Re: Re: Re: Derivative Inquiry

At 3:25 PM -0400 8/29/06, Steven Jamar wrote:
>I buy the MacroOffice suite of 10 programs for $800. But most people
>want only four of the apps from it.. Each app costs $300 separately
>from MacroOffice. Now, I unbundle the 10 programs and sell the
>popular apps for $200 each and the others for two for $100. I break
>even on the 4 major apps and make money on the lesser ones.
>
>1. Leaving aside the licensing issue for a moment, have I violated
>anyone's copyright?

As long as the programs are segregated on separate disks, and don't depend on any code that has to be copied and supplied to the transferee, the first sale doctrine covers you, absent a license agreement.

>2. If I haven't violated a copyright, then when MacroOffice tries to
>prevent me from doing this via its license, can it?

The issue is whether the Copyright Act preempts the enforcement of contract terms that depart from its default rules. I know it's a controversial issue, but I think the answer is, and ought to be, that there is no preemption. If you can surrender resale rights in a contract negotiation, and I can't think why not, then a shrink-wrap contract of adhesion, in my opinion, is enforceable unless it's unconscionable.

>3. Does it matter whether the software was not sold to me (no title
>transfer in the copy), just licensed for possession and use?

How is that different from question 2? First sale requires a sale. If the software is licensed, the license is enforceable, generally.

>4. Any antitrust violations here if MacroOffice tries to tie up
>resellers like this?

I don't see it off-hand. It's not unlawful tying because Microsoft will sell the application separately. I suppose it could be characterized as a vertical price restraint, but I think Microsoft can require authorized distributors to sell the suite in its original package, and prohibit any unauthorized repackaging of the individual programs by resellers, although that might come under the Lanham Act rather than the Copyright Act.

I'd be surprised, though, if you could install any of the programs in the suite without some "master code" contained on one disk and required for each program, and only supplied with each program at the higher retail price.

John

>Steve
>
>
>--
>Prof. Steven Jamar
>Howard University School of Law
>
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Received on Thu Aug 31 2006 - 22:55:00 GMT