"Fair" is not even a factor here.
To understand why, we need to step back and look at what this so-called "software" even is. To start with, it's not functionally software: it's a service. And it is one whose value is greatly diluted by over-circulation.
What this software is
Shoe companies (as in basketball shoes/sneakers) make limited editions of their shoes, for their fans. The shoe companies hold the prices to a reasonable and fan-friendly numbers such as $150 or $250. There is great demand, and getting a pair largely involves being online at the right time and "getting lucky". People who buy tickets for extremely popular events like Burning Man or Blizzcon go through this too: being home on the PC at the exact minute of release, dashing through the purchase forms, etc.
These shoes are collector's items, as you can imagine. There is quite an aftermarket on various trading sites. Prices run much higher, even into the thousands of dollars.
So there are third party traders/brokers/arbitragers who attempt to buy the shoes at the $250 price and flip the shoes into the aftermarket for thousands.
These traders do not want to "get lucky". They want to automate their purchase efforts, simply so they can be faster than all the fans trying to do it by hand. So they use automated software to interact with the manufacturer's sales websites: this software loads the web pages, interacts with the forms, and submits the purchase, all in milliseconds. This type of software is called a "bot".
Programming a "bot" is actually pretty hard. Most shoe brokers don't want to reverse engineer the websites and write scripts to interact appropriately. (I've done this sort of thing, it's a PitA). They want to buy someone else's work in this area, and given the money they can make, they are willing to pay for it.
The tragedy of the commons
The manufacturer does not like bots.
They don't make these limited editions for brokers to profiteer off of. They make them for fans. The manufacturer is keen on as many of these shoes landing in the hands of fans as possible. However, fans do not run bots.
If the bots were completely uncontrolled, every limited release would sell out in the first 4 seconds, all to bots. Every fan would experience only a "Sold Out" notice. This creates a bad experience for fans, and word would get around quickly among fans that trying to buy limited editions was a total waste of time.
Well, if shoemakers wanted every sale to go to brokers, they would simply hold an auction and let brokers bid up the prices. But that is not their point in doing these sales.
To deter this and give fans a chance, they certainly have told their IT/InfoSec departments to take technical countermeasures against the "bots" so that the bulk of sales actually do make it to fans. And so, we have an arms race. The bot will break, and bot makers will rush to defeat those countermeasures. And InfoSec will shoot back and break the bot again, and bot makers must rush to defeat that too. While the bot maker works, all its customers are down.
The company doesn't want to spend infinite resources on this, so they have probably pegged a target "metric" — say, "85% of sales make it to fans".
What this means in practicality is, if bots operate at too large a scale, the shoemaker can bury the bot with an ever increasing number of countermeasures. In an arms race, the bot maker loses.
So there is an uneasy detente between shoemaker and bot maker: the bot maker makes sure bots don't dominate sales, and the shoemaker doesn't break the bots every week and put all the brokers offline until the bot can be updated.
This tells us a couple of things.
- This is not ordinary software like Microsoft Word. The bot must be constantly updated to beat the latest countermeasures. As such, though it may look like software, it is actually a service - the service of keeping the bot up to date.
- The bot maker has tremendous, legitimate interest in limiting the number of copies in circulation. To avoid antagonizing the shoe makers.
And, re: "fair", you need to read the EULA/TOS of each of the retail websites you would use the bot on. Each will have a clause requiring you to agree not to use bots. So the entire point of this botting software is for you to violate legal contracts! But that aside...
Does the bot maker have a right to limit copies sold?
Yes, of course they do. It's their software, and control of usage is the heart of what "copy rights" mean.
Further, in this situation they have a very good and defendable reason for wanting to limit coinage of licenses.
This also explains their willingness to allow licenses to be resold (something software makers usually try to avoid). They want a user who is finished with the software to surrender their license, so they can "keep a lid on" the number of licenses out there.
It's ironic: the whole reason you want this software is to buy sneakers at list price (e.g. $150) and resell it at market rates. Yet when brokers of this software do exactly the same thing with the software itself, you don't like it and want to report it to the FTC.
Do they have a right to charge any price they please?
Yes, they certainly do.
Do they really have a right to set opportunistic pricing?
Put it this way. Suppose the only way they sold copies of the software was via eBay auctions, with prices being driven up into thousands of dollars by buyers. Would that be legal? Of course!
Is there a problem with their odd way of pricing?
There might be, but it's a semantic issue, since they are in the whole allowed to charge what they please. The best you could hope for is force them to change how they state their prices: a pyrrhic victory. Like the "Don Quixote" who beat Big Oil, proving in court it was illegal to have a 5 cent surcharge for credit. The very next day, prices went up 5 cents... and the signs changed to "5 cent discount for cash". Golfclap.