twist the law to get around Section 109. Adobe, Microsoft, and others (including the Business Software Alliance) are actively trying to persuade the world that you don’t really own the copies of their programs – you just have a license to use them. They would argue that Section 109 does not apply because the person who bought the copy of the software is not the “owner”. I believe this is ludicrous, but they have succeeded in pulling the wool over the eyes of many, including judges.

Third, some also use licensing terms to get purchasers to agree to give up rights that Congress gave them. For example, there could be a licensing term purporting to extract an agreement to give up the right to re-distribute a particular copy of a computer program after the package has been opened. Attempts to use licensing terms to limit Congressionally-authorized rights has met with limited success in the courts – they have won and have lost. “The jury is still out,” and I am hopeful that courts will soon wise up to their semantical slights. If they try to impose limitations on redistribution of lawfully made copies they may find themselves, depending on the facts, open to claims of copyright misuse (leveraging their limited copyright monopoly to gain controls beyond the limits imposed by law) or claims of antitrust violations (trying to suppress or eliminate competition from secondary markets). Assuming, for the sake of argument, that the copyright owner persuaded a court that the retailer was bound by an agreement not to accept it opened, the penalty should be for breach of contract, not for copyright infringement. (But again, some copyright owners will argue all sorts of crazy things.) At the other extreme, if a retailer was selling copies of software and then buying back opened packages knowing that the reason for the purchase was to copy the program onto the consumer’s hard drive, there could be liability for contributory infringement of the right of reproduction. In one case involving a record store, a sale/buy-back scheme that the court ruled was, for all practical purposes, a rental, violated the distribution right of the copyright owner. Under an exception to Section 109, rental of sound recordings and of certain forms of computer programs is prohibited without the copyright owner’s consent.

In short, I am not your lawyer and won’t give you legal advice until I am, but for now you can use this introduction to the law for initial guidance in seeking out a lawyer who knows this stuff. Good luck.