CDs and the rights thereto

From: Eric Smith <eric_at_brouhaha.com>
Date: Mon Feb 10 13:01:00 2003

Mike Ford wrote:
> I once bid on a pile of junk in the corner of an auction, and turned out
> under a layer of misc there was a full pallet of cases of spindles of
> CDs for some current commercial software. About 20,000 CDs, no jewel
> boxes, but many boxes of the paper inserts, just I am sure no legal
> right to sell or distribute them.

In the US? If so, you bought them, and you have a legal right to sell
them. This isn't even subject to any sort of license; the ownership
of the physical media is completely clear-cut. The manufacturer has
no right to control your sale of the media in any way, except by
asserting that the physical media has been stolen (physical item theft,
not "software piracy"), or that the media was in fact produced without
their authorization.

Another way to look at it: what if you had bought a lot at an auction,
then discovered that it happened to contain a bunch of books, perhaps
the latest Stephen King novel? Could you sell those? Of course! The
case with software is similar, although there is a law prohibiting
software rental [*].

However, you (or any party to whom you sell the media) might or might
not have any right to *use* the software. This hinges on whether you
can run the software from CD or must first copy it to a hard drive,
whether such copying is infringement (possibly not as it may be fair
use), and whether making a transient copy of the software in the RAM
of the computer is infringement. As I understand it, there is
conflicting case law on these issues.

However, IANAL so YMMV.

Eric


[*] The prohibition on software rental was strongly pushed by the
publishers of video game cartridges. The law was passed, but
ironically video game cartridges are exempted and may be rented!
Received on Mon Feb 10 2003 - 13:01:00 GMT