RE: single user license agreement

["John T. Mitchell" <John@xxxxxxxxxxxxxxxxxx>]

The first sale doctrine is codified in Section 109 of the Copyright Act,
and entitles the owner of a lawfully made copy to sell it, lend it or
give it away (and in most cases rent it) without the consent of the
copyright owner.  

Adobe got away with persuading a court that a EULA trumped this (Adobe
v. One Stop Micro), but in another case, Softman Products v. Adobe
Systems, 171 F.Supp.2d 1075 (C.D. Cal. 2001), Adobe lost out.  The court
correctly saw that use of a EULA to trump statutory limitations should
be void as against public policy.  

I've written a lot on this issue because I believe such conduct
restrains trade in violation of the Sherman Act.  One very short piece
(for a non-legal audience) that you may find of interest is at
http://interactionlaw.com/interactionlaw/id12.html, arguing that a
Microsoft  EULA that improperly expands the scope of the copyright
beyond the limits set by Congress could result in copyright impotence -
an inability to enforce the copyright while such misuse is ongoing.

John

______________________
John T. Mitchell
http://interactionlaw.com
1-202-415-9213


>  -----Original Message-----
>  From: Robert A. Baron [mailto:robert@xxxxxxxxxxxx] 
>  Sent: Monday, July 28, 2003 4:32 PM
>  To: Anne Mackereth; digital-copyright@xxxxxxxxxxxxxx
>  
>  >Hi - we are receiving many textbooks that include supplemental CDs 
>  >inside
>  >them.  The textbooks are part of our circulating 
>  collection. Our cataloger 
>  >read the single user license agreement and noticed some 
>  wording that we 
>  >think could cause us trouble.  The agreement states that 
>  the software must 
>  >be used "on only one computer at any one time."  No 
>  problem.  However, it 
>  >also states further down that the licensee shall not "loan, 
>  rent, or lease 
>  >the Software or any content."
>  >
>  >I have been told that the attorney at our small University cannot be
>  >consulted for such matters...so, in your opinion(s), does 
>  lending the book 
>  >with its CD constitute a possible copyright violation?
>  >
>  >Thanks for any assistance you can provide!
>  
>  In any case it wouldn't be a violation of copyright. If 
>  anything, it would 
>  violate contractual provisions that the seller imposes on 
>  the buyer. But it 
>  remains unclear whether such a contract -- which you only 
>  learn about after 
>  you have purchased the item -- is valid. Additionally, usage 
>  contracts may 
>  not be legal if they limit the privileges given under the first sale 
>  doctrine. (The first sale doctrine gives libraries the right to lend 
>  copyrighted materials they have purchased.)
>  
>  I've run across similar limitations that come with CDs. My favorite 
>  restricts use to the individual purchaser and prohibits the 
>  use of the CD 
>  for "educational purposes."
>  
>  
>  ===========================
>  Robert A. Baron