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This is by no means a legal document and don’t think that this substitutes for the opinions of an officer of the court. Let me be clear – I’m going to present to you the research that I’ve done and what it means to me. It is NOT legal advice. Now that is out of the way, lets get to the heart of the matter on whether buying second-hand software is legal or illegal.
This is a HUGE topic especially considering the international scope of MakeUseOf.com’s readership. I can’t possibly cover all the legal aspects, both criminal and civil, of anything for every country that our readers come from. My focus will be mostly on Canada and the United States, since that is where my familiarity lies. You will probably find that in the Commonwealth countries the laws are similar to Canada.
What does illegal mean? That seems like a simple enough term, yet people use it in ways that have nothing to do with the meaning. For an activity to be illegal there has to be a law that prohibits the activity. If it’s just a recommendation or even a regulation against it, it isn’t really illegal. If we’re talking about criminal law, then no, I have not found a criminal code that lists selling second-hand software as illegal, specifically.
That being said, a criminal court might find you in breach of a copyright law. I’m not sure exactly how, or if that’s reasonable, but courts can make some pretty out there rulings when it comes to copyright law. I went through the Digital Media Copyright Act and the World Intellectual Property Organizations recommendations. I didn’t find anything explicitly against selling second-hand software. I didn’t even find anything remotely associated to second-hand software sales.
I also searched through two well-known Intellectual Property Law websites, Benedict.com and The Intellectual Property Server. My searches on selling second-hand software came up with inconclusive results as well.
In the European Union, apparently it is legal to sell licenses of software you are no longer using. In 2012, Oracle tried to sue UsedSoft for selling licenses to its enterprise database software. C/Net reports:
The rule applies to both physical media and copies of the software downloaded over the Web, according to the court.
The ruling applies to both downloaded software and copies of software on removable media. What does that mean? I can sell you the license and let you download the software, say, from my FTP site. But only in the European Union for certain.
The United States of America seems to have a somewhat more oppressive take on the sale of second hand or used software. They have something called the First Sale Doctrine when it comes to software. To quote Wired magazine:
The first-sale doctrine is an affirmative defense to copyright infringement that allows legitimate owners of copies of copyrighted works to resell those copies. That defense, the court said, is “unavailable to those who are only licensed to use their copies of copyrighted works.”
What does that mean in plain English? It means, when it comes to software or anything carrying a license to use, no one has the right to sell that license again once they’ve bought it. How does that work for retailers? I don’t know.
This case was a result of a man trying to sell used copies of Autodesk software on eBay. eBay, in my opinion and to their credit, fought this ruling along with the American Library Association. Can you imagine buying a book and not being able to resell it?
The court said that when you buy a book you buy the book – you’re not just buying a license to read the book. Hmm. How does that work for eBooks? The appeals court sidestepped that issue by passing it off to Congress, saying that Congress can change copyright laws, “if it deems these or other policy considerations … require a different approach.”
What if you buy it in the U.S.A. and want to sell it in the E.U.? Who knows?
End User License Agreements
Then there are the End User License Agreements (EULA). EULA’s are a form of contract law. Basically you are giving the software company consideration, your money, for their consideration – the right to use their software. Something of value has to transfer from both parties for a contract to be a contract. Most EULA’s have not been tested in civil courts so it can’t really be said what a EULA can and can’t do. At least not until you are in court with the software company. My guess is they have better lawyers than you and more money and time to throw at the case, so you’ll probably lose.
Adobe has this answer to the question, “Once I’ve upgraded, can I use, sell, or transfer the previous versions of the software?”
No. Purchasing an upgrade to your product extends your existing license to cover the new version of Adobe software. It does not provide you with two separate licenses for the old version and the new version. For example, if you upgrade from Adobe Acrobat 6 to Acrobat 7, you cannot sell Acrobat 6 to someone else.
If you purchase a new license, rather than upgrade your old software, you are permitted to transfer your old license. That is, as long as you did not purchase the original license with a volume licensing arrangement.
Clear as mud, right? Let’s see what Microsoft has to say on the issue. After over an hour of trying to navigate the Microsoft site to find the EULA for the most recent version of Office, I couldn’t find the EULA. So I took a look at the EULA for my copy of Office 2010. Here’s what I found:
I don’t know where to look from here. But I think they are trying to say they own the software and all I can do is use it. You might be amazed what is actually in some of these EULA’s. Read our article, 10 Ridiculous EULA Clauses That You May Have Already Agreed To, for some laughs and shocks.
Digital Rights Management
In case there is any confusion about who owns the contents of whatever medium it is that you are using, many companies have come up with something called Digital Rights Management (DRM) methods. If you want to get a deeper view of what DRM is, check out the article, What Is DRM & Why Does It Exist If It’s So Evil?
Basically, producers of content try to find a way to make sure that you don’t loan, rent, give, or sell their product by making it fail if you do. I’m not sure how this can be legal if there are used CD and record stores around. But it exists.
The Take Away
Is selling second hand software illegal? I don’t know. I don’t think anyone really knows. It appears like there are a lot of opinions and desires out there, but it also seems that nothing gets answered for certain until the case goes to the courts. That is a really expensive, embarrassing, and time consuming process. Make the best decision that you can. Contact the maker of the software and ask them if you’re really concerned and don’t understand. That’s about all I can suggest.