Reader Laura Flores recently decided to auction off her copy of Livingsoft's Dress Shop 5 Pro sewing-pattern-producing software on eBay. "I paid over $400 for the software last year, and I decided didn't really like the way the program worked," Flores says. "So I listed it on eBay complete with the original CD they'd sent me, the key codes for the modules I'd purchased, and the on-disk documentation. I had three days left on the listing and I had a high bid of over $100, which was what I was hoping to receive. That's when the threatening e-mail started."

Flores and some of her bidders started receiving anonymous messages ominously warning it was "illegal" to sell Dress Shop. She then received an e-mail directly from Livingsoft support saying that it "has been brought to our attention that you are reselling your Dress Shop program on eBay, which is illegal according to the terms you agreed to. EBay is currently being notified of the illegal posting." When she wrote back to them, asking what was illegal about her auction, they replied with a long section of the Dress Shop End User License Agreement, the most relevant part of which seemed to be this:

"Once this software is opened and installed, you may NOT transfer this software (or a copy of this software or documentation) to another person. Excluded from this prohibition are gifts (you would not open the software or install it on your own computer if it was purchased as a gift, and you would present the gift within a short time of purchase) and resale by authorized resellers (again, you would not open and install the software if you were a reseller planning to resell the unit). If this software represents an upgrade to a previously owned version, you may NOT transfer previous software versions to another party. To do so represents a violation of Livingsoft's Licensing agreement. Penalties for violation may include, but are not limited to, retraction of all rights (including support, upgrades, updates, and purchase of related products) to licensed use of the software. You may not transfer, rent, lease, sub-license, or lend the software, CDs, or documentation."

Did the wording of that EULA actually make it illegal for Flores to sell the copy of the program she'd paid $400 for? "Livingsoft obviously knows I have a legal copy, because this was sent to the e-mail address I used to purchase the product, not the address I was using on eBay," Flores said. "I never heard anything from eBay, and I'm sure that if the Livingsoft people were right about this being illegal that eBay would have removed my listing."

Flores found it hard to believe that Livingsoft would really have the right to so utterly forbid the re-sale of their product. She had read some of my stories that talked about first sale doctrine of copyright law, which basically says you can do whatever you want with a legally-acquired copy of a product except make an illegal copy of it. In fact, the doctrine developed from early 20th Century Supreme Court decisions ruling against book publishers who tried to restrict re-sale of their products by putting the equivalent of shrinkwrap licenses on them.

As Corynne McSherry, staff attorney for the Electronic Frontier Foundation, discusses in EFF's Deep Links blog, what Flores experienced runs directly counter to the principles of first sale. "Not only is Livingsoft enforcing its EULA capriciously, but it's also trying to overwrite federal copyright law so that consumers can't resell their legally obtained copies of Dress Shop," said McSherry. "This aspect of their EULA flies in the face of a long-standing, consumer-friendly exemption to copyright law ... the right of first sale doctrine."

Since Flores felt she was well within her rights to sell the software, she decided to bring the auction to a close. She wrote her top bidder explaining the situation and asked if she wanted to proceed with the purchase. The buyer said she did, but then received another threatening missive from Livingsoft that made her decide she'd best back out. For the time being, at least, Flores seems to be stuck with her copy of Dress Shop 5 Pro.

Flores' attempts to persuade Livingsoft to let her sell the unwanted program have met with some strange responses. When she mentioned the first sale doctrine in one of her messages, Livingsoft replied that she was indeed free to sell the CD, but not the keycodes for the modules she'd purchased. (Without the keycodes, the Dress Shop 5 CD apparently functions as a demo disk, allowing the sewing patterns to be viewed but not printed out.) "What good is selling the software without the keycodes?" puzzled Flores. "If my buyer would have to purchase new codes from Livingsoft, the CD would be worthless to them."

Flores had also learned that another Dress Shop customer had been allowed to auction off the software after writing a polite letter to Livingsoft to prove it wasn't a pirated copy. Since Livingsoft knew Flores had purchased her copy legally, she asked them why she couldn't be extended the same right. Livingsoft replied that they make exceptions to their strict prohibition on transfers only when the customer has both "a financial or physical necessity to give up use of Dress Shop" such as an injury preventing further sewing and if they asked "courteously, prior to attempting to sell their software, acknowledging that they are requesting a favor rather than demanding a right." She met neither requirement, Livingsoft told her, particularly because "when the president of Livingsoft contacted you personally to remind you of company policy in this matter, you informed him that your reason for selling was that the software 'sucks' ... that reason doesn't qualify for an exception to our general policy."

This was the first that Flores knew that the anonymous messages had actually come from the president of Livingsoft. "Don't you find it amazing that my telling the president of the company that his software sucks -- when I didn't even know that it was the president -- has reflected on their decision whether or not I can sell the software? I'm really surprised by the actions of Livingsoft. I find it similar to buying a car, deciding to sell it, and then being told that I can do whatever I want with the car but transferring the keys to someone else is illegal."

That does indeed seem to be what software publishers like Livingsoft want to do with the fair use rights like first sale that we've enjoyed for years. Sorry, but whatever restrictive language their attorneys want to the throw into a EULA is supposed to carry more weight than our traditional rights. Of course, if you ask real nice and acknowledge you have no rights of any kind, they may grant you a favor. I for one am deeply grateful for the favor Livingsoft has done us by providing such a stark example of how we can expect businesses of all kinds to treat their customers in the world to which we seem to be moving.