INTRODUCTION I. A BRIEF HISTORY OF COPYRIGHT LIMITATION: FIRST SALE A. The Grounds and Goals of Modern Copyright Law B. The Evolution of First Sale II. EXPANDING RESTRICTIONS, CONTRACTING USER RIGHTS A. Combining Copyright and Contract Law B. Expanding Control at the Expense of Individual Use III. THE VERNOR DILEMMA: LICENSING TO OVERRIDE FIRST SALE A. Autodesk's Licensing Practices B. Vernor at the District Court C. Vernor at the Circuit Court IV. THE BIGGER ISSUE: CONSUMER USE AND THE VALUE OF THE AUTHOR'S INTEREST V. TWO METHODS OF DEALING WITH THE EXPANSION OF STRICT LICENSING PRACTICES A. The Wait and See Approach B. Expand the Doctrine of Copyright Misuse CONCLUSION
The terms of the software license in the case are not very different from the terms of most software licensing. So I think it's safe to say that most people don't own their software.... The other ramification, there is no reason a similar license could not be put into the cover of a book. It wouldn't be difficult for everybody to implement this. (1)
Greg Beck, defense attorney in Vernor v. Autodesk
Imagine for a moment that you are in the market for a new car. You find a sports car that you like, talk with a salesperson and ultimately purchase a new automobile. This car is effectively the same as thousands of other cars. It is a copy. You were not under the impression that you were buying the rights to the design of the car or to reproduce the car to the exact specifications as your own copy. However, you believe that you can do with this car what you will. You can put bigger wheels on it, put stickers on it, modify the engine, or paint it a new shade of green. You can sell the car. You can give it away. You have consumer freedom, based on a court-created and legislature-supported doctrine known as "first sale." (2)
Now, what would happen if the car manufacturer decided that you should not own a copy, but rather you should merely have a license to the car? After all, such agreements favor the automaker, allowing greater control over consumer use of their product after it has been purchased. Now, when you open the door to step into the car for the first time, an attorney is sitting in the passenger seat. This attorney, holding a package of papers by his side, tells you that all you have to do is turn on the car and he can be on his way. If you so desire, you can read his papers, which contain more terms that you must agree to now that you have bought the car. If you do not want to agree to these new terms, you can step out, return the car and go home. In this hypothetical transaction, all automobile sales are now really leases, as the car manufacturers have collectively stopped offering cars for sale. This car is actually being licensed to you. You will agree to this license by starting the car.
In your desire to expedite the process, you decide to just turn the keys. The engine fires up and the attorney leaves, papers in hand. When driving back from the dealership, however, the car begins to act up. You try to turn off the highway onto the exit to your home, but the car will not turn. There is a device in the car that prevents you from taking the exit; that action violates the agreement you made with the manufacturer when you started the car. You search around the dashboard, find the device and remove it. This is against the agreement as well. You are notified that you are breaking the law and are now in violation of your lease agreement. Unfamiliar with such things, you decide that this car is just not for you. You try to re-sell the car, as you can no longer return it. Again, you are notified you are breaking the law and the contract. You are not even permitted to give the car away. You are left with a perfectly useful car that you cannot use and cannot get rid of. The car has been legally handicapped by the manufacturer even though it is physically and perfectly functional. …