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Washington Journal of Law, Technology & Arts

Abstract

Many courts have found that software is licensed rather than sold. As a result, software often falls outside the first sale doctrine; however, Vernor v. Autodesk found with the minority of courts that software is sold rather than licensed, and granted owners of the purchased software first sale rights. This Article examines four pertinent concerns that flow from Vernor v. Autodesk, including: (1) the status of federal copyright law in the context of the first sale doctrine; (2) the judicial split among courts applying the doctrine; (3) where Vernor v. Autodesk fits into this split; and (4) the future of the first sale doctrine in software sales. This Article concludes that while Vernor v. Autodesk provides a fresh approach to the transfer of software that favors sales and, therefore, the application of first sale doctrine, the practical realities of software downloading will likely lead to the further expansion of the majority rule.

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