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30 Jurimetrics J. 157 (1989-1990)
Licensing the Use of Computer Program Copies and the Copyright Act First Sale Doctrine

handle is hein.journals/juraba30 and id is 173 raw text is: LICENSING THE USE OF
COMPUTER PROGRAM COPIES AND THE
COPYRIGHT ACT FIRST SALE DOCTRINE
David A. Rice*
ABSTRACT
Software distributors license the use rather than sell copies of computer programs.
Retaining title to and merely licensing use of copies is a means for restricting program
rental and reverse engineering of program code, conduct which the Copyright Act per-
mits if one becomes the owner of a program copy. This article examines in detail whether
use licensing effectively circumvents the copyright law first sale doctrine and its conse-
quences. It first demonstrates, by exploring the critical distinction between the copy-
right owner's intangible rights in the creation itself and the purchaser's rights in the
copy, that claimed support from motion picture licensing and other analogues does not
exist. Then examining computer program licensing on its own terms, the article con-
cludes that transfer under use licenses is the equivalent of a sale in the case of both mass
market and limited commercial market program copy distribution.
Software marketing purports to license the use of, rather than to sell, com-
puter program copies. Copy use licensing seeks to maximize the economic
value of computer program copyright and trade secret protection. Specific to
copyright, the claim is that licensing the use of individual copies escapes opera-
tion of the copyright law first sale doctrine. That doctrine operates as a limit
on statutory copyright by vesting copy owners with the privilege to freely trans-
fer sold copies or to use them in some ways that otherwise might constitute
infringement of purchased copies. Avoiding operation of the first sale doctrine
by retaining title to copies and merely licensing their use lays a foundation for
contractual restrictions which expressly prohibit what copy owner privileges
permit. In particular, mass market and most commercial program copy use li-
*Professor of Law and Herbert J. Hannoch Scholar, Rutgers Law School, Newark.

WINTER 1990

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