It is an unsettled question whether the first-sale doctrine of copyright law applies to software, and today the U.S. District Court in Seattle said no. The first-sale doctrine says that once you legally buy a copy of a copyrighted work, you have the right to sell or give away your copy after that as you please (but you still cannot make additional copies). It has been debated for years whether a copyright owner that distributes software is giving the purchaser a license or selling a copy of the software.

If the original transfer is treated as a license, then the first-sale doctrine does not apply and the copyright owner can control how the item is transferred (or even prevent transfers). If the original transfer is treated as a sale of a copy, then the first-sale doctrine applies and the copyright owner has no further control over the sold copy.

In the case today, Verner v. Autodesk, the District Court held that the original transfer was a sale, and that Verner could legally resell the software. The case involved Timothy Vernor's EBay store where he sold legitimate copies of AutoCAD among other things. Autodesk asked him to take down the software and he refused, so AutoDesk got EBay to take down the software. Verner sued, and today won.

This still doesn't resolve the overall conflict, it is just one more point on the board. The 7th and 8th Circuits of the U.S. Court of Appeals have held in cases that the original transfer is only a license, while the 3rd circuit has held that the original transfer is a sale of a copy. We will have to wait and see if Autodesk appeals this case to the 9th Circuit.

In the meantime, software manufacturers should look at their end-user license agreements (EULA) based on the court's decision and not rely on preventing subsequent transfers of software as a key element of their business model.

Specialized Practice

Mason Boswell and Boswell IP Law specialize in protecting ideas in the software industry, electrical / electronic / computer industry, and in the game industry.

We offer advice regarding intellectual property law, how to patent an idea, software patent infringement, and related disciplines focusing on protecting your ideas.

Client Focused

Whether you are seeking protection for the first core idea of your business or adding to an existing portfolio, we tailor our approach to fit your needs and business goals.

Patent law is complex, so we work hard to make the process easy and explain the law in a way that gives you the information that you need to make important decisions.


Our relationships with our clients are very important to us. If you are ever dissatisfied for any reason, we encourage you to discuss it with us and we will make it right.

Although we strive to do a great job, we believe that there is always room for improvement and we partner with our clients to actively seek ways to make our services better.

Fixed Fees

We prefer to perform our services for fixed (rather than hourly) fees so that the focus is on client interaction and high quality work rather than the clock.

Fixed fees allow you to budget effectively for protecting your ideas and to contact us whenever you have questions.

Nationwide Reach

We believe that learning about your idea is best performed in person, so we prefer to travel to you to learn about your invention.

We serve clients all over the United States, and do not charge for travel costs.

By Mason Boswell

Mason Boswell - Seattle Software Patent Attorney

Mason Boswell is a patent attorney in Seattle that focuses his practice on software, semiconductor, and game companies. In this patent advice blog, you will find current thoughts on patent strategy, patent-related news, and other interesting intellectual property topics.