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Company Uses DMCA To Take Down Second-Hand Software
dreemteem writes "A judge Tuesday heard arguments in a dispute over software sales that could potentially have repercussions on the secondhand sale of virtually any copyrighted material. The suit was filed by Timothy Vernor, a seller on eBay, after Autodesk, citing the Digital Millennium Copyright Act, asked eBay to remove some of its software products that Vernor had listed for sale there, and later to ban him from the site. Vernor had not illegally copied the software but was selling legitimate CDs of the products secondhand. For that reason, he argued, he was not infringing Autodesk's copyright. Autodesk countered that because it licenses the software, rather than selling it outright, a licensee does not have the right to resell its products."
According to this article Vernor won the case: http://arstechnica.com/tech-policy/news/2008/05/court-smacks-autodesk-affirms-right-to-sell-used-software.ars
The fact that there is no used market is one of the reasons I left PC gaming behind several years ago. I can usually buy a used copy of a console game for a fraction of the new price, and it's saved me a fortune over the years. With PC games, there basically is no buying games used. The PC software industry has been bullying sites like ebay for years. Game publishers would no doubt like to kill the used market on console games too (that's why they're salivating so much over the prospect of going to download-only games and expansions), but so far have been stymied by technological limitations and a traditionally strong used game market for consoles. Just look in any Gamestop and you'll see a huge console section (with mostly used games) and an almost non-existent PC game section.
Why should PC games be regarded as so different? There is no reason game publishers couldn't require their software be used on one computer at a time the same as a console disc. Why should they be able to use that lame "We're not selling it, we're just licensing it" argument to stop resale of the physical software discs when movie studios and console game developers can't get away with it?
SJW: Someone who has run out of real oppression, and has to fake it.
I should hope so, they already won the court case more than a year ago when AutoDesk got bitchslapped hard.
eBay is the one that needs to be slapped now. As far the AutoDesk continuing to send DMCA notices, well they need to be put in jail for harassment.
I bet Autodesk will argue this precedent:
"In a more recent case involving software EULAs and first-sale rights, Davidson & Associates v. Internet Gateway Inc (2004), the first sale reasoning of the Softman court was challenged, with the court ruling "The first sale doctrine is only triggered by an actual sale. Accordingly, a copyright owner does not forfeit his right of distribution by entering into a licensing agreement." However, the point was moot as the court found the plaintiff's EULA, which prohibited resale, was binding on the defendants because "The defendants .. expressly consented to the terms of the EULA and Terms of Use by clicking 'I Agree' and 'Agree.'" - from wikipedia
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
Ebay is legally required to take it down if they are served with a DMCA notice. However, if you file a counter-notice, they are correspondingly legally required to put it back up unless the Copyright owner files suit against you.
E pluribus unum
Except in this case Vernor has never installed the software, never agreed to any EULA, and never clicked any 'I Agree' button.
That's where the First Sale Doctrine comes from: book publishers tried to slap EULAs on books around the turn of the 20th century that, among other things, prohibited resale. The courts found that these EULAs are non-binding.
We've already been through this bullshit once before, or at least our ancestors have.
Illegal terms cannot be stipulated in a contract. If this were not the case, Microsoft could include in its EULA that if you violate the terms of service, Steve Ballmer will come to your house and kick you in the genitals until you die from it. After kicking your balls out of your mouth, Steve would be entirely free of liability because, hey, you clicked agree. Obviously, this would not be allowed. Taking this further, first sale is mandated by law, in the same manner that murder is. Thereby, a contract (or license agreement) that denies first sale would be invalid, regardless of whether or not you agree with it.
To the haters: You can't win. If you mod me down, I shall become more powerful than you could possibly imagine
Ebay is legally required to take it down if they are served with a DMCA notice. However, if you file a counter-notice, they are correspondingly legally required to put it back up unless the Copyright owner files suit against you.
Service providers operating under the DMCA safe harbor are required to hold a subscriber's counter-notice for at least two weeks before putting the disputed information back up, so that the complaining party has an opportunity to get a court order against the subscriber. Auction listings expire before then.