Subscription/Service Fees - Legality

Carol A. Kunze ckunze at
Wed Mar 28 16:07:51 UTC 2001

Whether one "owns" a copy of software depends on whether title to the copy 
was transferred.  If the license addresses this issue that will generally 
answer the question.  Most open source licenses don't.

However, a license may grant title to a copy but still impose restrictions, 
for instance, on transfer.  Under the copyright first sale 
doctrine,  violation of the transfer restrictions would not be a copyright 
infringement, but could be a breach of contract.   See H.R. Rep. No. 1476, 
94th Cong., 2d Sess. 79 (1976).

If the license does not address the issue, a court would look at the facts 
and circumstances - restrictions in the license that are inconsistent with 
ownership may (not must, there could be contrary facts) be seen as evidence 
that the parties did not intend title to pass.


At 01:01 AM 3/28/01 +0000, you wrote:
>On Wednesday March 28 2001 08:27 am, David Davies wrote:
> > One key point of the argument is the
> > "In the United States, once you own a copy of a program, you can back it
> > up, compile it, run it, and even modify it as necessary, without permission
> > from the copyright holder."
> >
> > The key point being "once you own" and the question raised therefore must
> > be at what point do you "own" the software.
> > After you obtain it by any means
> > or
> > After you comply with the stated terms of the copyright holder.
>I have always held the radical opinion that if I've paid for it, it's mine! I
>go into a store, see a shrink wrapped box with the symbol $59.95 on it. I
>give the retail cashier $59.95, she gives me a receipt. It's mine, damnit!
>If, instead, the software is being rented to me, I want to know before hand.
>If I am only purchasing the rights to use the program, I want to know before
> > And does this apply only to Closed Source Software ?  If so why ?
>In the absence of a contract or other agreement (such as most licenses,
>whether or not you agree to them), any *copies* of software you legally
>aquire are your personal property. It doesn't matter if it's Open Source or
> > An interesting scenario.
> > Suppose I download the 120-day evaluation edition of MS Exchange 2000 from
> > MS site in accordance with the evaluation agreement.
> >
> > Is the software I receive mine because it is obtained legally ?
>Did you agree to the terms of the evaluation? If so then you are under
>contract and must abide by those terms. If, on the other hand, you find
>yourself in possession of the software through other channels, then you
>probably don't have a legal copy anyway.
>David Johnson

Carol A. Kunze
Napa, CA
ckunze at
707.371.1807 (fax)

More information about the License-discuss mailing list