Summary: New court ruling provides more 'ammunition' to those who warn peers and clients about the dangers of proprietary software (transfer or resale is officially forbidden in the US)

THE ugly side of proprietary software EULAs was highlighted here many times before, e.g. in [1, 2, 3, 4]. It's not just a Microsoft issue. A court in the United States has just ruled that the first sale doctrine doesn't apply to licensed software (last year we asked whether Microsoft violated this doctrine). This ruling is probably good news to all proprietary software vendors, even though it only helps show why proprietary software should be avoided.

This news was mainly covered in Wired Magazine although the original ruling is here [PDF] and there is a massive (over 600 comments) discussion in Slashdot and some comments in our IRC channels. From the original report:

A federal appeals court said Friday that software makers can use shrink-wrap and click-wrap licenses to forbid the transfer or resale of their wares, an apparent gutting of the so-called first-sale doctrine.

The first-sale doctrine is an affirmative defense to copyright infringement that allows legitimate owners of copies of copyrighted works to resell those copies. That defense, the court said, is “unavailable to those who are only licensed to use their copies of copyrighted works.” (.pdf)

The decision by the 9th U.S. Circuit Court of Appeal, if it stands, means copyright owners may prohibit the resale of their wares by inserting clauses in their sales agreements.

Pogson remarks that "[i]f I buy a licence to drive my car for a year, I cannot resell it because it expires but forever might outlast me or my car. Same thing goes with a PC. If I pay for forever and the thing goes belly-up in a few weeks through infant mortality, am I denied the use of that software for which I paid because the machine died? That’s not right. I should be able to sell the CDs on eBay and go on with my life without that PC if I choose. Why does M$ get to insist that I buy a new PC if I do not want to. Why do they get the right to charge for forever and only deliver a few weeks?" ⬆