Sale of software

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After yesterday's class I did a bit of research on the resale (or
transfer) of software licenses.

At (transfer of license) Microsoft writes:

License Transfer

If you are seeking permission to donate or transfer software product,
software licenses, or hardware loaded with Microsoft software to
another party, you may do so without obtaining written permission
provided you follow the terms and conditions of your End User License
Agreement (EULA). All transfers of license, either through a sales
transaction, donation, or gift must include all product documentation,
product manuals, original disks and licenses. Further conditions
of transfer may be included in your EULA. The individual or entity
giving up their software and license(s) must understand that they are
giving up all of their rights to the transferred software, including
all rights to upgraded versions of the software.

So, it seems to be possible for a private person to sell software,
although some software (the stuff preinstalled by oems (marked not for
resale) may not be sold again.

-- Preben Kjaer Kristensen, October 20, 1999


Preben is correct, and I was wrong in class yesterday.

Microsoft, as Preben says, does give you the right to "resell the software". Notice, to be technical, that legally you are not actually reselling the software, but "transferring the license".

In other words, this is a specific right granted to you by the Microsoft license. Legally, Microsoft could have written the license the other way, to forbid resale.

What if Microsoft's license had said nothing? Would you then have the right under US law to resell that particular copy of the software disk? Here I think the answer is "yes", but I'm not certain. In other words, I now think I was wrong yesterday when I said that the first sale doctrine did not apply to software.

What I was getting that confused with is another provision of the copyright law, which says that you cannot rent or lease a copy of a software disk without permission, except for schools and libraries.

-- Hal Abelson, October 20, 1999