I have to say I ain't no lawyer, but in my opinion:
I'm thinking that some of the wording in 17 USC and may lead credence to Fenwicks views. In a document from the Franklin Pierce Law Center they note in section 109:
" Second, copies authorized to be
made under section 117 may be transferred without permission of the copyright owner
only as part of a transfer of all rights in the underlying program. "
on page 2: "The theory of the first sale doctrine under the Copyright Act is that an individual who
purchases an authorized copy may use and resell that particular copy free of any restraint
by the copyright owner. n4 A copyright owner's authorized sale of an item "exhausts"
his exclusive distribution and display rights, such that the purchaser may use, resell or
display that item free of any claim of infringement. n5 In short, the first sale doctrine
addresses a copy owner's rights as opposed to the copyright owner's rights."
17 USC 117 states: (b) Lease, Sale, or Other Transfer of Additional Copy or Adaptation.—
Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program.
with limitations on selling adaptations.
Then there's the Congressional Research Service document where under intro heading First Sale it states:
"Section 109(a) of the Copyright Act expresses the “first sale doctrine” 42 that limits the copyright
owner’s exclusive control over distribution of the material objects in which a work is expressed.
The doctrine permits the owner of a particular copy of a copyrighted work to sell or dispose of
that copy without the copyright owner’s permission. The U.S. Supreme Court has previously
explained that “[t]he whole point of the first sale doctrine is that once the copyright owner places
a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive
statutory right to control its distribution.” 43 ...
Owners of lawful copies of
a copyrighted work are thus immunized from copyright infringement liability when they transfer
ownership of those copies to other individuals. 44
So it comes down to quite a few factors that will need to be decided in future rulings. In that CRS document they state:
The first decade of litigation involving software companies primarily addressed the extent to
which copyright protection was available for computer programs and did not analyze the
applicability of the fair use doctrine to software copyright infringement claims. 41 However,
beginning in the early 1990s, courts have considered the affirmative fair use defense in several
high profile software cases, as will be discussed in the next section.
This is getting into the realm of the recent "Right to Repair" John Deere recently stated that it was a violation for anyone but their authorized service centers to repair their products.
As the CRS doc conclusion states:
"Other interest groups, however, believe strongly in
broadly protecting the ownership rights of consumers and object to efforts by device
manufacturers to assert post-purchase control over electronic products through copyright law. If
Congress decides that this issue merits legislative attention, it would likely need to weigh the
appropriate balance between the rights of software copyright holders and manufacturers on the
one hand and the rights and expectations of consumers on the other."
Regardless, one consideration that's being overlooked is that unlike passive activities utilizing licenses of copyrighted material - such as the statements in USC of phonograph records and the like, use of something like AutoCAD or Altium results in the licensee generating THEIR OWN intellectual property. So when a company is selling their own IP - say in the sale of the business - that's locked into a certain binary format of technology they licensed, how can a company like AutoCAD or Altium lay claim that First Sale is not a consideration.
It's like - who owns the circuitry I design? When doing a work for hire it's a bit different (sort of like a rental of ME) but for a company that has capitalized software to create it's products, I'm not sure how any licensed technology restrictions can interfere with the sale of said company. If that's the case, every M&A (Mergers and Acquisitions) transaction would require the approval of companies like Microsoft, since all of these companies typically use the Office suite of products.
This gets into Antitrust issues where a small number of companies - due to their ubiquitous presence in all industries, would have control over those businesses.
This can go on and on forever... until some legal precedence shows that a licensee has the rights of First Sale and Fair Use in the operation, and eventual sale, of their business.
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