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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.
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.
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.
.
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.
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"
It already exists and is called The Pirate Bay.
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!
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".
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.
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.
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).
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