eBay Seller Sues Autodesk for $10 Million

Miasik.Net writes "A lawsuit has been filed in Federal Court (US District Court for the Western Washington District C07-1189 JLR) that alleges Autodesk, Inc maker of the industry standard AutoCAD software and their attorney Andrew S. Mackay have devised an illegal scheme to have used copies of their software removed from the eBay site using the Digital Millennium Copyright Act. Finally someone decided that non-transferable licenses must be stopped." While proving $10 million in damages might prove difficult, the reasoning behind the case is pretty sound.

Comments

Re:The question

[WaltBusterkeys]

So which one is applied by the modern court system? In criminal law one is innocent until proven guilty. In civil law (like this), the scales are even with just a feather on the side of "not liable" (since one can only really be "innocent" of a crime).

Re:California Bar Investigations

[debrain]

Furthermore, the plantiff lacks standing. In the state of California, to sue for fraud, party A must alledge that party B defrauded party A. If A claims that the money comes from C, then he has no standing to sue, even if his statements are correct. Vis-à-vis jus tertii ?

Re:California Bar Investigations

[spacefrog]

In the state of California

This is a federal suit. From TFA:

A lawsuit has been filed in Federal Court (US District Court for the Western Washington District C07-1189 JLR)

But this is AutoCAD

[Anonymous Coward]

I know that with my AutoCAD 2004 (at work), it phones home every time you start it up, with identifiable information such as your serial number. I saw it in my Snort logs. So if 2 people get it 'phoning home' with the same s/n but different IP's, obviously someone has copied something somewhere...

Re:IT's about time that some stands up for First-s

[Joe The Dragon]

It's not a copy protection feature and you can get to work on other adapters that are just about the same also there is tool out there that will try to reset it.

Vista is better with this and can fall back to generic driver to try to boot up.

And ghost was build to help you with roll out of alot of the same or (slightly different) hardware or for a easy restore and even then you may need to do a reboot or 2 for it to fully pick up the hardware.

When you have bigger changes that you need a new image just for that system.

ebay does this with TONS of companies

[Jafafa Hots]

eBay established what they call a VERO program. if you, as a manufacturer, don't want your items sold on eBay, then you register with their VERO program, and they will then take down any auction you demand taken down.

Ostensibly this is to prevent pirated goods (fashion items, Foakley sunglasses, etc.) from showing up, but you can buy a GENUINE designer handbag at Macy's, sell it on eBay, and the company will have your auction taken down despite your having every legal right to sell that GENUINE item.

This has nothing to do with law, and nothing to do with the DMCA... its simply eBay policy, part of their VERO program.

Re:IT's about time that some stands up for First-s

[Kalriath]

Similar problem with virtual machines. Running a virtual machine, you CAN just move an installation of Windows from hardware to hardware.

Microsoft's solution? Vista won't run under virtualization. FUD. Runs fine (though probably a tad slowly, but just turn Aero the fuck off and you'll be right) under virtualisation. And the license only says that you can't use the same license you used for the host in guest machines unless it's Ultimate or Enterprise edition.

There's plenty of real things about Vista to bitch about, so stop making shit up.

Re:why would they invoke DMCA?

[butlerm]

I imagine they invoked the DMCA because a superficial reading of the pertinent provisions would lead one to believe that DMCA take down notices are applicable to this kind of activity.

Unfortunately for Autodesk, that is pretty clearly not the case. The DMCA is about copyright infringement, not breach of contract, shrinkwrap or otherwise. In addition, Section 512 take down notices only apply to online material accessible through a service provider. No one's copyrights were being infringed here and the copyrighted material was not online. Quite the opposite. The First Sale Doctrine (codified in 17 USC 109) establishes that:

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.

Re:So, their attorney is an idiot or...

[hedwards]

The law passed in 1998 was designed to give intellectual property rights owners a way to have content removed from the internet that violates copyright law. I kind of liked the appropriateness of this miswritten sentence. Considering that the intent of the law is the first quote and not the second, I think that its safe to assume the real idiot is the person suing. I think they meant this:

The law passed in 1998 was designed to give intellectual property rights owners a way to have content that violates copyright law removed from the internet. Seems like somebody could use an editor.

Re:where to find used software?

[ScrewMaster]

Not only does it exist, but it even has lots of competition!

Re:The question

[Oriumpor]

Depends on the court, in the states:

Criminal: #2

Civil: #1 is closer than #2 but only by 2 percentage points.

In most civil trials the plaintiff only has to prove a preponderance of evidence. Which (kind of) equates to about 51% or greater possibility of the argument being true.

IANAL etc...

Re:$10 Million seems right to me...

[asuffield]

I see nothing wrong with the $10 million figure. Companies have used the DMCA to try to recover "damages" of ridiculous proportion in the past (RIAA as our most favorite). Why shouldn't the DMCA work for consumers in the same fashion? In which case, the $10 million figure seems just as "reasonable"

It's kind of a problem with the way these things are reported in the media. What happens is, the law gives limits on the penalty that can be applied to any unlawful action, and it is the responsibility of the plaintiff to research this. The plaintiff then has to provide the court with a detailed breakdown of all the things that they claim have been done, and the maximum penalty for each of them as applied to this specific case. The media then takes this list, adds up all the numbers, and says that the plaintiff is trying to get damages of that amount.

The reality is that judges almost never award the maximum financial penalty, they rarely rule in favour of the plaintiff on every single charge listed, and the defence is going to contest most of it and win on some of the points - any skilled prosecution lawyer throws in all the borderline items they can come up with, knowing that they won't get most of them, because they usually will get a few of them. For example, if there are four or five different rules which might apply, then the prosecution will list them all, and let the judge pick one and throw the rest out - there's nothing wrong with that, it's just how the legal system works. If you are beginning a lawsuit against somebody and asking for damages, then your lawyer will explain this to you and tell you that you are only going to get a small part of the maximum possible penalty, and give you some rough estimates of how much they would expect to get.

The media never reports stories by saying things like "the plaintiff claims maximum possible damages are $10m, and they expect to get about $500k", because that doesn't sound as impressive.

Re:Motorola does this too.

[Anonymous Coward]

Fuck, No!

Didn't you read the bit about getting labeled a terrorist, or possibly worse? Motorola is in bed with and supplies all the spooky three-letter agencies with their toys. The shitheads there made more-or-less direct hints they were working in conjunction with some agencies.

What I don't need are the feds crawling up my ass on some total bullshit charges they might make up! "We're from the Government. We're here to help you"... Yeah, right...

Autodesk sucks. Stear clear.

[Qbertino]

Autodesk sucks. That's a fact. For instance, the Autodesk Videoconverter is widely know as the buggiest software ever. Ever since they bought Alias I've been expecting Maya to go downhill. It isn't that they've really gained that much in tracktion since the takeover, which is a bad sign.

If you need a good 3D programm and Blender doesn't offer enough industry compliance I recommend Lightwave. Affordable, an insane amount of features, an impressive feature production track record and a high profile industry standard throughout the world. AFAICT it has the most widespread use in the industry. LW does come with a dongle, but at least Newtek (LWs producer) doesn't act like a bunch of dickheads. I bought a used LW licence from a guy on Ebay and they transferred it without a hassle and even did a cheap upgrade for me allthough I wasn't entitled.

Bottom line:
Blender and then Lightwave for all things Blender doesn't handle well (or not at all). And stay away from Autodesk.

At least he will know where to buy his v14GR4

[iwein]

found this in the original blogpost:

http://members.calbar.ca.gov/search/member_detail.aspx?x=197074

man, this guy must love me now :D

Legal Analysis

[karmatic]

This is a duplicate of my comment over there, since we can't very well expect /. readers to RTFA, can we?

A user commented that "It was decided that the process of loading software from media into the computer's RAM constituted making a copy of the software, therefore a license is required in order to run the software."

That was the original legal theory behind the EULA, however, that theory is fundamentally flawed, and no longer pertainent.

http://www.copyright.gov/title17/92chap1.html#117

Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

In other words, buying the software (Adobe vs. Softman - if it walks like a sale, it is a sale). Quoting Adobe vs, Softman -

It is well-settled that in determining whether a transaction is a sale, a lease, or a license, courts look to the economic realities of the exchange ...

(quoting Microsoft vs DAK) "Because we look to the economic realities of the agreement, the fact that the agreement labels itself a "license" and calls the payments "royalties," both terms that arguably imply periodic payment for the use rather than sale of technology, does not control our analysis." ...

The Court finds that the circumstances surrounding the transaction strongly suggests that the transaction is in fact a sale rather than a license. For example, the purchaser commonly obtains a single copy of the software, with documentation, for a single price, which the purchaser pays at the time of the transaction, and which constitutes the entire payment for the "license." The license runs for an indefinite term without provisions for renewal. In light of these indicia, many courts and commentators conclude that a "shrinkwrap license" transaction is a sale of goods rather than a license ...

Raymond Nimmer, The Law of Computer Technology 1.18[1] p. 1-103 (1992). The Court agrees that a single payment for a perpetual transfer of possession is, in reality, a sale of personal proper and therefore transfers ownership of that property, the copy of the software.

In other words, there's a good chance this case will be permitted to go forward - there's plenty of case law both sides can attempt to use.

Some interesting things.

[alejandronova]

From my research, I've found interesting things. First of all, AUTODESK'S EULA IS NOWHERE TO BE FOUND. The Autodesk page, supposedly publishing the EULA, ended with an EULA located on a non-working server. The only thing close to an actual Autocad or Maya EULA I found is here: http://www.evanyares.com/licensing/2005/12/13/autocad-2006-eula.html (it's a SHAME that this is the only way I can read the EULA of a supposedly serious software company... Is the EULA a secret? How can you claim I agree with the EULA if I can't even read it?)

Second, some terms are interesting.

2.1 License Grant. Autodesk grants You a non-sublicensable, non-exclusive, non-transferable, limited license to use copies of the Software in the jurisdiction in which you acquire the Software, in accordance with the applicable User Documentation, within the scope of the License Parameters. Autodesk's license grant is conditioned on Your continuous compliance with all license limitations and restrictions described in this Agreement. If You violate any of these limitations or restrictions, the license grant will automatically and immediately expire. The license descriptions in this Section 2 define the scope of rights that Autodesk grants to You. Any usage of the Software outside the scope of the applicable license grant constitutes an infringement of Autodesk's intellectual property rights as well as a material breach of this Agreement.

What kind of contract is this? It's a licence, of course. And why are giving this licence to operate in a specific COUNTRY? (the jurisdiction in which you acquire the Software) Does it mean that, if I travel with a laptop loaded with a legal copy of Autocad 2006 (the license for Autocad 2008 isn't available) from Chile to the States, I have to pay another CLP$ 2.000.000 to keep my legal status?

9.2. Choice of Law. This Agreement and any disputes arising out of or in connection with this Agreement shall be governed by California law without reference to conflict-of-laws principles and excluding the UN Convention on Contracts for the International Sale of Goods.

9.4. Severability. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of any other provision of this Agreement in any other jurisdiction.

That is, if your country doesn't have a sane conflict-of-law statute and doesn't forbid you transferring jurisdiction to California, you are essentially screwed.

9.1. No Assignment; Insolvency. This Agreement and any rights hereunder are non-assignable and any purported assignment shall be void. The Agreement and the licenses granted hereunder shall terminate without further notice or action by Autodesk if You become bankrupt or insolvent, make an arrangement with Your creditors or go into liquidation.

See what your legislation says about what we call "adhesive contracts" (contracts where one part writes the contract, and the other one, with a lower power to negotiate conditions, only signs. One kind of these "adhesive contracts" would be shrink-wrap contracts), and look carefully if THIS ONE IS FORBIDDEN. Why do they require your solvency? Is it relevant?

6.3 Educational Institutional and Student Versions. WORK PRODUCT AND OTHER DATA CREATED WITH EDUCATIONAL INSTITUTIONAL VERSIONS AND STUDENT VERSIONS OF THE SOFTWARE CONTAINS CERTAIN NOTICES AND LIMITA

re: Microsoft AND Motorola do it!

[King_TJ]

You can literally find HUNDREDS of stories of upset people who tried to list auctions on eBay for Microsoft operating system or application software they *never opened*, but MS had their lawyers demand a takedown from eBay based on the "VeRO" program.

(They argue that end-users are illegally trying to resell OEM software products that weren't intended for resale, etc. etc. But no matter how they'd like to spin it, it seems to me if you received a copy of an OS or Microsoft Office product with your new PC purchase, and then decided not to ever use it, you should be perfectly ok attempting to recoup some money by selling it to another person. I love how MS tried to "enforce" their B.S. by affixing the OS CD key stickers to the sides of the hardware itself. As if that suddenly makes you say "Oh yeah, this software really IS just part of the physical hardware and isn't possible to separate. My bad.")

Re:Eula vs. GPLx

[UncleFluffy]

It seems to me that this Eula transfer restriction is similar in theory to the GPLx restrictions on what may be done with the software after downloading.

This is a common misconception, so let me clarify.

Before you agree to the EULA, you have certain legal rights with regard to the software. After you agree to the EULA you have less rights than you did before (assuming the EULA is legally binding, of course), in this specific case the right of resale.

After agreeing to the GPL, you have more rights than you did before. Before GPL acceptance, copyright law denies you the right to distribute work which someone else holds the copyright to. After GPL acceptance, you now have a partial right to do so under certain circumstances.