I thought I remembered something about a court case involving the sale of secondhand software in the USA: Court smacks Autodesk, affirms right to sell used software
That case involved software originally sold on physical media, and the original physical media was being resold. The exact same copy that was originally purchased was resold. No reproductions were made. Once the physical ownership changed hands, there was still only 1 copy and the original owner no longer had it in his possession.
In the US, First Sale doctrine only applies to sales in which once you sell the item, you don't have it any more.
It doesn't work the same with digital downloads in the US because you can't transfer ownership of the exact original copy that you downloaded. Transfer of ownership of downloaded digital goods involves reproduction. You upload it to the buyer, and now there is the original file you downloaded, which you still have in your possession, and now the person you sold it to has a copy too, leaving you both in a position to be able to sell the file again and again and again, with the number of copies existing increasing with each sale. That's why First Sale doesn't apply.
I'll have to side with 4wd on this.
Yes. First sale DOES apply.
No. The software isn't sold.
But what does that mean? It means COPYRIGHT or PATENT.
But software companies aren't selling that. They are selling LICENSES. Big difference.
Once they sell you a license, you OWN that license. So yes. First sale does apply as you can sell your license because it belongs to you.
Let's not confuse the issue of copyright and licensing here.
But, getting around it is very easy. You simply give the software away for free, like a free trial/shareware/trialware/etc., but make certain that it doesn't work, or is limited, then you sell "activations" as a "service". You've already performed the service, and have no further obligation to perform the service again, so you get around "first sale" entirely.
Like I said above, there's more than one way to be a prick.