Watchdog To Represent eBay Seller In Autodesk Suit

New10k writes "Following up on a recent Slashdot discussion, nonprofit consumer advocacy group Public Citizen has agreed to provide an attorney to eBay seller Timothy S. Vernor, who is suing Autodesk in federal court over misuse of the DMCA to stifle competition. The advocacy group has identified elements of the Vernor case as some of its key litigation priorities for 2007. The article includes an interview with Vernor's new lawyer, Greg Beck, who was a software engineer for Microsoft before going to law school."

Comments

Sorry for OT

[Opportunist]

But ...

"The article includes an interview with Vernor's new lawyer, Greg Beck, who was a software engineer for Microsoft before going to law school."

I don't know what to think of that. Does working for MS tell you that there's more money and better job security in the IT field in the legal department than in development?

Re:Sorry for OT

[Aladrin]

Why would you make that assumption from a single person's decision? He obviously felt he would like being a lawyer better for whatever reason. You don't know the reason, and don't have any clue what it could be.

People change jobs and careers all the time and to paint everyone with the same brush because of 1 person's decision is lunacy.

Re:Sorry for OT

[geminidomino]

Why would you make that assumption from a single person's decision? He obviously felt he would like being a lawyer better for whatever reason. You don't know the reason, and don't have any clue what it could be. Well, we know it wasn't for ethical reasons...

Autodesk? Suit?

[pimpimpim]

I've never heard of this case before, running through the article I guess the problem is Autodesk doesn't want him to sell used software packages of their software AutoCAD.

The bastards, I would say! It's like trying to prevent selling used music CDs or used books. How long will we have to cope with companies 'selling' us stuff when they mean 'lending'. Either they let us SIGN a contract BEFORE we buy explaining how they want to deliver their product (lend it, lease it), or if they don't do that, we can consider it BOUGHT and our property. You can not in retrospect claim someone didn't buy (gain ownership) to the product if you didn't make that completely clear beforehand. They ask enough money for the product to make it sure look like you have the right to own it and do what you want with it.

Re:Autodesk? Suit?

[91degrees]

Quite true, and everyone involved in the transaction except Autodesk is pretty certain it's a sale. I bet even Autodesk do at some point.

Customer to shop: "I'd like to buy a copy of AutoCAD" Shop to Customer: "Sure. There's your copy. That will be $799" Shop to Autodesk: "We'd like to buy another 20 copies of AutoCAD" Bet you Autodesk don't say "Well we can only sell you a license" at this point. It certainly doesn't clearly say "License to use AutoCAD" on the box.

Re:Autodesk? Suit?

[speaker of the truth]

Not just once, you could start your own CD printing factory and sell million of copies. This isn't how copyright law works. You can sell a copyrighted piece of work that you bought (such as a book) but only the original copy you originally bought (i.e. You can't start your own printing press and sell the book).

Re:Autodesk? Suit?

[pimpimpim]

You only get to see the contract AFTER buying. Someone should test how legal this can be. There are things I won't own but pay for it, say my DSL connection. I do get to read and are asked to read the contract before I buy it. I am ok with that because I can be fully aware of the conditions before I pay for it (I actually do read this stuff to be sure when and how I can get rid of the contract in the case I want to switch). But if I buy a watch or a bread or anything that didn't ask me to sign a contract before buying it, I would surely not expect or comply to any "suprise!" contract that is in the package after opening it.

Let them sell personal licenses straight up front then! If I want to use matlab, I contact the sales representative and he will tell me the price for one year of Matlab use, it would be fully clear I don't own the software. Even then it might be legal to sell, say a remaining license period. Why not, I can also transfer my DSL contract to someone else when I move.

Re:Autodesk? Suit?

[pimpimpim]

Yes, I just checked the autocad shop and nowhere it mentions that you will buy a license. Instead you spend about 4000 dollars on something for which it mentions "Reasons to Buy" (so not Reasons to license). Nowhere on the page it gives us any buying conditions. (or did I miss them?)

Additionally they have a subscription service with a different pricing scheme. Autocad there is about 400 dollar I guess, it doesn't mention on what timespan, a year probably.

All this data on their own website points in one direction: for 4000 dollars you buy the software package after which you own that copy of the software package, to do what you want with it. For a subscription price you can buy a subscription where you don't own the software but it makes sure that during your subscription they 'lend' you the most recent software.

Re:Autodesk? Suit?

[Tim C]

If you "owned" a piece of software, you could resell it. Not just once, you could start your own CD printing factory and sell million of copies.

That's what ownership means.

No, that's what being the copyright holder means. Owning a box, manual and CD/DVD means that I can sell that on to anyone I choose and no-one can stop me.

Or would you equally argue that the shops that carry software don't own it? Somehow I don't think you would get very far using that as a defence if you tried walking out with it without paying.

Re:Autodesk? Suit?

[Sique]

For some reason you seem to believe that you can't resell a license. Why not?
And for some reason you seem to believe that you can't sell some property that comes with a license.
What happens if the shop that bought AutoCAD burns down? What do they claim from their insurance: 1 copy of AutoCAD? Or do they tell Autodesk: "Hey, your CD-Box which we happened to license from you just burnt down, please do your own claim!"

Re:Autodesk? Suit?

[joeyblades]

Actually, under "Licensing, Registration, and Activation", Autodesk makes it very clear that you are not purchasing software, you are purchasing a license to use software. They also make it clear that this license is not universally transferable.

The licensing of software is not unusual for very expensive software, especially when external IP is involved. If Autodesk licenses certain IP from external sources, they are obligated to track it's use explicitly through their own licensing policies.

One might make the argument that Autodesk does not go out of it's way to make it clear to the casual shopper that they are not selling software, merely licensing software. However, if Autodesk is guilty of this, so is every other developer of licensed software. Also, AutoCAD isn't exactly an impulse item you pick up in the checkout line at Frys, next to the peanuts and the $4 laser pointers. If you're planning on plopping down $4000 on a software product, you'd better do a little research. And if you find that same product on eBay for $40, you should be very, very suspicious that something is not on the up-and-up.

Re:Autodesk? Suit?

[mrchaotica]

Hint: There is no such thing as 'legal' second-hand Autodesk software. They have the most draconian license agreement in existence.

Hint #2: There is such a thing as legal second-hand Autodesk software, because their draconian license agreement is bunk, as this lawsuit aims to prove.

Re:Autodesk? Suit?

[CCTalbert]

Actually, the pricing scheme is a bit more evil than what you just described....

In "the good old days" (I've worked with AutoCAD since about '86) you bought the product, and had support for it; when a new release came out you could upgrade for the difference in price- for example if Rel.9 was $1400, and Rel.10 was $1550, your upgrade cost was $150. If you skipped a couple releases no problem, you paid the total difference. If you wanted to transfer your license to someone else, you'd inform AutoDesk and it didn't seem to be a problem.

Now, though, things are a bit different. (Personally I think Autodesk has become evil than Microsoft.) You have to both "buy" and "subscribe". You buy (around $4000 depending on the product), then you either subscribe for around $400/yr (and get support and all upgrades) or you don't (sorry Bud, you're on your own!). If you choose not to subscribe, can still upgrade of course, but if you happen to wait a few releases, you become "Legacy", which means your already owning the software only gets you a 50% discount; if you go a little farther then you're dropped entirely and you have to pay full price to get back in the game. And now you can't sell (or even give away) your software to someone else- say you're a small owner and decide to get out of the game- you can't sell your $4000 investment to anyone. IF someone buys your entire company they'll transfer, but they won't accommodate much less than that.

IF it was subscription, and you paid a monthly/annual fee for support, upgrades, etc., that would seem fair enough to me. I like that model, actually. OR if you really bought it, that would be fine too. To have to both buy and then tithe seems a bit excessive. It's no wonder Autodesk products are pirated so much!

We won't even talk about what an enema Rel.13 was :)

eBay's the guilty party here

[mwvdlee]

Autodesk was probably just sending DMCA's for any eBay ad that sounded like warez being offered.

They could have done a bit more to research this propperly, as the DMCA assumes, but the real problem here is that eBay just ignores any complaints about blatantly obvious (and provable) warez offered on their service without having to resort to legal measures.

Their own Vero service which is supposed to help in this department is a total sham; I've never even gotten response or noticed any actions being taken despite sending clear evidence that warez were being offered.

To me, the guilty party is eBay, for not taking any responsibiliy in upholding their own anti-warez policy. The only way to get eBay to stop being a warez middleman is by sending out DMCA's and with the sheer amount of warez on eBay, it was only a matter of time before this would happen.

I'm not saying Autodesk is innocent here; technically, they should have done the research. Just saying that none of this would have happened if eBay just did what their policy claims.

Re:eBay's the guilty party here

[julesh]

Autodesk was probably just sending DMCA's for any eBay ad that sounded like warez being offered.

Even in that case, Autodesk is in the wrong. The DMCA requires them to declare that they "a good faith belief that use of the copyrighted materials [...] is not authorized by the copyright owner, its agent, or the law." To have such a belief, I'd say they need to do more research than just bulk sending takedown notices without checking if there's anything to imply the belief. "Good faith" requires them to make reasonable efforts here.

Great choice of ads, slashdot!

[vrmlguy]

Check the ad appearing next to this article: http://samwyse.googlepages.com/slashdot-autodesk.jpg

Re:Great choice of ads, slashdot!

[Captain_Chaos]

Check the ad appearing next to this article: http://samwyse.googlepages.com/slashdot-autodesk.jpg

There are ads on Slashdot?

From career at MS to lawyer???

[Anonymous Coward]

I dunno how he did it, but apparently that guy has forfeited his soul TWICE!

The precious anti-VERO fight

[freepath]

Anyone seriously interested in this issue should read about the crusades of Ebay seller Tabberone, who singlehandedly defeated many corporate DMCA abusers trying to maliciously end their auctions:

http://www.tabberone.com/Trademarks/OurFight.shtml

It's a wealth of information for the self litigator. ...

~ f

Laws at Issue

[Evets]

AutoDesk used the DMCA to try to prevent a sale of their software. The DMCA is not in place to enforce breech of contract disputes - it is for copyright protection. Using the DMCA in this way constitutes fraud. They are trying to enforce part of their licensing terms that say you cannot transfer a software license. Certainly whether or not that provision is legal or enforceable if it is legal will come up at trial.

California has a law that if a company guilty of fraud and they are sued, they can be forced to transfer all profits from that fraudulent activity to the plaintiff. I believe last year that some of the teeth surrounding this law were removed partially because people were using the law to extort money from small business owners all around the state - but given the fact that AutoDesk has done the same thing to the same guy 7 times I would bet they are in a bit of trouble.

Why is eBay subject to DMCA takedown provisions?

[yuna49]

I asked this question the first time this case came up and got no replies. I'll ask it again.

Under what theory does the DMCA apply to eBay sellers? Unlike YouTube, eBay hosts no copyrighted materials. (For simplicity's sake, let's leave aside trivial objections like when a seller's advertisement includes a photograph of a copyrighted work.) Is the claim based on some extension of the Grokster decision, arguing that eBay somehow constitutes a "contributory infringer" if it hosts an auction for copyrighted materials? That seems to run squarely up against the first-sale doctrine. If I buy a book, there's no reason why I can't resell it on eBay.

I realize that the Autodesk case is more complicated since it brings into play issues of licensing vs. ownership, the enforceability of EULAs and the like. The only way I could see eBay being charged with contributory infringement is if they knowingly encourage the sale of illicit copies of copyrighted works. Even then, I think it's a hard case to make. In Grokster, the Court's argument rested largely on the fact that Grokster explicitly encouraged infringement by distributing its software application and hosting advertising on its website. How does that apply to eBay?

This could be the end of "physical" software...

[BUL2294]

While I'm all for this guy winning (and hopefully turning this into a class-action against Autodesk, eBay, etc.), I do wonder if this means that software manufacturers will no longer physically offer their software (i.e. CD, DVD, etc.) but will require you to download it. Everyone has been saying something to the effect of... "A CD is like a book--you can sell it, burn it, give it away, as long as 1 person has that item..." So if a physical CD is no longer offered, then that will be the next battle because then a software vendor will be able to truly say you licensed it by downloading it...