Can I have this bought for me?
April 17, 2013 9:38 AM   Subscribe

Can a company make software available *for sale* also non-transferrable?

My old university has Adobe software available for sale to students and staff at a steep discount. I am no longer in either of those categories, but I know many people who are.

I would like to get a friend to buy the software and then give it to me (essentially via the first-sale doctrine). Since the webpage states clearly that this is a purchase by the student, (and not a license to access, etc.) This shouldn't be a problem (legally speaking). Am I right? Here is the page and software.

(Note that in this case, I would have an authentic key to a, legally purchased, non-pirated copy of the software and would be the only person using it.)

As a complication the same office sells Microsoft software with this disclaimer: All sales are final: Non-transferrable, No exchanges and No refunds. Even in that scenario though, how can they restrict transfer after the sale of a product?
posted by oddman to Computers & Internet (8 answers total)
Note that they are selling the media. There is still a license attached, which is presumably an academic license only permitted to be used by students and staff. So technically what you are asking isn't 100% kosher. By the same token, that license probably states that users may only continue to use the software as long as they are students or employees at the university. But the reality is that Adobe isn't going to come knocking down anyone's door to see whether they are still a student, and make them uninstall it after graduation.

First-sale doctrine doesn't necessarily apply to software licenses. So you are free to re-sell the media the software comes on, but the license is separate, and they are free to restrict re-activation of the product or potentially to disable the product key to prevent reactivation if they so choose.

In reality, software companies know that students will keep using the product after they leave the university. So do whatever you feel comfortable with doing.
posted by trivia genius at 9:59 AM on April 17, 2013

IANAL, but I'm pretty sure that what the webpage should say is that it's a purchase of a perpetual license, which license prohibits resale or other transfer. And, on reading that page, I see what they actually say is that you're purchasing the media. You can do whatever you want with the media, but the media is useless without the license.

That said, this happens all the time and I'm not sure I've heard of anyone getting prosecuted for a one-off sale. But, no, I'm pretty sure you're not right.

See Vernor v Autodesk, for more.
posted by hades at 10:01 AM on April 17, 2013

Thanks, for the input. Does it make a difference to your reading that in the last paragraph they explicitly comment on obtaining the software, not the media?
posted by oddman at 11:24 AM on April 17, 2013

I don't think it matters what's on the university's website - it's simply semantics. Obtaining the software in this case means that they would make arrangements for a download or a mailed dvd instead of an in-person pickup. "Obtaining" the software in this case means finding a way to get you the installation media.

The license attached to the software, which you will need to agree to before completing installation, spells out what you can and can't do with it - that's what actually matters here.
posted by trivia genius at 11:29 AM on April 17, 2013

Have you looked into the Adobe Creative Cloud where you pay a monthly membership fee and have access to all their software? You might qualify as well for the reduced monthly rate of $29.95. I signed up recently and love it.
posted by snez at 11:57 AM on April 17, 2013

Are you talking about this?
Although most Student, Faculty and Staff purchases will be made in person by coming in to the Hub with your ID there are cases where users have been able to obtain software while not physically able to come to campus
Because that's talking about "software", not "the software". And note that it says "obtain", not "purchase". And even if it were talking about purchasing the specific software on that page, that's the university's page, not Adobe's. The university can't change the terms of the license agreement by misstating what those terms are on their own web site. At best, I imagine you'd have a case for forcing the university to give you a refund once you discovered the real terms of the license you were buying.

So, to reiterate: the scenario you propose is of questionable legality at best, but many people ignore the legal question and do it anyway. Let your conscience be your guide. But don't try to justify it legally; that way lies Supreme Court territory, and what cases there are to draw on for precedent haven't gone your way. (The recent ruling in Kirtsaeng v. John Wiley & Sons might make for an interesting argument at some point down the line, though. Might. Probably won't.)
posted by hades at 12:39 PM on April 17, 2013

Nthing that it is the license that matters legally, not the installation. I have purchased Adobe products through this (or a similar) educational program and the license is very explicit about who the user is and what it can be used for. At my university you would also need to register the license with your student ID.

So no, not kosher. But people do it.
posted by epanalepsis at 1:56 PM on April 17, 2013

If you have a friend who is an Adobe employee, they can get you software at employee price, which is cheaper than student price and is legit for them to buy on your behalf.
posted by w0mbat at 2:42 PM on April 17, 2013

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