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First Sale - Davidson v. Internet Gateway

By Pamela Jones et al.

Let's talk about the first sale doctrine. I thought you might like to see a first-sale case, now that Psystar is claiming first sale as a defense. Keep in mind that this is an area of unsettled law, as you can see by reading this article on the new CyberCases blog. One case doesn't give you the entire picture, but the one I'll show you at least presents the issues. And there are more cases listed on CyberCases. Also keep in mind that there is a difference between an end user selling a CD with software on it after he doesn't want it any more, and someone going into business selling someone else's software.

First though, I'll answer a question some of you are asking me: why do I care about this Apple v. Psystar case, since it's about mostly proprietary software I don't even buy? Why even spend time on it? Several reasons, actually, which I'll enumerate for you, but first, let me ask you a question, those of you who hope that EULAs get tossed overboard by this case:

Why are you looking for freedom in proprietary software?

You won't find it there. Why not instead use and develop Free and Open Source software, where you are free of such things as EULAs? No. Seriously. Why not? If you want freedom, stay away from proprietary software and you've solved all your EULA troubles. GPL code has no EULA.

Oh, my games! My games! I hear some say. I sometimes see comments where someone says the only thing they still do on Windows is play games. OK. Do as you wish, but then here's another question:

If you use proprietary software to play proprietary games, why do you expect the courts to care about freedom more than you do?

I want you to realize that proprietary means what it says, so be realistic. Courts are set up to protect property rights, including copyrights and trademarks and trade secrets and patents. It is what it is. If you want freedom in software, you know where you can find it.

Full post as published by Groklaw on September 04, 2009 (boomark / email).