![]() ![]() ![]() Several recent court decisions have upheld Rosetta Stone's position on this, and unless Congress intervenes the law seems to be that the "First Sale Doctrine" does not apply to licenses of software, the terms of which expressly prohibit assignment or transfer of the license to third parties. Rosetta Stone, like many other companies that license software, contends that the "first sale doctrine" does not apply, and that the licensee is not permitted to assign or transfer his license to third parties. Colman has provided an excellent summary of the legal questions that should be answered. You should seek the advice of competent counsel before taking any action related to your inquiry. The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. And so can be lawfully resold no matter what Rosetta Stone's "terms of use" state. The issue is whether a Rosetta Stone "how to learn a language" cd is more like a music cd - which can unquestionably be lawfully be resold under the first sale doctrine - or is it more like a computer program subject to the Autodesk analysis? I think they're more like the former. ![]() Specifically, computer programs are "used" by the licensee to do something for some effect whereas entertainment and entertainment-like works are complete in and of themselves - they ARE the "use," So, in my opinion, the Terms of Use contract "first sale" analysis that the 9th Circuit used in Autodesk is not applicable to the Rosetta Stone cd's. In short, the analysis required to determine infringement of entertainment and entertainment-like works is different in kind than the infringement analysis required when the subject matter is a computer program. At the risk of stating the obvious, the "how to learn a language" cd's sold by Rosetta Stone are NOT computer programs. ![]()
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