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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.
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.
I do not respond to cowards. Especially anonymous ones.
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.
1) Buy software from eBay
2) Copy onto hard drive
3) Re-sell on eBay
4) Profit!
Easy enough for me!
...lawyers bother taking on lawsuits under $10 million these days - they can't make enough money on the small claims.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
Which is it:
1) Does the seller have the "burden of proof" to prove that he uninstalled his copy and is not violating his license or
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?
note: I am probably using legal terms like "burden of proof" incorrectly. but you get my question.
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.
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...
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.
StarTrekPhase2 - The Five Year Mission Continues!
By reading this post you are agreeing that any posts you make are property of CowboyNeal, along with any devices used in manufacture and transfer of said posts. This includes your keyboard, computer, and that whole series of tubes called the internet.
I apologize that this EULA isn't 50 pages long, and can be understood by a human being, but I'm not a real lawyer.
You know, that's a battle of Windows' addon software too.
I think one of the main features of Norton Ghost that keeps it selling to IT departments is that it can copy Windows so that it will run on (slightly different) hardware. Windows has a copy protection feature that ties an installation to a specific hard drive adapter. Ghost overwrites that info with the info of the machine that restores the backup.
Now this means that you can't restore from backup on one machine and then plug that drive into another machine, even if the second machine was the original.
You will find this information nowhere in Ghost's documentation. They don't risk mentioning that they're breaking some of Window's copy protection.
Microsoft's solution? Vista comes with backup software. They're hoping you won't buy Ghost.
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.
I've always thought this was a bit fishy...if I call and ask for an AD product, the vendor takes my CC# and sends me a box. Why should I be prohibited from reselling it if I don't want it. Hell, even if I install it and then switch to Bentley, why can't I then sell my unused SW? Supposedly, the only way to sell your license in AD's good graces is to sell your entire business (or your immortal soul, if you personally registered it, I suppose).
Now, AutoCAD does have the potential seller by the short hairs, since they can deny any future upgrade pricing, but since I know lots of shops who upgrade every 4-5 years, and AD phases out any upgrade discount by then (you can pay $800/yr for maintenance, or $800 x n years since your last version to upgrade; sweet, huh?).
I just know that at this point, I've got a $4000 piece of software in which I only use $800 worth of functionality. How do I know? Because the rest of my licenses are ACAD LT, and they work just as well for what we do as the Architecture.
Is it just my observation, or are there way too many stupid people in the world?
I believe that if someone wants to sell their copy of whatever; music, movie, software, etc.; and they don't have backup copy somewhere the other person should inherit all of the rights and privileges associated that music, movie, software.
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.
.
I've been wondering where to find used recent versions of software. Anyone know of an auction site that caters to this niche? Maybe such a site needs to be created... Biz opportunity!
A witty saying proves you are wittier than the next guy.
A friend of mine who I work with who has a legit version of AutoCAD, but he never installed it and downloads the cracked versions from P2P or Bittorrent (the ones that also doesn't require the dongle, even though he has a legit one.) While it seems obvious that many people won't pay for this software simply because it is very expensive, you can't help but think that practices like this, that don't allow you to resell you software that you don't use anymore, only contribute to people pirating software. I mean, what if he got it for a company he worked for and then the company tanked a few months later? It's a completely unrealistic expectation. Unfortunately, we have another program requiring dongle keys that is even more expensive that isn't widespread enough for hackers to worry about, so we have to bother calling the company every 6 months to get our extra keys reactivated, as well as being locked into the software, because it was too expensive to abandon, but the learning curve is too high on this type of designing software to switch to another without a major drop in productivity and a huge initial investment.
"Thank you for using Stop-n-Drop, America's favorite suicide booth since 2008"
lawyers bother taking on lawsuits under $10 million these days - they can't make enough money
It's sad that justice is only available to people with millions of dollars to burn. Autodesk is sure to run the costs of this trial into multiples of that amount and burn years of many people's career that could be spent doing useful things. You and I pay for all of that waste whenever we do business with a firm that has paid for drafting that uses Autodesk - that is every day.
I could rant on about how Autodesk has used software patents and other anti-competitive practices to keep out competitors and artificially drive up the cost of CAD to such levels that there's virtually no savings from the move to commodity hardware, but that's a different set of rip offs. It all comes back to legal corruption though.
DMCA, Hollings, Palladium. What might have sounded like paranoia is now common sense.
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.
Or installed it on a laptop that roams.
Pain lasts, kid. Its how you know you're alive. Sometimes I think this growing up thing is just pain management-TheMaxx
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.
This space available.
Before everyone and their mother found out about the Internet, Ebay was soo awesome.. You could buy pot, a gun, and a kidney.. And you could give feedback to whoever you wanted whether or not they even made a sale with you.. You had maybe a 50% chance of actually getting what you paid for.. but then again, you had about 50% chance of actually attempting to pay them.
The Internet used to be a frontier, man.. Now I gotta grow my pot.
--- We need more Ron Paul!
In the real world, outside of software, there are plenty of non-transferable licenses. Buy a "lifetime" membership at your local gym, and then try selling it someone else - it isn't allowed since it is stated in the contract at the time of sale. Same thing with Autodesk's software. If someone doesn't like Autodesk's licensing terms they are free not to buy Autodesk software.
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.
For a site about things like basic rights, Slashdot users sure do like to censor "dissent".
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:
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...
What do you mean "belong to the PC"? Just wondering - PCs are not 'legal entities', and so cannot own anything. Legal entities are things like people, corporations.
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.
...and wins big. The same thing happened to me. I tried to sell a legitimate, legal, uncopied, in-the-box copy of ACAD2000 and had the sale pulled by Ebay. Ebay threatened to pull my account if I ever tried listing AutoDesk software for sale again. I thought about auctioning a drafting pencil and giving away a copy of ACAD2000, but never did it.
Chaos maximizes locally around me.
For example, from the main post:
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.
Read Pynchon.
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).
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.
We suffer more in our imagination than in reality. - Seneca
found this in the original blogpost:
:D
http://members.calbar.ca.gov/search/member_detail.aspx?x=197074
man, this guy must love me now
Show a man some news, distract him for an hour. Show a man some mod points, distract him for the rest of his life.
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.
In other words, buying the software (Adobe vs. Softman - if it walks like a sale, it is a sale). Quoting Adobe vs, Softman -
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.
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
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.")
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.
What would Lemmy do?
with regards to my previous statement:
what I meant to also say is that if eBay takes down an item *under the premise of VeRO* and eBay is then shown the item does not violate their VeRO policy, then the seller should have the right to have it reposted without having to pay any extra fees.
eBay, as a private internet auction house, is free to refuse to sell whatever they like, but if they engage in a pattern of discriminatory refusals to post certain auctions (e.g. because certain big companies complain about individuals who happen to be re-selling their stuff), then eBay might have some explaining to do.
uR iGn0ranc3, Their Power