Section 5 of Executive Order 13158 ("Marine Protected Areas") directs each federal agency whose actions affect marine protected areas to "avoid harm" to the protected resources within marine protected areas. The question is whether Section 5 poses a direct conflict with the purposes of the Outer Continental Shelf Lands Act ("OCSLA"), a statute that promotes development and drilling, and administration of oil and gas leases along the outer continental shelf.

Clearly there is no direct conflict, since the Executive Order expressly states, in paragraph 1, that the Executive Order is designed "in furtherance of the purposes of" a number of existing statutes, including OCSLA. The other statutes mentioned in paragraph 1 include the Endangered Species Act, Clean Water Act, Marine Mammal Protection Act, etc.--statutes designed primarily for environmental protection, which is not the primary purpose of OCSLA. However the President specifically mentions OCSLA among the statutes whose purposes Executive Order 13158 is designed "in furtherance of." The express mention of OCSLA makes clear that the Executive Order is not intended to abrogate OCSLA in any way.

To the extent that there might be an unacceptable level of conflict between the purposes of OCSLA and the purposes of the environmental protection statutes mentioned in Executive Order 13158, the directives of Section 5 should not be interpreted as resolving the conflict in favor of environmental protection. Apparent conflicts between statutes cannot be resolved simply by executive order. E.g., Chamber of Commerce of U.S. v. Reich, 74 F.23d 1322, 1332-1334 (D.C. Cir. 1996).

The "avoid harm" provision of Section 5 is, by its own terms, self-limiting. Federal agencies are directed to "avoid harm" to the protected resources within marine protected areas "to the extent permitted by law and to the maximum extent practicable." Implementing Section 5 in such a way that strikes a balance between environmental protection and the developmental purposes of OCSLA is appropriate. Interpreting Section 5 in such a way that environmental protection trumps the developmental purposes of OCSLA would be a mistake of statutory construction and contravene congressional intent as expressed in OCSLA.

To cite a familiar principle of statutory construction: A later statute must be held to displace an earlier statute only if intent to abrogate the earlier statute is express in the later statute, or if such construction is "absolutely necessary" to give any meaning at all to the later statute. E.g., Traynor v. Turnage, 485 U.S. 535, 547 (1988).

If federal agencies are juggling apparently conflicting provisions of two statutes--such as OCSLA and an environmental protection statute enacted later in time-- those agencies should adhere to the principle of statutory construction that when two statutes are capable of co-existence, effect should be given to both, absent clear congressional intent to the contrary. E.g., Morton v. Mancari, 417 U.S. 535, 551 (1974).

Copyright Law and Software Licensing: The Limits of the "First Sale Doctrine."

Many e-commerce websites attempt to induce consumers to purchase "OEM" (Original Equipment Manufacturer) or "Academic" versions of software at drastically reduced prices. These versions are subject to different licensing arrangements and are not permitted for standard commercial and consumer use. Yet the e-commerce websites claim that their software is "100 % Legal" and permitted for unrestricted use. The websites purport to offer numerous warranties, money-back guarantees, and often are backed by legal theories that probably would not be dismissed out of hand by most judges.

One such legal theory is the "First Sale Doctrine." This doctrine permits the owner of a copy of a copyrighted work to lawfully dispose of that copy through resale. Thus the software distributor may claim that, since it is a lawful owner of copies of OEM and Academic versions, it can dispose of the copies at any price it chooses. The First Sale Doctrine was formulated in 1908 in the context of sales of books, where the first purchaser of lawful copies of a book chose to resell them at drastically reduced prices. The copyright owner claimed copyright infringement. Bobbs-Merill Company v. Straus Et Al., 505 U.S. 1003 (1908).

The intellectual property laws of the U.S. (and international treaties) protect the rights of creators to profit from their creations. Thus a creator of content (such as a software developer or manufacturer) need not part with his ownership of the content (i.e., the copyright). He can grant a mere license (i.e., permission) for others to use the content according to the terms of a license agreement. In Bobbs-Merill, the Court's decision pointedly noted that appellant had failed to assert any rights under a license agreement, instead choosing to rely strictly on the copyright laws.

Thus the First Sale Doctrine would seem inapposite in the OEM/Academic software controversy, since the software manufacturers are relying on their rights under contractual license agreements, not only on their rights under the copyright laws, to enjoin the unrestricted sale of OEM/Academic versions of their software.

The standard OEM license permits the licensee to integrate the software into original equipment (hardware). The standard Academic license permits the licensee to use the software for educational purposes at approved institutions. Assuming that the licenses do not contain anti-assignment restrictions, software distributors are free to transfer their licenses. They are not free, however, to transfer the right to use the software in a way not permitted by their licenses. It is axiomatic that one cannot transfer rights that one does not possess.

While the software distributor may own the physical copy of the CD containing the software, it does not own the content on the CD. Thus, resale of the physical copy of the CD is permitted by the First Sale Doctrine, but unrestricted transfer of the content is not.