Re: A bunch of NFR software (Logic, Shake...)

In article <2007072510322043658-jollyroger@REMOVEpoboxcom>,
Jolly Roger <jollyroger@xxxxxxxxxxxxxxxxxxxxx> wrote:

NFR stands for "Not For Resale", so if eBay allowed it, it'd be illegal.

Ahh...yes, that would change things a bit.

I'm still not convinced that the 'not for resale' restriction is
enforceable particularly on software that's unopened and the first owner
hasn't accepted an EULA -- although it depends a lot on how they
obtained it, i.e. did they agree to a contract somewhere along the line
saying that they wouldn't sell it.

If the software was just given away unrestrictedly, then I'm not sure
that the NFR clause could possibly hold water. This ends up with a
situation similar to professors who receive unsolicited "not for resale"
copies of textbooks in the mail [1]. The legality of the resale is
driven not by whether the book is actually marked "not for resale" or
not, but by how the first owner obtained the copy, and whether it
qualifies as a legitimate "first sale" under 17 USC § 109. [2]

Of course that only matters if you haven't agreed to an EULA. The ones
that have been opened and installed, though (and assumedly the EULA
agreed to), there you're probably stuck. Apple's EULA says:

NFR (Not for Resale) Copies: Notwithstanding other sections of this License,
Apple Software labeled or otherwise provided to you on a promotional basis
may only be used for demonstration, testing and evaluation purposes and may
not be resold or transferred.

So it can't even be given away, if you've gone past that point.

Overall it's probably not worth trying to sell it, even the ones that it
would be legal to; too big a chance of ending up with some major legal
bills.

-Kadin.


[1] Good discussion by a law professor here:
<http://madisonian.net/archives/2007/06/28/professor-review-copy-not-for-
sale/>

[2] Exactly how first-sale doctrine applies to software seems to vary by
jurisdiction; the district courts in California and Texas take a wholly
different approach than the Court for the Eastern District of Missourri.
C.f. 'Softman v. Adobe' on one hand and 'Davidson v. Internet Gateway'
on the other. It's going to make an interesting USSC case one of these
days.
.

Relevant Pages

  • Re: A bunch of NFR software (Logic, Shake...)
    ... It was given to me by Apple. ... I'm still not convinced that the 'not for resale' restriction is ... Of course that only matters if you haven't agreed to an EULA. ... the district courts in California and Texas take a wholly ...
    (comp.sys.mac.apps)
  • Re: components(software) for delphi that I want to sell ..
    ... Don't know about the others but it doesn't look like you can resale devexpress components: ... Not for Resale Software. ... for Resale" or "NFR", then, notwithstanding other sections of this EULA, you may not resell, ... distribute, or otherwise transfer for value or benefit in any manner, the SOFTWARE COMPONENT ...
    (borland.public.delphi.non-technical)
  • Re: Buying or renting?
    ... manufacturer and the software's purchaser with regard to terms of ... distribution, resale, and restricted use. ... > I see that the first two replies refer to the EULA. ...
    (microsoft.public.windowsxp.basics)