컴퓨터프로그램 중고거래의 법적 해석방안

초록

We can find the characteristics of computer programs not to be decreased in value by use. Also, we can find that computer programs are distributed by license system so, we can not define what the second-hand-sale of computer program is though customers have tried to sell their CD-ROM including computer programs by the name of second hand computer program at internet malls. Against these behaviors, copyright owners assert that these conducts can make them have infringement on their rights and violate the contract between copyright owners and customers. To judge these assertions, we must know what the re-distribution of computer programs are in the meaning of legal system. About this problem, one can have the opinion that the distribution of computer program is just the 'sale' of it and the others can have the opinion that the distribution can be justified under license agreement. I think I can find several fatal defects about sale. First, I can not find any foundation for the real right in our legal system for Realty. Second, if we treat the re-distribution as the sale of the copy of copyrightable works, then the interest of copyright owners shall be damaged in so much amount. But if we treat the re-distribution as the re-license of the use-right of computer programs, then we can make the balance of interest between both sides. So, I think that the re-distribution of computer programs should be treated as the re-license which is the transfer of the customer's use-right, so we can apply the rule of the first-sale-doctrine and civil law to make reasonable resolution for second-hand-sale of computer programs.

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