[Ecommerce] second hand software sales battle

[Cem Kaner]

There is not yet a court battle, but in the United States, the Uniform 
Computer Information Transactions Act has specific language to address 
this. UCITA conceives of software transactions as licenses and authorizes 
software developers to grant fewer rights, even to mass-market customers, 
than the customer would obtain under the copyright act. In particular, the 
vendor is welcome to include a no-transfer clause that bars the first 
customer from selling or donating the software to anyone else without the 
permission of the original vendor. The Copyright committee of the NY City 
Bar Association and the U.S Intellectual Property Law Association both 
opposed UCITA because, in their analysis, it repealed the American first 
sale doctrine.

Under UCITA it is clear that games would be subject to transfer 
restriction. The more controversial topic (i.e. proponents make one set of 
claims about UCITA's scope, while others read the law differently) is 
whether it applies to software embedded in other consumer products. For 
example, the majority of the cost of development / manufacturer of a BMW is 
now the cost of the software. If you buy the car, can you transfer it? 
(Transfer the software in it?)

UCITA has been adopted in Virginia and Maryland. It is undergoing cosmetic 
revisions, will be considered (and probably voted up again) by the 
authoring group, the National Conference of Commissioners on Uniform State 
Laws (www.nccusl.org) in August, then returned to the states for adoption 
by another wave of states.

At 12:41 PM 6/5/2002 +0900, Takeshi Muramoto wrote:
>info
>
>Is there any same court battle in other country?
>
>Takeshi Muramoto
>
>http://www.japantimes.co.jp/cgi-bin/getarticle.pl5?nn20020605b7.htm
>
>METI enters fray over secondhand game software sales
>
>The Ministry of Economy, Trade and Industry has announced that it will set
>up a distribution study group to mediate the protracted dispute between game
>software makers and secondhand shops that sell their products.
>Software developers claim secondhand shops impede new products sales and
>strip them of chances to recoup development costs, according to the ministry
>officials.
>The dispute developed into a four-year legal battle, which ended in April
>when the Supreme Court ruled secondhand sales are legal.
>It was the court's first-ever ruling on copyrights for game software.
>The developers filed the suit against the secondhand sales in 1998, claiming
>they constitute copyright piracy because shop operators do not pay them
>royalties.
>They also argued their products should be treated like movies and therefore
>they should have the same distribution rights.
>The top court ruled however that copyright ends as soon as new products are
>put on sale and does not cover secondhand sales.
>Despite the ruling, the two sides have remained at loggerheads, which
>prompted METI to step into the fray. The ministry will set up the study
>group as early as next month to find what it calls a practical solution to
>the problem.
>The group is expected to include a recently organized body of 2,217 video
>game software shops, representing more than half the industry, consumer
>representatives and the semipublic Computer Entertainment Software
>Association.
>The ministry will consider allowing secondhand shops to continue selling the
>products but require them to pay developers "development cooperation" fees,
>which would not be considered copyright royalties, the officials said.
>The Japan Times: June 5, 2002
>
>
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______________________________________________________________________
Cem Kaner, J.D., Ph.D.
Professor, Department of Computer Sciences, Florida Institute of Technology

http://www.kaner.com            http://www.badsoftware.com

Author (with Bach & Pettichord) LESSONS LEARNED IN SOFTWARE TESTING (Wiley, 
2001)
Author (with Falk &  Nguyen) TESTING COMPUTER SOFTWARE (2nd Ed, Wiley)
Author (with David Pels) of BAD SOFTWARE (Wiley, 1998)