How do you tell if the software is unopened?

In the US there's also the doctrine of "first sale", which says that once a particular copy of a work has been sold, the copyright holder no longer has the right to control distribution of that particular copy. That is, the physical medium containing the copy. This is a separate issue from transferring the license.

A few years ago, Adobe lost a case in which it claimed that the EULA prevented a retailer from buying bundled applications and selling them individually. The court held that although Adobe called the transfer a license, it was structured like a sale; and since the retailer did not assent to the EULA, they weren't bound by it.

Okay, so what if the seller had assented to the EULA? At the time the seller agreed to the EULA, he was granted a license to use the software (or fonts, etc.). (Just as you, the buyer, would be granted a license when you agree.) Obviously the seller can no longer continue to use or keep a copy if he choses to sell the media; but at that point, the seller may no longer be bound by the EULA.

To put it another way: not all provisions of the EULA continue to apply after the seller reverts his asset. Would a condition that restricted first sale rights continue to apply? I don't know the answer, and I'm not sure the answer is known, but there's an awful lot of used software for sale.

Now suppose instead that the seller isn't offering to send you physical media, but, instead, a pile of bits. Last fall EBay cancelled a listing where someone was trying to sell bits he got from iTunes. Unless the bits were public domain or the license allowed this, I don't see how such a sale could be legal.

This is all assuming that shrinkwrap licenses are valid, which is unclear. And legal does not mean ethical. And I am not a lawyer; this is not legal advice; and it's probably all wrong anyway.

Thanks for the input, guys (and gals). This was mainly out of curiosity, but I also wanted to know what my options are. I suppose when in doubt, ask the software company.

-Addison

One thing to keep in mind about buying software on E*Bay is that there's a lot of piracy there. If you see somebody advertising Photoshop 7 for $50, then you should assume there's something wrong. Most commonly, it's either a pirated copy in the first place, or unregisterable because the person upgraded to the next version, and is (illegally) selling their previous version.

I don't mean to tar all E*Bay software sales with that brush; there are plenty of good deals on old versions of software there. But sometimes, perhaps often, if the price seems just too good to be true, it is indeed too good to be true.

Cheers,

T

In other words, "There is no such thing as a free lunch"
:-)

But if I'm trying hard to be a free lunch type designer?

Actually there are plenty of stores popping up online selling many major software company products some in packaging and some for instant download.

They claim to be fully legal and I assume they're operating under the premise that the manufacturers are aware of their stores or have appropraite licensing to resell older versions of software.

Can we assume once a newer version is released the software company no longer cares about selling off its remaining inventory of 'old' software or allowing resellers to offer it at deeply discounted prices with their knowledge?

I'll hunt down some sites . . .

Stuart :D

I can't speak for all software companies, and I don't even know what Adobe's corporate opinions are on retailers selling old versions of apps. I'm sure many of these online retailers are legal, and I know that some of them aren't.

T

I think this mostly depends upon the software's EULA. Some foundries do allow transfer of the license, while others do not. I do know that Adobe software can be transferred, see this link.

Old software that is unopened (rare, but I've seen some on Ebay) are fair game of course.

Software that is unopened (rare, but I've seen some on Ebay) are fair game of course.

Shrinkwrap or sticker seal I guess.

ha. no alessandro, there is no such thing. hahaha.

david, what you bring up is very interesting. i'm going to have to do a little digging. i never thought i'd say this, but is there such a thing as a creative copyright phd? if someone has done something like this i'd love to read their dissertation.