Federal Court Slaps Down Autodesk Arguments, Favors eBay Seller

AECNews ^ | May 21, 2008 | staff

[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.

[rabscuttle385]

No contract can violate the law. Any terms that do can be found unenforceable or void.

The Episcopal Church and other hierarchical denominations disagree. After all, look what they are doing to breakaway Episcopal parishes in Virginia, claiming that the Dennis Canon ("you can leave but your property belongs to us, even if it's not titled to us") should supersede state law ("in a schism, members of individual churches retain ownership of property").

[rabscuttle385]

They want you to buy it from them, or a licensed reseller at the market price.

Not at the market price but at their retail price.

[Mr. Quarterpanel]

Thank you for the clarification.

Given the updated information, I still fail to see where Autodesk has a case. Unopened copies actually strengthens his argument.

It would have been infinitely cheaper for Autodesk to buy the copies from him, instead of suing him.

It appears that Autodesk may have inadvertently opened a can of worms here.

[montag813]

Autodesk does not explain how a nontransferable license can bind subsequent transferees

Huh? How can there be a transferee if transfer are not...never mind.

[montag813]

It’s like a car dealership telling you, “OK, you bought this car from us, and you have to live with it, you cannot sell it to anyone else or you are going to be in violation of the law.” It’s pure crap, and this is a common sense decision.

The difference is, you can't make a copy of your Prius and then sell the cloned one. You can easily copy software and then resell it.

[Walmartian]

You can still buy single versions without the subscription. I have Autocad LT 2008 and Viz 2008 with no subscription. I went from Autocad 14 to Autocad LT 2008 and spent a whole day just turning crap off.

[messierhunter]

I shouldn’t have to go hunting for a contract before I step in it like a bear trap. It shouldn’t be possible to “accidently” agree to a contract you’ve never been shown. On top of that, the whole non-transferable license is a scam. Just a way to do an end-run around the “first sale” doctrine in order to eliminate the second-hand market. In other words, it’s a way to artifically deflate the supply of a product.

[messierhunter]

"The difference is, you can't make a copy of your Prius and then sell the cloned one. You can easily copy software and then resell it."

That's a separate issue; the burden of proof is on the company to prove that happened. The seller is not guilty until proven innocent of piracy.

[holden]

One argument is that these software license agreements are palming off the long-standing purchase paradigm to mislead the customer into thinking he's bought something when he's really only getting the lease.

Think what such a stellar concept could do in the housing market! Actually, that's already being employed all over the place with non-deeded timeshares. Too many people get old and feeble before they figure out how they've been scammed.

Caveat Emptor!

HF

[voteNRA]

You can still buy single versions without the subscription.

Thanks for correcting me, I just pulled out a recent invoice and it looks like I can buy the full version for >$3,000 and that the yearly subscription upgrades are around $500.

Thanks for correcting me and good luck with that jump (more of a leap) from 14 to 2008!

[lesser_satan]

Thanks.

[enraged]

I don’t know about single installs but, if I copy my dwgs onto my hard drive, unplug my lap top from the network and try to use ACAD (+ third party software) at home, without first ‘checking out’ a liscence it will not allow me to open any dwgs. Caught me a few times, had to drive all the friggin’ way back to the office and do it all over again.

[AmericaUnited]

shrink wrap licensing should not be allow

Are bogus because they disclose the terms of the binding contract AFTER the sale is consumated.

[free_for_now]

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!)

Respectfully, one of the key components of a successful capitalist society is sound money. The way our Treasury Dept. has caused the dollar to gyrate makes any kind of long-term contract a huge gamble. These problems we are seeing are not because of particularly reckless or foolish behaviour on the part of the borrowers or the lenders, but terrible monetary policy and the market's reaction to impending fiscal policy (the Obama-Pelosi years don't look to be all that good for capitalism). Long-term contracts are also important to the smooth operation of our capitalist society (imagine the US without any mortgages). Anyhow, you are getting a bailout whether you like it or not. We are inflating away the problem and spreading the pain to anyone holding dollars. Sorry about the OT rant.

[vpintheak]

Is the agreement Constitutional? Can a retailer tell you what you can do with something you purchased something? In any other industry NO WAY! This guy trying to sell the software, not alter anything.

[PAR35]

Lots of lawyers are going to be grinding their teeth over this one in the weeks to come.

For lawyers, it isn't a problem, it's an opportunity.

[antonia]

 

the Timothy S. Vernor story:

Wednesday, September 12, 2007
The Man Who Dared to Sell AutoCAD R14 on eBay
For seven years a soft-spoken Seattle resident by the name of Timothy S. Vernor made a decent living selling stuff on eBay. Mostly he sold vintage comic books, but also whatever else he could get cheap and pass along to a waiting market. continued

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According to Autodesk's EULA (End Users License Agreement) AutoCAD is nontransferable and when you "purchase" AutoCAD you are not actually purchasing the software, but a "license" to use the software. This EULA reads "by opening the sealed software packet(s), you agree to be bound by the terms and conditions of this license agreement". There is a major problem here; the EULA is inside of the packaging, therefore the end user has no idea of this "agreement" until they've opened the software.

 

Tim Vernor sent us an update on his case. It appears that all the attention he has received has helped. An attorney for Public Citizen Litigation Group has agreed to represent him against Autodesk. Go to their website, www.citizen.org, to get updates on the case. You can sign up for email updates as well. The Litigation Group's website can be found here.

Federal Judge Rules Against Anti-Consumer Copyright Claim
Public Citizen scored an important victory this week for anyone who buys or sells items on Web sites such as eBay. In refusing to dismiss a lawsuit filed by Timothy Vernor, a Public Citizen client, a judge made it clear that people have the right to resell legally obtained, copyrighted material. The decision helps protects consumers from abusive tactics and promotes a healthy, competitive market for second-hand goods.continued

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Because Public Citizen does not accept funds from corporations, professional associations or government agencies, we can remain independent and follow the truth wherever it may lead. But that means we depend on the generosity of concerned citizens like you for the resources to fight on behalf of the public interest. If you would like to help us in our fight, click here.

[lesser_satan]

What version do you have?

[weegee]

You need to check the 1990s when Clint Black and others got Sony to strongarm stores to stop selling used CDs.

Put a lyrics graphic on the disc and it IS software. Enjoy your license

There is no resale allowed of digital downloads either. The future is here now.

[weegee]

You are prevented from selling some software on ebay even if it is SEALED if you are not a licensed distributor (say you got it as a gift or in a software bundle).