Last month, a three-judge panel held that copyright's first sale doctrine – the law that allows you to resell books and that protects libraries and archives from claims of copyright infringement – may not apply to software if the vendor saddles the transfer with enough restrictions to transform what the buyer may think is sale into a mere license. Plaintiff Timothy Vernor has asked the full court to review this decision, and EFF – along with the Association of Research Libraries, the American Library Association, the Association of College and Research Libraries, and Public Knowledge – filed an amicus brief in support of this rehearing.
Copyright owners should not be able to trump the first sale doctrine by using a few "magic words" in a license agreement. By undermining the crucial balance between copyright owners and users that supports valuable resources like libraries, used bookstores, and rentals, the practice hurts both our ability to save a few dollars and our ability to retain, archive and access older, out-of-print materials. We hope that the court agrees to review the case and treats it as an opportunity to put consumer rights and expectations ahead of the overreaching demands of software vendors.