Posted by: Robert S. McManimon
In our American system, we’ve grown accustomed to the first sale doctrine. (http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01854.htm). As we’ve seen, this notion has created a variety of issues for software companies, who have instead opted to license their work in order to maintain control over it and any future sale. Ironically though, this type of behavior is actually a somewhat nuanced response to prior attempts to restrict the first sale doctrine on behalf of those software companies. As such, it may well be that the software giants would prefer a more European solution, namely droit de suite.
In 1990, President Bush signed into law an amendment to existing copyright law, known as the Computer Software Rental Amendments Act. The purpose of this act was actually to prevent the violation of the rights of existing copyright holders by prohibiting widespread duplication. |(http://www.copyright.gov/reports/software_ren.html). Lawmakers reasoned that the rental industry lent itself directly to this purpose, and that the prohibition of software rentals would secure the rights of the copyright holder by preventing an end user from simply renting the product and copying it for his ongoing use. Unfortunately, this prohibition has not achieved the desired results, and companies have turned to licensing in order to try and control their market and prevent the future resale of their work (or at least to profit from it). This seems to stand at odds with our traditional understanding of the sale of a chattel, and is facially confusing for any person that might hope to someday sell their copy of Windows XP at a garage sale (for use with what will presumably by then be considered a vintage computer).
But would a traditional European approach be any better? Arguably, it could at least delineate rights more clearly. Under the French droit de suite doctrine, an author retains some right to his work throughout his lifetime and even beyond. (http://ec.europa.eu/internal_market/copyright/term-protection/index_fr.html; http://www.thefreedictionary.com/droit+de+suite). While it stands at odds with our traditional conception of the nature of sales, the amalgamation of laws that we have drafted seems only to create ad hoc solutions to a more systemic problem. From the contract issues arising from shrink wrap license agreements, to the potentially unconscionable terms that may arise from such a contract, and perhaps most importantly the contracts of adhesion that can stem from these agreements. (http://www.bicklaw.com/publications/unconscionabletermsande-contracts.htm ). A recognition of droit de suite would establish that the resale of software is not without enforceable limitations. It would clearly define the limitations that can be placed upon software purchasers with respect to their ability to control the use of software after the initial purchase. Presumably, such a clear delineation would limit the number of cases that are necessarily litigated in order to determine which terms of a contract are enforceable, and which methods of sale constitute a valid contract formation between the copyright holder and the end user. It would also open up the potential for resale of the work by the purchaser without undermining the ability of a software copyright holders to reasonably profit from the creation of his or her work.
While it’s easy to laugh at such a notion, when it seems that the existing patchwork of intellectual property laws somehow address many of the issues most prevalent today, the cases are obviously far from settled. Software developers and distributors are involved in a constantly evolving process of trying to ensure their justifiable right to turn a profit. They have found new technological measures, and litigated to try to enforce their rights under the existing legal regime – with often mixed effect. End users, on the other hand, are involved in a constant testing of those boundaries, and potentially negligent violations of law due to the substantively different nature of software and the laws that govern its distribution. A widespread recognition of software as a product protected by intellectual property law with a droit de suite component would make clear to both parties that the right of an author to control his work does not end with the final sale, but it would also make clear that the purchaser (no longer a licensee) is not required to simply retain a product that he has no further use for out of fear of legal reprisal from the copyright holder.