Posted on 09/13/2007 11:22:47 AM PDT by antiRepublicrat
A Seattle man is suing Autodesk for abusing the Digital Millennium Copyright Act in an attempt to restrict the resale of its software. The plaintiff, Tim Vernor, alleges that Autodesk has repeatedly sent copyright infringement notices to eBay, where he has tried to sell legal copies of Autodesk software, because the company does not want the used copies to compete with new sales of the software.
According to a copy of the complaint seen by Ars Technica, Autodesk began sending copyright infringement notices to eBay in May of 2005. He says that Autodesk never took the appropriate legal action to prevent the items from being relisted and instead continued to send DMCA notices to have the items removed. After at least five incidents of being reported to eBay for copyright infringement, Vernor's eBay account—where he was a powerseller—was disabled, which he says caused him to lose revenue from potential sales.
Autodesk attorney Andrew Mackay informed Vernor that the reason the company sent the notices was because the EULA on the software stated that it could not be resold and that Vernor did not have the liberty to transfer the software license to anyone else. Vernor argues, however, that the doctrine of first sale—a law that states that a customer can sell or give away a legally obtained copy of something once it has been purchased, without the permission of the copyright holder—cannot be signed away in a EULA. He adds to this the fact that Autodesk's contract states that, by opening the box to the software, the purchaser agrees to the listed terms. One problem: the contract is shrink-wrapped and located inside the box, and therefore the purchaser is not able to know the terms before opening the software.
Vernor's case is not the first of its kind. The sale of first doctrine has come into question several times in recent years, with the courts generally coming down on the side of the first sale doctrine. A California judge ruled in 2001 that Adobe's EULA did not apply to a businessman who bought bundled Adobe software and resold the individual components, because "the circumstances surrounding the transaction strongly suggest that the transaction is in fact a sale rather than a license." Another case was filed recently by Universal Music Group against a California man for selling promotional CDs on eBay.
The outcomes of both UMG's suit and Vernor's case will carry important implications for the doctrine of first sale and shrink-wrapped EULAs. It also carries implications for abusing the DMCA—this case is ultimately over a breach of contract, not copyright violations. One of the reasons companies misuse the DMCA and its takedown letters is that the tools can quickly accomplish what they want to have happen; stuff they don't like generally disappears from a web site once the DMCA is invoked, properly or not. When the other option is slogging slowly through the court system, takedown letters look like an excellent alternative.
If Vernor wins, it would strike a blow to companies that argue that consumers only buy a license to use the software, not the software itself. Vernor is asking for $7,000 in lost sales, $350 in legal fees, and $10 million in punitive damages.
Further reading:
I have CAD through AutoDesk...it was a foregone conclusion, I thought, that a resale was a big (a very big) no-no. That software is OUTRAGEOUSLY expensive, however. I got a discount as an interior design student or I could never have afforded it.
I believe First Sale trumps license terms. It’s about time software companies realize their products have to play by the same rules as all other copyrighted works.
I’m still running Autocad 2000, but I only use it for wireframe stuff. Any solid modeling I do gets done with Esprit. I don’t know how there current offerings measure up, but Autodesk always seemed very weak on surfaces & solids.
I wonder whay this ruling could do to Microsoft. Their policy is that Microsoft software cannot be resold.
Reminds me of that idiot Garth Brooks trying to shut down used CD sales back in the early 90s.
Same here. I bought it last year for my ID student daughter. I paid more so that she could use it for longer than the one year. The firm where she now works uses different software, so I suppose that I paid more needlessly. It’s very expensive.
Copyright, and the DMCA, is federal. 17 U.S.C. §109(a):
Notwithstanding the provisions of section 106 (3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.I know the precedent is contradictory these days, but the plain language and intent is that First Sale trumps the EULA. It has trumped such attempts for almost a hundred years, and companies should not be able to get around it with semantics.
Microsoft tried to nail a guy selling OEM Windows on eBay, and he counter-sued. Microsoft dropped it when it got public and later settled the counter-suit, but kept the terms secret. Microsoft also worked with eBay to have legitimate (even retail shrink-wrapped) auctions of its software pulled, and the resultant ire of the eBay users covered up.
It looks like Microsoft doesn't like first sale, but they don't want to push it through the courts.
I use MicroStation anyway, so I don’t care.
It gets better if you think of it the other way around. The only thing that keeps you from selling as many copies as you want in the first place is copyright law, which gives that right to the author. Since copyright law explicitly does not grant the author the right to control sales beyond the first sale, it is not within the author's rights to prevent such sales no matter what he puts in a EULA.
But doncha know copyright protections are only for corporations, not users..
ping...
Both times, it was a con job demanding I pay them a licensing fee for selling items I bought from legal wholesalers for resale!
I told both... 
And I do no carry any Zippo Lighters nor Tuskegee Airmen pins or wings anymore and will burn in Hell before I pay them one red cent!
BUMP!
Do you have any more Zippos?
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