First Sale Doctrine - UK Equivalent?
CJM
which essentially allows purchasers to re-sell copyrighted products.
Recently, this legislation has come to the defense of a number individuals
who were pursued by software publishers for reselling software.
In one case, Microsoft sued a guy who tried (and failed) to return some
un-opened software, and ended up making a small profit on ebay. Microsoft
sued for a share of the profits, the guy countersued using FSD in his
argument, and ultimately won a settlement from MS.
More recently AutoDesk sued a customer who re-sold his AutoCAD software -
with similar results - the FSD protected him. The judgement concluded that
the buyer had purchased 'the software' rather than a non-transferable
license to use the software.
I've tried to find details of the legal position to the issue in the UK.
While I can find commentary from publishers stating that this would be
unfair, and pretty much everyone else claiming it is an essential right,
I've struggled to find any categorical statement of law.
Anyone got any pointers?
For those that are aware of Steam (a popular digital distribution system for
games), I wonder why the FSD doesn't enable US Steam customers from
buying/selling Steam-based games? Or should it?
I've just sold a copy of Windows 7 on ebay. While I don't expect any visits
from Microsoft UK, was it legal from me to do so?
Tim Jackson
> For those that are aware of Steam (a popular digital distribution system for
> games), I wonder why the FSD doesn't enable US Steam customers from
> buying/selling Steam-based games? Or should it?
The US first sale doctrine says that if you lawfully own a physical copy
of a copyright work, then you can sell **that particular copy**. But
you can't make a further copy and sell that.
So someone who had legitimately installed a program on their computer
could sell the computer with **that particular copy** still installed on
it, for example.
I know practically nothing about Steam, but presumably if you sold a
Steam game to another user, it would involve making a new copy (perhaps
by transferring it digitally). So you wouldn't just be transferring the
**particular physical copy** that you have in your possession. And
therefore the first sale doctrine wouldn't help you.
For reference, the first sale doctrine is codified in US law at 17 USC
109. http://www.copyright.gov/title17/92chap1.html#109
And here is a report to the US Congress by the US Copyright Office. It
discusses whether the first sale doctrine permits digital transmission
of copies that you lawfully own, in circumstances where it would be
lawful to sell a physical copy. And whether it should be amended to do
so. (I've only glanced briefly at the Executive Summary.)
Do you have some references for the Micorsoft and AutoDesk cases you
cite?
Subject to seeing more details, I'm guessing that under the first sale
doctrine it would have been legitimate for the customer to sell the
original physical disc on which the program was sold to him. But I
would also guess that it was legitimate for Microsoft and AutoDesk to
impose restrictions in their licences, e.g saying that the software
could only be installed on one computer. I don't think the first sale
doctrine would prevent that.
So the cases might have really been about whether in fact the user had
installed the software on his own computer before selling the original
disc on to someone else. Or perhaps about whether he had uninstalled it
before selling it. I can imagine major software manufacturers being
suspicious when a user claims not to have kept a copy for himself, and
making him prove it in court. But I don't know the cases so I could be
wrong.
--
Tim Jackson
ne...@timjackson.invalid
(Change '.invalid' to '.plus.com' to reply direct)
Tim Jackson
> which essentially allows purchasers to re-sell copyrighted products.
[snip]
> I've tried to find details of the legal position to the issue in the UK.
> While I can find commentary from publishers stating that this would be
> unfair, and pretty much everyone else claiming it is an essential right,
> I've struggled to find any categorical statement of law.
>
> Anyone got any pointers?
See the Copyright etc Act 1988, sections 17 and 18.
http://www.opsi.gov.uk/acts/acts1988/ukpga_19880048_en_2#pt1-ch2-pb1
Section 18 was amended in 1996.
http://www.opsi.gov.uk/si/si1996/Uksi_19962967_en_3.htm#mdiv9
Section 17 says that making copies is one of the acts restricted by the
copyright in a work. And that includes transmitting copies digitally
(since a new copy is made in the process).
So that is the basis under which software producers can control whether
or not you are allowed to sell your copy by transmitting it digitally to
the new owner.
Section 18 says that issuing copies to the public is another restricted
act, which the copyright owner can control.
But under sub-section 3 (as amended) that usually doesn't include any
subsequent sale of copies previously put into circulation.
So selling the original physical copy is usually not restricted by
section 18. It seems to me that the result is analogous to the US first
slae doctrine.
The issue is whether a software producer can instead seek to provide
this restriction contractually, in the licence you agree to when you
install the software.
Tim Jackson
> And here is a report to the US Congress by the US Copyright Office. It
> discusses whether the first sale doctrine permits digital transmission
> of copies that you lawfully own, in circumstances where it would be
> lawful to sell a physical copy. And whether it should be amended to do
> so. (I've only glanced briefly at the Executive Summary.)
Sorry, forgot to include the link.
http://www.copyright.gov/reports/studies/dmca/dmca_study.html
Bambleweeny57
> In the US since 1908, there has been an established First Sale Doctrine
> which essentially allows purchasers to re-sell copyrighted products.
> Recently, this legislation has come to the defense of a number
> individuals who were pursued by software publishers for reselling
> software.
I've never come across an explicit mention of anything equivalent to the
FSD in the UK - not that is inherently definitive but I've be around
computer/software sales for many years.
>
> In one case, Microsoft sued a guy who tried (and failed) to return some
> un-opened software, and ended up making a small profit on ebay.
> Microsoft sued for a share of the profits, the guy countersued using FSD
> in his argument, and ultimately won a settlement from MS.
There are a number of companies in the UK that sell MS pre-owned licenses
entirely legitimately. The do though have do be very careful over
establishing ownership and a proper paper trail to establish the right to
resell.
> More recently AutoDesk sued a customer who re-sold his AutoCAD software
> - with similar results - the FSD protected him. The judgement concluded
> that the buyer had purchased 'the software' rather than a
> non-transferable license to use the software.
AIUI the Autodesk case hinged largely on the complete dog-breakfast that
was the Autodesk license agreement. The agreement was unclear as to
whether the buyer gained ownership or just a license to use. Autodesk
claimed it was just a license to use and non-transferrable. The judge
ruled that, as the agreement was junk the default position was ownership
and hence the FSD applied. This did not rule out a better written license
conferring just a right to use.
> I've tried to find details of the legal position to the issue in the UK.
> While I can find commentary from publishers stating that this would be
> unfair, and pretty much everyone else claiming it is an essential right,
> I've struggled to find any categorical statement of law.
And you probably won't... What you are more likely to find is cases that
set precedents for particular sets of circumstances.
> For those that are aware of Steam (a popular digital distribution system
> for games), I wonder why the FSD doesn't enable US Steam customers from
> buying/selling Steam-based games? Or should it?
I don't think there's inherently anything isn't Steam related games that
prevents their resale as such. However, as an online account is required
to unlock Steam games and that account is tied to an email address its
problematic to say the least to transfer ownership.
> I've just sold a copy of Windows 7 on ebay. While I don't expect any
> visits from Microsoft UK, was it legal from me to do so?
You can resell a copy of Windows provided its a standalone installation
i.e. not OEM. OEM licenses are tied to the hardware with which they were
supplied and are only valid as long as they stay with that hardware. If
you bought a Dell PC, for example, with Windows7 you could not
legitimately resell that copy without the PC.
BW
smurf
Hasnt European law elbowed its way in lately though? Once goods (i include
intellectual property as well as physical goods) have left the official
distribution chain, the original copyright holders have no control over the
resale and distribution of their goods?
Tim Jackson
> Hasnt European law elbowed its way in lately though? Once goods (i include
> intellectual property as well as physical goods) have left the official
> distribution chain, the original copyright holders have no control over the
> resale and distribution of their goods?
UK copyright law has been amended on a number of occasions to implement
European directives. In fact, that was the reason for the 1996
amendments referred to in my previous post. But I don't think they've
had the effect you are suggesting.
In fact, as regards the right to control the resale of the physical
goods, in one respect the 1996 amendment gave copyright holders more
rights than they had previously. Please see the text of Section 18 of
the Copyright etc Act, in the links given in my previous post.
Before 1996, section 18 said that the copyright holder lost control over
the physical goods once he had sold them, anywhere in the world. This
is often called "exhaustion of rights". If you bought a physical copy
of a work, you could re-sell *that physical copy*.
But section 17 prevented you making a *further* copy and re-selling that
(even if you uninstalled your own copy). So you couldn't re-sell by
digital transmission, for example, since that involves making a further
copy. Unless the licence from the copyright holder permitted it, of
course.
I think that's similar to the US first sale doctrine, as enacted in 17
USC 109.
After 1996, section 17 hasn't changed. It continues to say that you
can't make a further copy.
As to the right to re-sell your physical original copy, the 1996 change
to section 18 affects the exhausation of rights. It's no longer as
comprehensive as it was. If the copyright holder originally sold the
physical copy within Europe, you still have the right to re-sell that
physical copy. But if he originally sold it outside Europe, the
copyright holder's rights are not necessarily exhausted. Depending on
the circumstances, he may be able to prevent resale.
The EU continues to discuss further amendments to copyright law. I'm
not aware of any proposals that would substantially alter the above
position. But I confess that I've not been following the debates, so
I'm open to correction if anybody has up-to-date information.
Mr Re
> You can resell a copy of Windows provided its a standalone installation
> i.e. not OEM. OEM licenses are tied to the hardware with which they were
> supplied and are only valid as long as they stay with that hardware. If
> you bought a Dell PC, for example, with Windows7 you could not
> legitimately resell that copy without the PC.
What if you change components of the pc? E.g. over time you might replace
the graphics card, psu, processor, motherboard, case and so on until
eventually you end up with all new components. It might have started life
as an all Dell pc, but ends its life as an collection of replacement or
upgraded parts. At what point would the license become void?
Bambleweeny57
MS OS's since XP keep track of your hardware configuration and may need
to re-activate if you make too many changes. This may involve calling a
nice friendly MS helpline bod who will read out a 20 character string you
must type in to re-activate.
As to what constitutes the original PC... I believe it's the sticker that
OEM versions of the OS come with. In theory this should be stuck on
whatever the OS was bought with - typically the case.
BW
smr
Harry Potter once you've read it but you can't slice off the binding,
photocopy it and sell the copies. That's pretty much first sale in
everything but name. Copyright extends to the content but not the
physical property rights of the lawful possessor. You don't use
copyright law to stop the sale of goods, you use it to stop the
distribution of your content by people other than you.
Bambleweeny57
The problem though, in the context of the OP, is that you have to
inherently copy software as a necessary part of installing it on your
computer. Though you still have the physical CD, packaging, manuals and
paperwork the licensed copy of the software resides on the PC. The FSD,
or its UK/EU equivalent, is not nearly so clear cut for software as it is
for books, music etc.
It's further complicated by the fact that software sellers often claim to
only sell you a license to use and that license is not transferable.
BW
Tim Jackson
> This seems both legally and intuitively right - you can sell you copy of
> Harry Potter once you've read it but you can't slice off the binding,
> photocopy it and sell the copies. That's pretty much first sale in
> everything but name. Copyright extends to the content but not the
> physical property rights of the lawful possessor. You don't use
> copyright law to stop the sale of goods, you use it to stop the
> distribution of your content by people other than you.
It means that a copyright holder can't use section 18 to prevent the
resale of a copy of software that he put on the market in the EEA.
It still leaves open the question of whether he can try to achieve the
same effect contractually, in the software licence. And while I've not
studied the Microsoft and AutoDesk cases mentioned by the OP, I suspect
that question might still be open in the USA as well. The OP said the
software was unopened, so the defendant wouldn't have agreed to the
licence.
Unless anyone has more information, of course.
Chris R
smr opined:
The issue doesn't arise with books, because the sale of a book is not
copying, and the owner of the book has no copyright licence, so the sale of
a book is not an infringement of the author or publisher's copyright in any
event.
Chris R
smr
A book is just a physical medium to contain information, comparing it to
a CD is pretty easy to do. There are ways in which computers do things
very differently indeed to earlier technologies and there are other ways
in which they do things in comparable ways. I'm making the analogy to
selling the CD because that's not copying either.
Roland Perry
Sun, 1 Nov 2009, smr <stevi...@googlemail.com> remarked:
>A book is just a physical medium to contain information, comparing it to
>a CD is pretty easy to do. There are ways in which computers do things
>very differently indeed to earlier technologies and there are other ways
>in which they do things in comparable ways. I'm making the analogy to
>selling the CD because that's not copying either.
That's great if you want to use the CD as a beermat. However, most
people decide to copy the contents of the CD to their computer.
Yes, there are exemptions blah blah blah, but it's a fundamental
difference.
--
Roland Perry
Charles Bryant
>> of Harry Potter once you've read it but you can't slice off the
>> binding, photocopy it and sell the copies. That's pretty much first
>> sale in everything but name. Copyright extends to the content but not
>> the physical property rights of the lawful possessor. You don't use
>> copyright law to stop the sale of goods, you use it to stop the
>> distribution of your content by people other than you.
>
>The issue doesn't arise with books, because the sale of a book is not
>copying, and the owner of the book has no copyright licence, so the sale of
>a book is not an infringement of the author or publisher's copyright in any
>event.
However normal use of a book requires copying. When you read you can
only do so because of the copy formed on your retina in your eye.
Roland Perry
Nov 2009, Charles Bryant <n123248...@chch.demon.co.uk> remarked:
>>The issue doesn't arise with books, because the sale of a book is not
>>copying, and the owner of the book has no copyright licence, so the sale of
>>a book is not an infringement of the author or publisher's copyright in any
>>event.
>
>However normal use of a book requires copying. When you read you can
>only do so because of the copy formed on your retina in your eye.
Sometimes even British humour is too dry.
--
Roland Perry
Percy Picacity
news:PrdjDOEt...@perry.co.uk:
That's not humorous. The process the eye uses to allow the brain to
perceive the image is quite analagous (though rather different it does
involve storage) to the process a computer uses to store the image for
display. If it is a travesty of logic and truth to describe one as
"making" a photograph (when the writers of the statute in question
clearly had either recording an image from real life or composing it by
intellectual effort in mind) then it is equally a travesty to describe
the other as "making" a photograph.
--
Percy Picacity
Roland Perry
Tue, 3 Nov 2009, Percy Picacity <k...@under.the.invalid> remarked:
>The process the eye uses to allow the brain to
>perceive the image is quite analagous (though rather different it does
>involve storage) to the process a computer uses to store the image for
>display. If it is a travesty of logic and truth to describe one as
>"making" a photograph (when the writers of the statute in question
>clearly had either recording an image from real life or composing it by
>intellectual effort in mind) then it is equally a travesty to describe
>the other as "making" a photograph.
It's my view (although mindful of a discussion in another thread, I have
not yet had the time to plough through Hansard) that when POCA was
amended that the expression ...
"to take or to make any photograph or pseudo-photograph"
was really intended to say:
"to take any indecent photograph or to make any indecent pseudo-
photograph"
And this possible lapse of concentration by the draftsman has had some
undesirable consequences, if only because in discussions such as this it
tends to bring the whole law into disrepute if it is seen to need to
rely upon such wriggle-room to get a conviction.
I know that the police need the tools to do their job, but this is one
step too far, I think. If there was a need to include "viewing" in the
definition of "possession", there have been many opportunities for
Parliament to make a relevant (and clear) amendment.
--
Roland Perry