Elastic promises "open"—delivers proprietary

Augusto is the right citation. Thanks for poking me to read it again.

You could cite the case as weakening the conceptual case for the rule from Vernor. But it's also empirical proof positive that the courts will disparate treatment for software. They can and do treat it as a special case. It kind of is a special case.

Particularly with regard to computer software, we have recognized that copyright owners may create licensing arrangements so that users acquire only a license to the particular copy of software and do not acquire title that permits further transfer or sale of that copy without the permission of the copyright owner.

The court mentions that there were more factors to the rule in Vernor than just one. But it doesn't actually run through them systematically.

Go looking, and you can find distinctions it does make that maybe wouldn't go the same way for open software, rather than commercially licensed software. The absence of a "prior arrangement" for delivery of the copy. No attempt to keep track of specific copies. No response indicating agreement, though I'd argue open licensing is still very much "consensual". But the court's just piling on. They have the special statute about what happens when you mail unsolicited merchandise to people.

As I'm told Moglen used to say: "Don't learn copyright law from free software people." It's important to remember that we don't see copyright like other users of the system. Our policy preferences are often the opposite of prevailing and established public policy.

Software might have been covered by its own, special IP statute. We saw that for a time in Japan, for example. But it was put under copyright instead. Some of the established expectations and rules for older media haven't translated over to software. The general trend is making room for industry to monetize rights in software, as it figures out how to do that. Especially in light of how quickly and often distribution and marketing have changed.

If you mail a game critic a boxed copy of your next title and it ends up on eBay, I wouldn't be surprised to see a decision applying Augusto for the same result. But I suspect that would have as much to do with honoring long-held expectations about physical products as with any refinement of the First Sale Doctrine.