Sign In

Communications of the ACM

Legally speaking

Do You Own the Software You Buy?

hardware and software for sale

Credit: Windell Oskay

Examining the fine print concerning your rights in your copies of purchased software.

The full text of this article is premium content


Michael Brady

Please compare & contrast to "shrink wrap" license cases in the past.

It's clear that the industry expects the licenses to prevail over first-sale, though it may be (as you imply) a matter of contract rather than copyright law; all they're really doing is renting you the software on a throwaway disk. Is there anything in the old "shrink wrap" license cases that indicates otherwise?

Note also the restrictions on even making backups. Copyright law might allow you to make one, but the license can prohibit you from making any -- if the computer dies you get to buy new copies. Is there a way to buy insurance for this?

It's another reason to get open-source or freeware if possible. ALL commercial software is licensed not sold, and most has restrictions on resale and backups. Open-source or freeware is too, but the license is permissive so it's less of a problem.


Just because someone labels a product as "licensed" does not mean courts will necessarily agree that a transaction involving this product is a "license" instead of a "sale." Under an economic realities test, courts would look to details about the transaction rather than just the seller's characterization to make a decision.

It is, moreover, not true that all commercial software is licensed rather than sold. Some videogames do not come with license restrictions.

But you are right that if you want to make sure you can transfer software to other people, you would be better off with open source software than with commercial software.

Displaying all 2 comments

Log in to Read the Full Article

Sign In

Sign in using your ACM Web Account username and password to access premium content if you are an ACM member, Communications subscriber or Digital Library subscriber.

Need Access?

Please select one of the options below for access to premium content and features.

Create a Web Account

If you are already an ACM member, Communications subscriber, or Digital Library subscriber, please set up a web account to access premium content on this site.

Join the ACM

Become a member to take full advantage of ACM's outstanding computing information resources, networking opportunities, and other benefits.

Subscribe to Communications of the ACM Magazine

Get full access to 50+ years of CACM content and receive the print version of the magazine monthly.

Purchase the Article

Non-members can purchase this article or a copy of the magazine in which it appears.