There’s some buzz about our win this week against Autodesk and its attempt to keep entrepreneur Timothy Vernor from selling second-hand copies of its software on eBay. A federal judge refused to dismiss Vernor’s lawsuit against Autodesk and in doing so made it pretty clear that Vernor had a right to sell legally obtained, copyrighted material on eBay or anywhere else. The Technology Liberation Front called it an “Autodesk smackdown” and praised Judge Richard Jones’ decision as a victory for “common sense.” At the heart of Autodesk’s copyright argument was the claim that the license agreement included with copies of its AutoCad software prohibited resale. But the judge ruled that Vernor, who has picked up second-hand copies of AutoCad at garage sales, isn’t bound by that agreement. That’s a good thing for anyone who sells or buys stuff on eBay. And it’s great news for Vernor who is seeking legal relief from Autodesk, which has repeatedly registered copyright complaints with eBay about Vernor’s auctions.
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.
Cade Metz at the Channel Register runs down some of the background on the case and notes the potential impact for consumers:
Vernor’s lawyer views this as one very large win for online sellers. “eBay is the Wild West of copyright law,” Greg Beck, of Public Citizen, told us. “Using the DMCA, companies can assert these copyright claims even if they don’t have much basis in reality, getting sales terminated immediately. Your only recourse is to go to court, which is an expensive and time consuming process.
“This ruling is a protection for sellers who may not have the resources to go out and get a decision on their own.”
Charles Cooper with Cnet News talked to Vernor who told him he was “thrilled, though this didn’t really come as surprise. I just really had lot faith in our position.”
The 38-year-old, who has been an eBay reseller for the last eight years, said he was surprised when eBay initially shut him down. “I really couldn’t believe it. There was always the chance that they misunderstood and thought it was a pirated copy. I basically told (the Autodesk attorney) that I didn’t believe it was a violation and would continue to sell the item, and then they threatened further action.”
If you want a breakdown of the “first sale doctrine,” which the judge cited in ruling against Autodesk’s motion to dismiss, go to renowned copyright expert William Patry’s blog.
And finally, Corynne McSherry at the Electronic Frontier Foundation makes this observation about Public Citizen’s win:
Without the “first sale” doctrine, libraries would be illegal, as would used bookstores, used record stores, video rental shops, CD-swapping communities and so on. If those books, records, videos etc. were merely licensed, the seller could simply refuse to give their customers permission to re-sell the material they bought, or put other onerous restrictions on resale. That way, they could force consumers to always buy new software, even if they would prefer to buy an older, possibly less expensive, version.