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Federal Court Says First-Sale Doctrine Covers Software, Too
New10k writes "The US District Court in Seattle has rejected Autodesk's myriad arguments regarding its software licenses and found in favor of eBay seller Timothy S. Vernor. The ruling started by ruling that Vernor was within his rights to resell copies of AutoCAD Release 14 he got in an auction. Once the court settled the legitimacy of reselling, it used that ruling as a lens to dismiss all of Autodesk's various claims. More than once the court described Autodesk's arguments as 'specious' and 'conflicted.'" Autodesk managed to have Vernor's eBay account pulled, after he listed for sale copies of AutoCad 14. He sued Autodesk in response.
Score one for the little guy!
Those of you who have not had to deal with their software and their heavy handed approach to licensing and upgrades are lucky.
What I could not figure out from the article was: What happens now to his ebay account? If it was pulled, I hope ebay restores it. Bugs me that ebay, google, youtube etc. always gets away for enforcing bogus claims. I did RTFA, but please enlighten me if I have missed something.
Dvorak on Doomtech
The difference is that World of Warcraft has something interesting on its servers. With Autodesk, all the really interesting stuff is on the desktop. As such, it's much less trouble to hack Autodesk to play for free than to hack MMORPGs (not that this has stopped a few random free "shards" showing up in various spots from time to time, game to game).
The World Wide Web is dying. Soon, we shall have only the Internet.
The courts found you are allowed to sell your own property. Even if the person you bought it from says you can't. At least in the area where software is concerned ;P
People don't use AutoCad because they like the company behind it, they use it because they've decided it's the best tool for the job. The people using it cost a whole lot more than software, so you give them what will make them the most productive.
Whale
I mean, look at how libraries have put all those authors and publishers out of business.
You can get the books for free there! It totally destroyed the book selling market.
Weaselmancer
rediculous.
Indeed. Our personal property right to resell tangible things we own has been trampled on by vapor makers for far too long. First sale and fair use are the only things keeping patent and copyright from becoming a complete perversion of their constitutional purpose, which is ..."To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; "
The Uncoveror: It's the real news.
I'm glad to see this was slapped down. From my understanding (from reading the article) is that Vernor obtained boxed copies of AutoCAD (through some legal means) and then sold them on eBay. AutoDesk was claiming that Vernor was bound by their software license agreement. Even if you accept the validity of a click-through license (a big IF, I know), how would he have been bound by a license that he never clicked "I Agree" to? In AutoDesk's reasoning, did his mere purchasing of the boxed software bind him to the license? I can see how a judge would laugh this out of court. At least with a click-through license, you can present the license's text. In a "buy the box, bound to the license" agreement, where would the license be presented to you? As you were about to pay for the box, would the Best Buy checkout clerk hand you a 10 page agreement to sign? If they didn't, then the license can't be binding (you need to be able to read a contract before agreeing to it), if they did, a lot of people wouldn't feel comfortable signing a big, legal looking document every time they picked up a piece of software.
My sci-fi novel, Ghost Thief, is now available from Amazon.com.
I agree. Thinking about it from the perspective of the potential buyer, AutoCad is making it difficult to purchase their software. It has been chatted about in the past how locking down software just encourages people to find alternative solutions to getting a copy. In this case it isn't a software lock, but a legal lock. Either way the result is creating a black market that didn't necessarily exist before.
Well, this is what happens when you go to court. You sometimes lose. Expect Autodesk to quickly settle this out of court with quite generous, but non-disclosed, terms to Mr. Vernor. I don't see how they can take the risk that an appeals court will uphold this, so I expect them to pay him a lot of money (maybe $100,000 or more) and have him agree to a non-disclosure of the settlement. The court case will be dropped and Autodesk will not admit to wrong doing and the ruling won't apply since they settled. This will keep the door open that Autodesk or some other company might be able to try a similar case in the future and get a ruling in their favor.
But what the court actually determined is that software licensing agreements (as currently written) do not apply to third parties. And that those third parties have the right to resell software under the first sale doctrine.
Even so, it's still an amazing ruling.
If someone says he and his monkey have nothing to hide, they almost certainly do.
I have a client that was recently nailed by the BSA for having illegitimate copies of Autocad, because they purchased them online through various Ebay auctions (they only needed 2005 LT, not the latest and greatest, expensive version). The BSA deemed their less than 10 copies to be illegal, and nailed them with a hefty fine. My client wanted to avoid a legal battle, so they settled and paid this fine.
That being said, does anyone know what the laws are in Canada regarding reselling retail, boxed Autocad, and if my client had a foot to stand on?
No doubt, part of the problem it has with piracy comes from the way that software isn't held to the same expectations as physical property, adjusted for the ability to copy it. If I buy a copy of Autocad, I should be able to sell my one copy of it. I can do that with anything else in my home. Why should software be exempted from this social and legal convention of property use?
They can resell it for $80, then buy it back one week later for $65.
Do you even lift?
These aren't the 'roids you're looking for.
I think a very valid argument is being made, and people have been saying this for awhile. People share and lend books to friends all the time. Yes, it is difficult to get a break in the book market, but the real advantage in movies and music (fir the producers) is barriers to market. As Lawerence Lessig argues (in part) in his book Free Culture, movie companies don't care about piracy, what they worry about is a reduction in the barriers to market. P2P enables anyone with a $200 camera and a $1500 computer to be a movie producer and seen by anyone almost instantly with no restrictions to geographic region. This terrifies the big movie companies. It has been easy for them to make lots of bad movies because there are not a lot of alternatives when it previously required millions of dollars and the studios permission to get in on the game.
As for CD's? It is as dead as AM radio (AM Radio has a dirty history, read Free Culture)
Want Big Business out of government? Take away the incentive and start by getting government out of big business!
That argument works just fine for music, but IMHO not so great for movies.
Reason being, a good song is just that - a good song. Three or four people with a few thousand dollars worth of gear can make some damn good music. Put them in a million dollar studio and the quality doesn't really go up all that much.
A good movie is a lot more difficult. Far more expensive. While scripting lately has sucked, Hollywood can't really be beat in terms of technical prowess. Unlike music, the more money you throw at a given project the better the results. Watch some of the other CDs that came with your Lord of the Rings set to see just how much went into making that, for example.
To put the argument on the other side of the court - how about porn? The one movie market where the large retailers and the home producers are on close to equal footing. Reason being - no script, no special effects, no huge budget. All you need is a room, a camera, and a few willing people. And homemade porn sure hasn't put a damper on the professionally produced variety.
I think the music people are far more worried about the "barrier to market" argument. And the litigation record would probably back that up. It's the RIAA that's going mad with the lawsuits. Compared to those folks, you hear hardly a peep from the MPAA.
Weaselmancer
rediculous.
True reverse engineering, done without any cheating by hiring somneone who's seen the source code etc, should be protected. Blizzard has a right to copyright their source code, but not to prevent anyone from designing a different solution (from scratch) that behaves exactly the same.
Company's *don't* have some magical right to make a profit. Just because they spent money in developement doesn't mean they get to make a profit. There are specific rules on how IP is protected, and (legitimate) reverse engineering does not break copyright, patent, or trademark protections. Companies know what these rules are before they develop their product, and coming along later and saying "people behaving legally are hurting our profits, so please change the laws" is something we have *far* too much of rght now.
Now, of course, Blizzard can say "if you want to use our servers, we require that you use our client" because that's a contract negotiation for the online service, nothing to do with software. But if someone reverse engineers the sever, and offers their own game with original content, Blizzard doesn't have a leg to stand on.
Socialism: a lie told by totalitarians and believed by fools.
Smart people switch to Microstation and stop using AutoCADD after they have a bad experience. Bentley is a far better company to deal with, a company that produces better software IMO, has better support and actually cares about their customers.
Where did I say that? There is no contract. At most, there is a EULA which is non-negotiable and is not even presented until after the purchase is completed. A contract is a documented agreement between two parties for an exchange of money, goods, services, etc. The EULA is not even presented until after that exchange has been copleted. How can it be a contract?
If you install a piece of software, you click through an agreement. You are party to a contract(-ish thing, to get technical).
No, I click the let-me-use-what-I-have-already-paid-for button that is labeled "agree".
If one of the clauses is that you cannot resale the software, and you have agreed to that clause, then why do you all of a sudden feel entitled to sue because you should be able to resell the software (when you agreed that you wouldn't per the contract)?
You didn't read my post, did you? Why are you responding to it? Did you miss the paragraph about the EULA explicitly stating "You may permanently transfer all of your rights and obligations..."? Isn't one of my rights the ability to use the key that is part of the package?
Don't give me bullshit about how you didn't see the license until you bought the software, because you can still return the software if it's not been installed yet. It's the law.
The bullshit part is the part about returning it. Most stores will not accept returns of opened software. Mail-order stores will not pay shipping for the return or refund the original shipping cost even if they were to accept the return. It's not the law; it's a provision of the EULA which the vendors were not a party to.
I just got done with a software licenses class at my law school (wrote my paper on open source licenses, actually), and while I may not like the terms of these clickware license agreements, in my opinion they are valid and we should follow them or stop buying the software / return it and let the companies we don't like how they do business.
That's your opinion, good. My opinion is that they are only as valid as we allow them to be. They are unconscionable, primarily because they are not presented until after the sale is complete and attempt to impose conditions and restrictions that were not agreed upon at the time of the sale. Making it unusable by not accepting the EULA after I have purchased it and installed it has wasted my time and money. Those conditions and restrictions should be presented in full at the time of the sale.
Thoughts? I'd love it if there were some argument to make me switch sides on this issue, as I really want to be on the other side, but I don't think the better arguments are on the other side. I think they're on the side of "obey the terms of the contract."
In general, I'm on the side of "obey the law". I don't know where exactly the law stands on this yet. A EULA is not law. A EULA is a post-sale unilaterally imposed non-negotiable statement of restrictions and conditions with the appearance of a contract that must be agreed to in order to use what was already purchased. Contract law may be relevant to this, but first we have to determine if a EULA really is a full-fledged contract. My opinion is that it is not.
Edward Burr
Having a smoking section in a restaurant is like having a peeing section in a swimming pool.
Mr. Vernor never installed (those copies, at any rate) of AutoCAD, and so never agreed to any license. If the company that sold those copies to him violated its license, that's between AutoDesk and that company, but not Mr. Vernor.
And license violation doesn't automatically mean copyright infringement, either.
But that's what this whole thing is about -- AutoDesk has been sending DMCA (i. e. copyright) takedown notices to eBay over Mr. Vernor's attempts to sell copies of AutoDesk whose license he never agreed to in the first place.
The First Sale Doctrine *is* also law, and contracts and agreements do have to follow the law.
No, I'm suggesting that the terms of the contract should be agreed upon before the sale is completed, by which I mean money changing hands and me leaving the store with the item I purchased. Anything after that point is unreasonable.
Hell, the current regime still permits post-purchase refusal and refund, but what you're suggesting would make it worse for the average consumer.
Yes it does, but they make it difficult to get the refund, they make it time consuming, and you usually don't get a complete refund, even if you don't count the time wasted. It may make it worse for the average consumer in the short term. In the long term, outrage over that would likely cause the publishers to reduce the contracts to the minimum possible and present more reasonable terms that both parties agree with. As it is now, most people click the let-me-use-what-I-purchased button whether they agree with (or even read) the EULA or not.
Finally, the time of the sale is not the end of the license formation process, and it does not have to be. Again, how do you think people in faraway lands have done business for decades? By mailing contracts back and forth, and including partial performance as part of the deal. You buying the software is partial performance of the agreement. Later, when you click "agree," that's the rest of the performance. The agreement is not finalized until you've fully performed. It's basic, black-letter contract law.
There's a significant disconnect then. I consider the agreement complete when I say "I'll give you this money for that item" and the cashier says "done". The piece of paper hidden inside the box is not part of the agreement; that is something that comes after and says "you can't use this thing you've already paid for until you agree to our amendments to your purchase."
This has never been a valid argument for why a contract or license is crap. Consider this: you read a contract before signing it. You decide you don't like it. Do you now get to say all contracts are unconscionable because they waste your time since you have to read them?
The waste of time is the change of the terms of the agreement after the sale is complete. I have completed the purchase. I have returned home. I have installed the software. Only then is the EULA presented. If it had been presented at the time of purchase, so I could consider it then, if I should decide the EULA was not acceptable I could walk away right then. Now I have to uninstall it (in some cases), return it to the store, convince customer service that the EULA says I have the right to a refund and that they have somehow agreed to that EULA. For example, I spent considerable time reading through all the contracts when I bought my house. The contracts were signed before payment was made. The same is true for my car. I did not consider that time wasted. In both cases, after the sale is complete, nobody came running up denying me entry to my house/car until I signed an extra contract that had not been presented and agreed to before the sale completed.
Edward Burr
Having a smoking section in a restaurant is like having a peeing section in a swimming pool.
I knew that would be a bit of an inside joke.
:)
AM radio was a big and powerful medium long before tv, but there were some serious drawbacks (like that annoying perpetual humming in the background). Edwin Armstrong, scientist, was commissioned to improve on AM radio on the promise that big media would license it. Mind you they held all the patents for all the technology and the power to control the future technology in many ways money can.
What was totally unexpected was Edwin went on to develop FM radio, something beating all the problems of AM, and totally outside the scope of big media control. Just as Edison tried to do to Tesla with AC power, Edwin was discredited and sued into oblivion, and during all the distractions of a European war, big media managed to buy protection from congress to ensure FM would have to stay within a narrow band of frequencies and transmission power, despite the fact FM was and is superior in every way. Note:limiting transmission power was necessary to ban it from being usable by the government or telecoms which would have required the kind of power that was only legal for AM, for trans-American and transatlantic broadcast. Edwin, eventually old and ruined, seeing what he knew was great destroyed, went on to blow his brains out.
And today we have a strong and thriving AM radio industry, a towering zombie icon to political corruption and an eternal symbol for the power of money!
So as I said, their dead like AM radio
Want Big Business out of government? Take away the incentive and start by getting government out of big business!