Posted on 05/22/2008 1:21:52 PM PDT by antiRepublicrat
The US District Court in Seattle on Wednesday ruled in favor of eBay seller Timothy S. Vernor, denying Autodesk’s request for “summary judgment” against Vernor. In doing so the court ruled that Vernor had the right to appeal for relief from Autodesk actions based on the “first sale” doctrine of copyright law. In finding for Vernor, Judge Richard Jones’ ruling dismissed most of Autodesk’s wide-ranging legal arguments as without standing.
If allowed to stand, the ruling effectively pulls the heart out of the license agreements that accompany most retail software products on the market today. You can be sure that not only Autodesk, but most software companies, will take action of some sort in response. It is unimaginable that Autodesk will not appeal this decision.
The case is not over; the court has ordered both sides to sit down and discuss whether the case should continue and settle Vernor’s claim that Autodesk engaged in unfair trade practices in violation of state law in either California (Autodesk’s home) or Washington state (Vernor’s home). Their report to the court is due June 27.
(Excerpt) Read more at aecnews.com ...
Sadly, see ProCD v. Zeidenberg.
I haven't check Autodesk's website, but most software publisher's that sell under shrinkwrap terms have them published on their website. If they don't, I've asked for them, explained that I wanted to read them before I bought the product, and they've always sent them to me via e-mail.
I have no idea.
Well, for one thing, the license agreement is not on the outside of the box, and I challenge anyone to return a software title where the package has been opened.
I think this is a good thing. Perhaps the software makers can come up with a real, enforceable license agreement. I want their intellectual property to be protected, but the EULAs in use today are comically unjust.
Wait until the RIAA tries to apply this same policy to CDs and DVD recordings.
But you can't "burn" a clone of a car.
No contract can violate the law. Any terms that do can be found unenforceable or void. A term in a Network Associates license that said they must approve any reviews of their software before publication was also deemed unenforceable for being contrary to law and the public interest (they used the license term to suppress unfavorable reviews of their products).
I agree. The foundation of Capitalism is the idea of a voluntary, enforceable contract. Without this concept, we'd be just like any other third-world rat hole. (Which is one reason I do not support a bailout of mortgage holders who entered into a loan contract, and now complain that it's not fair!)
I'm not sure you can buy a single copy of Autocad anymore. When they switched over to desktop products about 7 or 8 years ago they switched to a subscription service which includes upgrades every year.
They no longer issue a hardware key with the product, after you install you have to request one on-line to activate the program.
I think your ACAD 2000 may be the last year of the single use license but I could be wrong.
But what's enforceable depends on what's legal. Let's make a contract now that says in return for consideration you give your children to me in slavery. Any court would laugh at the very thought of enforcing that countract because slavery is illegal.
From what I’ve garnered from reading:
Mr. Verner purchased unopened boxes of AutoCad from an auction. I assume that the auction was one where a business was shutting down and selling assets, but that’s not clear.
Anyways, Mr. Verner then put the software boxes, unopened, on EBay.
This is what Autodesk was trying to prevent. The ultimate goal of Autodesk was to prevent resellers on sites such as EBay from selling discounted versions of their software. They want you to buy it from them, or a licensed reseller at the market price.
What it looks like the judge has done is say that as long as Mr. Verner did not open the boxes, it was his legal right to sell the software and now Mr. Verner can continue with his countersuit for harassment by Autodesk.
Well you left a little item out. Under your analogy you have to agree to all the terms before you buy/rent the car.
Don’t like the terms? Too bad because you already agreed to them and you can’t return because you put the key in the ignition.
Microsoft has had so-so luck enforcing their EULA. It won’t go any better for AutoDesk.
So does this ruling clear the way for a hypothetical situation such as this?
I hang around a software store and see a customer buy a retail version of KillerAp 1.0.
I buy this software for a very low price after the original owner has had time to install it and of course make a reliable "backup" of the whole package.
Now that I own the "original" can I sell it on eBay?
Sure you can.
The original owner is in violation of copyright though.
Sorry, but what RIAA and its ilk are fighting against is not the same thing.
RIAA is upset about the recording of CDs/DVDs into an electronic format and then distributing them.
They are NOT attempting to stop people on EBay from selling unopened CDs/DVDs. This is what Autodesk seems to be attempting to do in this case in preventing someone from reselling the original, unopened software.
Try to claim a replacement when the media goes bad. See what their argument is then.. :)
This case is not about piracy. What it's about is User X buying a three-year old copy of Autocad from User Y who does not need it any more.
Autodesk wants to give X no option other than ponying up for a new copy at full price. That sort of vendor power doesn't exist anywhere else in the marketplace and I see no reason why it should for software.
Anyone’s allowed to sell used, opened CDs and DVDs on eBay as well, as long as they are originals and not pirated copies. Software should be treated no differently.
Well, it was overturned. I should specify, shrink wrap contracts have never withstood appeal.
Borland Software used to use “Like A Book”.
You could re-sell it if the seller quit using it.
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