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

So, their attorney is an idiot or...

[The Living Fractal]

The attorney is either an idiot and didn't know this was illegal, or it's simply not illegal. Sure, unethical, maybe I could see that. But I don't understand why eBay is obligated by law to have auctions on their site which they don't want -- no matter what the reason they don't want the auctions. And.. 10 million bucks? Good luck.

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

[allthingscode]

The suit isn't against eBay. No, eBay isn't required to carry anything they don't want to, but Autodesk is requiring them to pull the software because of a license requirement that is probably illegal.

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

[Talez]

They'll be asking for 10 million in punitive damages.

God I'm just an armchair idiot and I can see the logic in it. If they sue for $4K or even $10K for being pains in the asses then Autodesk will just write it off as a business expense, change the EULA and give it another shot. On the other hand if they get bit on the ass with a $10 million judgement they'll think twice before pulling a stupid stunt like that again.

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

[aevans]

You'd be surprised how well reasonable demands works, when the other side doesn't get entrenched and reactionary to obviously rediculous demands.

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

[orclevegam]

Assuming you're both right... Isn't it great when a system just works?

Biggest problem with a Union is it effectively introduces a third party into the mix with its own goals and motives. There is a long tradition of employers screwing over employees, the employees forming a union, and then the union screwing over the employer and the employees. I would have to go look it up to give you specific names, but I do know there have been several instances where unions have caused strikes to drag on to the point where companies have gone out of business because even though the employer and employees had come up with a compromise they both agreed on, the union wasn't willing to settle for it.

California Bar Investigations

[Harmonious Botch]

From TFA:

Autodesk's attorney Andrew S. Mackay is currently under investigation (# 07-24456) by the California State Bar Association for his actions in this matter. Strictly speaking, that sentence is true. But here in California, all complaints about a lawyer are investigated. There is no screening process. So you can alledge that a lawyer has kidnapped Elvis and locked him up in his basement along with a bunch of alien corpses stolen from Roswell and the bar association will open an investigation.

A far more relevant statement would have been:

The plantiff has filed a complaint about Mackay with the California State Bar Association for his actions in this matter. The merits of the complaint are unknown.

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.

Re:California Bar Investigations

[Anonymous Coward]

Vis-à-vis jus tertii ?

First they came for the Communists, but I was not allowed to speak out because I was not a Communist and my rights were not being infringed.
Then they came for the Socialists, but I was not allowed to speak out because I was not a Socialist and my rights were not being infringed.
Then they came for the trade unionists, but I was not allowed to speak out because I was not a trade unionist and my rights were not being infringed.
Then they came for the Jews, but I was not allowed to speak out because I was not a Jew and my rights were not being infringed.
Then they came for me, and I was not allowed to speak out because my rights had been infringed.

This is the way America dies, one bit at a time, its saviors bound and strangled by their own arcane rules.

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

[Joe The Dragon]

IT's about time that some stands up for the First-sale doctrine. Now we need to get the right to move windows from system to system or owner to owner.

Re:The question

[sodul]

1) Does the seller have the "burden of proof" to prove that he uninstalled his copy and is not violating his license or

Guilty until proven innocent?

2) Is the seller to be given the "benefit of the doubt" and assumed to have uninstalled his copy, unless information is found to indicate otherwise?

Innocent until proven guilty.

So which one is applied by the modern court system?

Motorola does this too.

[Anonymous Coward]

I had an auction of mine canceled by Motorola. I was selling some radio cryptography devices that are not classified or secret in any way (they are used by security companies, etc.)

Motorola had their legal dogs tell eBay to cancel my auctions because they violated their "VeRO" program policies. The "VeRO" program is for people violating someone's IP rights or the DMCA. They would have a legitimate claim if I was selling knockoff items or bootleg copies of their software which is what the program is for, so the manufacturers or IP holders can ask eBay to take down their auctions.

Well, the asshats at Motorola are sour on the fact that their stuff is getting sold for cheap on the 'bay, so they are using the IP/DMCA shit as a front to have the eBay folks try to kill the after-market. When I investigated why they did this, of course they quoted to me all kinds of "law enforcement only" bullshit, and even invoked the "T" word (yes, TERRORIST!!) - total bullshit! Naturally, not wanting to get hauled away and locked up in some foreign jail or GitMo, I didn't make waves about them canning the auction, but I really thought that sucked extra hard, hiding behind false claims of IP to prevent an after-market sale.

Posting anonymously for obvious reasons...

$10 Million seems right to me...

[RobertM1968]

While proving $10 million in damages might prove difficult, the reasoning behind the case is pretty sound

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"

I hope the guy wins all $10 million... perhaps the companies who lobbied for the ridiculous penalties that got included in the DMCA will think the next time they lobby for such laws.

Software should be a valuable asset

[ciscoguy01]

Software, especially expensive software is a valuable asset.

I am constantly amazed that so many people put up with software companies wanting to sell you their software for lots of money and then you can't do anything with it when you don't want/need it anymore. What the heck are you supposed to do, buy an extra plot at the cemetary and when you die they'l bury it there next to you?

Imagine if it were that way with your old dishwasher, or your car. "You can get a new car, but you have to keep the old one out back. You can't sell it, ever".

Outrageous.

When people put their foot down and demand ownership of expensive items, or else if you don't own it you should be paying dramatically less for it, this will all change. I'd offer Autodesk $19 for their software, if I don't own it. It can't be worth much more than that. You don't own it, remember?

I heard a story about a company that was bought out by another company, and one of their software providers wanted them to buy the software again. Same desks, chairs, computers, people, building, and software. But the software, that couldn't be "sold".

Outrageous. Any expensive asset should be just that, an asset.

Re:Software should be a valuable asset

[ZoneGray]

Well, I'm suspicious of the idea of treating intellectual property the same way you'd treat physical property. That sort of thinking is behind most of the problems with IP law.

But instead of Congress trying to sell consumers on schemes like net neutrality, perhaps they could pass a few laws that would, y'know, actually make the marketplace work a little better:

1 - If you can subscribe to something over the Internet, you have have to be able to cancel over the Internet. We'll call it the "Able tO canceL" act, or AOL act for short.

2 - Make software vendors print the license agreement on the outside of the box, or make it available on the web site as BEFORE purchase.

3 - Better yet, publish a few "standard" commercial licenses with various terms, and allow vendors to just specify, say, "US Type 7 Consumer License," so you wouldn't have to read each one. And vendors wouldn't have to hire a lawyer before they could sell something. Too good an idea to ever be enacted, unfortunately.

Re:The Enemy Within: Barak Obama

[jmorris42]

> This is the "dude" that some people want to be the next President of the United States.

No, the column quoted above by the troll is by Dr. Walter Williams not Sen Obama. Obama would never make that much sense. :)

> ALSO, keep in mind that when he was sworn into office -- he DID NOT use the Holy Bible, but instead the Koran

Again, you are so wrong you are a discredit to the Conservative side. You are confusing Senator Obama with Representitive Keith Ellison who did indeed swear his Oath of Office on a Koran. However since Rep. Ellison is openly Muslim this would be expected. Sen. Obama is a member of a bigoted African nationalist fringe church that looks for all the world like a clone of the Nation of Islam, but it IS nominally Christian, not Islamic.

Re:But this is AutoCAD

[pipingguy]

Obviously, the validation software looks for hardware configurations, dontcha think? These days most CAD in mid/large-sized places is run over a LAN with a limited number of licenses on the server; sometimes legitimate users can't run the software because too many people are already signed-on. This gives the software makers a LOT of control. Don't even get me started on the notion of who owns engineering data when it comes to proprietary CAD file formats...

Re:ebay does this with TONS of companies

[TubeSteak]

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. AFAIK, you don't have a right to sell anything on eBay...
Genuine or not.

Maybe that's why the guy in TFA is suing AutoDesk and not eBay.

Non-transferrable? My ass.

[solios]

An ex coworker of mien made a HUGE stink when he read the 3dsMAX (also an Autodesk product) EULA, noticing that the EULA allowed the user to use that license of max on not just THAT MACHINE but THAT MACHINE CONFIGURATION. Technically, according to the EULA, of you so much as upgraded the video card it was a new box and as such warranted a new licesne.

In professional circles, Autodesk is Big F*cking Money. Meaning you pay to play, or you don't play, at all. They're vastly worse than Adobe in that respect, though Adobe is definitely taking cues.

In the context of the license as my coworker understood it, you were "licensed" for one seat on defined hardware. In MY opinion, if you sell that hardware (and the software), you sell that license with it. Since Autodesk - on paper- won't f*cking LET YOU transfer that license to new hardware - even if it's the same box with a new vidcard - WHY are they shitting on licensed users for selling off kit with a software license they can't - technically, legally - transfer?

Forget google, forget Adobe, forget Microsoft - Autodesk is the real Software Evil.

The legal experts on Slashdot...

[caitsith01]

I love how everyone here is a freaking legal expert. People make the most sweeping judgments about complex legal issues based on a pejorative three sentence summary.

For example, from the main post:

While proving $10 million in damages might prove difficult, the reasoning behind the case is pretty sound

Hmm, yes. And the legal basis as to why the reasoning is 'sound' is...?

I'm not saying this is a baseless suit. But it's funny how everyone around here (99% computer/tech geeks of some flavour or other) is able to deduce why it's 'plainly' legally correct or incorrect to do whatever suits the common agenda here (free IP good; big companies bad; little guy good; etc etc etc).

IAAL. Newsflash: legal work is hard. Lawyers get paid a lot partly because legal issues are often very complex and challenging. You cannot determine whether something is 'sound' or not based on 4 minutes of absent-minded evaluation.

Re:The legal experts on Slashdot...

[bzipitidoo]

This smacks of the sort of "you can't explain it, therefore God did it" arguments that Intelligent Design proponents use.

So, most of us are not lawyers. So what? We still have a pretty good sense of what is right and wrong, and knowledge of the basics and traditions. We're not stupid. Assuming the summary is accurate (not always safe to do, I know, but I trust some will be quick to point out inaccuracies) we can easily tell that Autodesk is in the wrong. And if the law says otherwise, then the law is wrong too. We have no problem with making changes to laws-- they weren't created perfect. The law is our servant, not our master. And, as we also know the average EULA isn't worth the paper it's written on, a simple quick statistical thought of "> 50% of EULAs are meaningless therefore odds are Autodesk's is too" is easy enough. We also know that too many in the profession have engaged in obfuscation, making contracts and law far longer and more complicated than necessary, in order to bury objectionable stuff in the fine print. In the 1980's, a contract for purchase of a house was 3 pages. Today, such a contract is more like 30 pages, and most of that is bull that didn't need to be spelled out. I'm talking bloat like "buyer agrees not to use the house for illegal purposes" followed by a long list of illegal purposes, and "buyer agrees to comply with all regulations and city ordinances" and a long list of same, down to totally petty stuff like "agrees to mow lawn regularly", and questionable stuff like "buyer agrees not to reveal any details of the negotiations such as price paid". You'll have to do better than that old "it's too complicated to explain" garbage if you want to convince anyone around here. The law is already in bad enough shape and repute thanks to trash like that. But there are good arguments buried in law and precedent. Try us. Trot some out.

Re:The legal experts on Slashdot...

[Hatta]

He didn't say legally sound. The reasoning behind this case is sound, anyone can see that instantly. We all have a sense of right and wrong. If the legal system differs from that by too much, it's broken.

Re:The legal experts on Slashdot...

[sjames]

I see your point, but keep in mind that the law belongs to the people If it cannot be understood by a person of reasonable intelligence then it is intrinsically wrong.

As to why it sounds reasonable, see first sale doctrine. The case law and legal opinions on the applicability to software are conflicting. Some (such as Autodesk) claim that they licenced a particular user to use the product. Others say that since it looks like a sale and acts like a sale, it IS a sale in spite of an after the fact EULA to the contrary.

To me personally, it looks like software vendors want to not only have things both ways but all ways. When I want to copy the media for legitimate archival purposes they want treat it like a sale of a particular CDROM. When I want to resell it, they want to call it a license to a particular person. When I want to move it to a new computer, or use it on more than one computer (but only one at a time) they want to tie the licence to a particular machine. That is, until I want to sell the computer and all of the software on it.

It looks like a duck, it quacks like a duck, and it swims like a duck. The software vendors would have me believe it's a zebra. Unless, of course, it is convieniant for me that it's a zebra, in that case they say it's a blue footed booby. Could it be that the software vendors are weasels?

Keep modding him up

[Anonymous Coward]

The law may be illogical, but it is MEANT to be logical. It is sold to the populace as logical and reasonable. That it is drafted in complex ways is partly because of the adversarial system and partly because, for the solicitors, there's no downside to it, they get paid whether they win or lose.

The soundness of the argument is one you can take to "the man on the street" (which is why we have a jury of peers):

I bought Autodesk Software. Paid for. Signed, sealed, delivered. It's mine.

I no longer want to use this software, so I'm selling it.

Autodesk have tried to stop me selling it.

Right or wrong?

Wrong.

Simple. Sound. The *law* may say "ah yes, but the law here says..." and the response is "that was written to stop someone bootlegging millions of copies and selling them retail. Such a criminal may be able to get away with just 'selling bootleg materials' so you made a law making penalties easier to apply so that you could nail them. It wasn't written with someone selling their purchased copy no longer wanted".

Laws are argued for with "we need it to stop _this_" but never written with "this law is to stop _this_". And that's the illogical and (to the man on the street illegal) bit about the insane laws we have on books.

See how the DMCA was abused to stop someone making a garage door opener (try to explain why the DMCA would be written for this. Can't, can you. It was still used as an argument, though).

Re:New business model

[Anonymous Coward]

If you sell the software, why do you still need upgrades and support? Shouldn't the rights to those be transferred along with the software? All you need for tech support is a license #, transferred along with the software.

Re:If he wins I'll put my Architecture 2008 up

[OrangeTide]

You count it as an asset because you don't have to buy the software again to continue operating your business, at least in the short term. There are other things that are assets that have no real value for liquidation.

A 15ft metal sculpture of the company logo that takes up the entire lobby is an asset, but it's probably only worth the scrap metals. I'm sure you can think of other examples of things that are worth money on a balance sheet, but worth a fraction or even zero in reality.

Re:New business model

[Anonymous Coward]

Pretend you are AutoDesk. Someone contacts you and claims they now own AutoCAD purchased from someone else. And then someone else claims they own the same software. AutoDesk isn't going to waste their time trying to contact the original buyer trying to figure out who now owns what.

Oh the good old days when software used hardware locks. You didn't need to contact the company to move the software to another machine once the hardware lock was licensed. No, I don't work for AutoDesk or ever will.