tiffac said:
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http://en.wikipedia.org/wiki/First-sale_doctrine
"However, in Europe, the European Court of Justice ruled on July 3, 2012, that it is indeed permissible to resell software licenses even if the digital good has been downloaded directly from the Internet, and that the first-sale doctrine applied whenever software was originally sold to a customer for an unlimited amount of time, as such sale involves a transfer of ownership, thus prohibiting any software maker from preventing the resale of their software by any of their legitimate owners.[3][4][5] The court requires that the previous owner must no longer be able to use the licensed software after the resale, but finds that the practical difficulties in enforcing this clause should not be an obstacle to authorizing resale, as they are also present for software which can be installed from physical supports, where the first-sale doctrine is in force.[6][7] The ruling applies to the European Union, but could indirectly find its way to North America; moreover the situation could entice publishers to offer platforms for a secondary market.[4]"
"Some software and digital content publishers claim in their end-user license agreements (EULA) that their software or content is licensed, not sold, and thus the first sale doctrine does not apply to their works. These publishers have had some success in contracting around first sale doctrine through various clickwrap, shrink wrap, and other license agreements. For example, if you buy MP3 songs from Amazon.com, the MP3 files are merely licensed to you and hence you may not be able to resell those MP3 files. However, MP3 songs bought through iTunes Store may be characterized as "sales" because of Apple's language in its EULA and hence they maybe resell-able, if other requirements of first sale doctrine are met.
Courts have struggled and taken dramatically different approaches to sort out when only a license was granted to the end user as compared to ownership. Most of these cases involved software-licensing agreements. In general, courts look beneath the surface of the agreements to conclude whether the agreements create licensing relationship or if they amount to, in substance, sales subject to first sale doctrine under §109(a). Thus, specifying that the agreement grants only a "license" is necessary to create the licensing relationship, but not sufficient. Other terms of the agreement should be consistent with such a licensing relationship.
In Vernor v. Autodesk, Inc. the 9th Circuit created a three-factor test to decide whether a particular software licensing agreement is successful in creating a licensing relationship with the end user. The factors include: 1) whether copyright owner specifies that a user is granted a license; 2) whether the copyright owner significantly restricts the user's ability to transfer the software to others; and 3) whether the copyright owner imposes notable use restrictions on the software. In Vernor, Autodesk's license agreement specified that it retains title to the software and the user is only granted a non-exclusive license. The agreement also had restrictions against modifying, translating, or reverse-engineering the software, or removing any proprietary marks from the software packaging or documentation. The agreement also specified that software could not be transferred or leased without Autodesk's written consent, and could not be transferred outside the Western Hemisphere. Based on these facts, the 9th Circuit held that the user is only a licensee of Autodesk's software, not an owner and hence the user could not resell the software on eBay without Autodesk's permission."
