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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."
why we're not the leaders of innovation anymore. Seriously, these guys should stop wasting time on this nonsense and innovate already. They made their money on the sale, go make something else to make more.
What I found most refreshing about this, is that from reading TFA, the guy's (Vernor's) lawyer actually has a good grasp on this issue and was explaining it, at least to the press, using good analogies that a common person could understand.
Maybe I'm being optimistic, but I think he has a very good shot at winning this.
"People who think they know everything are very annoying to those of us who do."-Mark Twain
Yeah, unfortunately eBay will pretty much always follow through on a requested auction takedown from a content producer. They just don't want to be involved in their lawsuit.
It's better to vote for what you want and not get it than to vote for what you don't want and get it.
- E. Debs
This is exactly why I do not purchase software.
Autodesk would probably lose due to the first-sale doctrine if this actually gets anywhere near a courtroom. As it is, the cost of Vernor proving that he has the right to resell his CD far outweighs the price he could get for it, so Autodesk is banking that he won't fight it. The really unpleasant part of the DMCA is that it puts the burden of proof on the party who wants to have the material up on the web rather than the party who wants it removed.
As with the parent, I'm not a lawyer, and this is not legal advice.
I am officially gone from
It seems to me that for a number of years we've been living as though Autodesk's position is the legal one.
So is it maybe the case that if Autodesk prevails, we pretty much keep the status quo, but if Autodesk loses, we have some of our freedoms reaffirmed by the courts?
It sounds like we should be glad this is going to trial.
In my experience, Autodesk has an activation scheme that makes Microsoft and Adobe look downright passive. I had a client once buy a copy of AutoCAD 2008 (the full, ~$4,000 suite), and next year when he retired the original machine and we built a new one, we called Autodesk to activate it and they were like "you need a subscription", and I was like "uhm...he paid $4,000 for your software, and that's not enough, even though, had he kept his old machine, he could still use it, and the fact that he was never told about any subscription BS when he paid for it?" and they were like, "Well subscribing comes with (stupid list of benefits of no use to him)" and I was like "I don't care, I just want an activation code" and after a little more BSing back and forth, I weasled a "one time courtesy" out of them, after which I promptly imaged the machine with Acronis.
Autodesk can't lose. If they win the case, the guy can't resell, end of story. If they lose the case, then they just make a new company policy that once the software is registered (required for activation), the user must provide that same information again in order for the phone rep to provide the activation key. Even if the guy wins the case and can sell the discs (and even the license), unless the judge makes it expressly illegal for Autodesk to withhold an activation key from the second owner, they'll likely take that route to ensure the same end result.
You own the software, but you're not licensed to use it. Kind of similar to the "you can have a circumvention device, and you can have a product on which the device works - both are legal. Using the circumvention device to remove the protection is illegal, however."
Car analogy: you can be given the keys to your parents car, you can have access to their car, but it's not legal for you to drive it if you're licensed to drive.
My reality check bounced.
Now, the DMCA would allow Autodesk to, say, validate a CD key online once only and then deny future installs on other hardware, since any attempt to get past that would be a circumvention attempt prohibited by the DMCA. But it's not Vernor's fault that Autodesk didn't do that. (Of course, just maybe they know that if they did, customers would be more reluctant to buy their software since most people don't like DRM.)
Unfortunately, I don't believe most consumers really appreciate the dangers of DRM yet. I'm looking forward to the day that a court case comes up where someone tries to sell on a second-hand product (software, e-book, whatever), gets told they can't because DMCA/EUCD/whatever anti-circumvention provisions are artificially blocking the sale, and then goes after the original supplier for fraud. Remember, in many jurisdictions, there is a fundamental requirement for honesty/understanding in any contract, and often there are laws specifically for one-sided cases such as where one party (the software/e-book/whatever business) had expensive lawyers write some huge long contract and a typical other party (a consumer making a purchase) could not reasonably be expected to understand all the subtle implications of the legal fine print.
Perhaps it's about time we had a balancing law that anyone selling[1] software with artificial, external barriers to use[2] must lodge a version of their software with no such barriers with some central organisation or forfeit their anti-circumvention protections entirely. The central organisation would then be free to release the unrestricted software on expiry of the copyright or in the event that a user was unable to make fair use[3] of the software and those who accepted the money/hold the rights failed to make reasonable allowance for this on request.
[1] No, you don't get to weasel out of this by claiming it's licensed, not sold. If you take money for it, consumers think it's either a sale (by default) or a rental (if there is a clear, fixed timespan attached).
[2] By "artificial, external barriers to use" I mean things like product activation and DRM schemes.
[3] Or whatever your jurisdiction calls its equivalent concept.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
IIRC, ownership and transfer of property was one of the [many] big talking points in the founding of America. Being a nobody and still able to actually own something, where previously only royalty could (or you could be lucky and they would grant you some, lords I'm looking at you!) was pretty nearly unheard of.
Good to see some ideas never die :)
This will happen if it hasn't already happened.
What definitely hasn't happened is the author or publisher having seen the "licensed" book being resold and brought it to court.
Once that happens all hell will break lose.
If games and software are copyrighted because they are expression of ideas, and *they* can be *licensed*;
there is nothing preventing books from getting the same "first-sale doctrine" circumventing license treatment.
Obama's legacy: (N)othing (S)ecure (A)nywhere and (T)error (S)imulation (A)dministration
Anonymous shithead wrote:
good.
Otherwise the place would be 99% full of copied, stolen software.You would think that software developers here would see what a bad thing that would be for the entire industry.
Either you limit resale, or you limit copying.
Or you all get jobs as bricklayers.
Choose.
I'm sorry. What??? How is it acceptable that I was not able to sell my used DVD of "Hunt for Red October" due to takedowns? Sorry Mr. Anonymous but there is simply NO way you can justify that act. I have the inalienable *right* to sell my old unwanted CDs, DVD, or disks.
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
On the day when an American is no longer able to buy a book, read it, and then resell it to somebody else, I'm moving to Russia where freedom still lives. (How delightfully ironic.)
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
Yeah, unfortunately eBay will pretty much always follow through on a requested auction takedown from a content producer. They just don't want to be involved in their lawsuit.
eBay's business is in the second-hand sale. They have a strong interest in this practice to be legal.
But the interesting thing about US jurisprudence is that "settled law" almost never is. All it takes is a few groundbreaking court judgments to reverse decades of precedent.
Sometimes that's good (see the history of civil rights litigation and criminal cases); sometimes it can be bad.
I don't know if this is the beginning of the end of the first sale doctrine, but I suspect there will be a case which historians will look back on and label that way.
And no, I'm obviously not a lawyer. A student of history, yes.
Welcome to the Panopticon. Used to be a prison, now it's your home.
I'll keep buying PC games for one simple reason: PC games tend to have more free content attached to them. Map Editors, Mods, etc etc. A lot of this isn't available on consoles, and plenty of things that are for pay on Consoles are for free for PC games (Maps, Avatars, etc).
We need to call a duck a duck, and a sale a sale. If Autodesk gives the user rights to use the software, with no expiration date and no future payments required, that is a sale. They can't just call it "licensing" because they find it convenient.
EULAs are a separate issue. They are presented to the user after the sale has been made. They appear in a form which is not taken seriously by 99% of software users. They can be accidentally agreed to by the user's friend, by a cat, by bumping the space bar. They are a contract between two entities without any meeting or any witnesses. And finally, they are just silly. I don't know if there is a legal argument for this, but the idea that clicking on a button on your own computer screen binds you to anything is absurd. Imagine a book with a wrapper on it that says, "by opening this wrapper you agree to never resell this book." Any reasonable person would laugh at this and then do what they please with the book.
Sadly, it now seems common practice to bury such terms deep within a EULA and obfuscate them through over-wordy legalese.
What's truly sad is that such terms have come to exist in retail software sales at all.
I'm not defending them, but I think they could argue that, because software makes you explicitly take action, that it is a stronger contract, and something written within a book cover.
Of course, there should also be a burden of proof that the EULA was agreed to. If I had never owned a computer before in my life, and bought one today, then it would be perfectly reasonable for me to assume that a software transaction works in the following way:
1. I go to my local store
2. I grab a product from the shelves
3. I pay for it, and take my receipt.
But, the software industry slips in a few complications.
So, can AutoDesk prove that the original owner agreed to the EULA? Or are they just assuming this because they know that it isn't really "agreed to", so much as "dictated from the company to it's customers"?
I personally believe they should have three options:
In a murder trial, the state will pay for your defence and you will never have to pay the other side's legal fees, so it will probably be cheaper in court.
I am TheRaven on Soylent News
it's not an inalienable right. It's a right limiting what you can do. Copyright is whatever congress says it is. At this time, congress allows for first sale. Congress can tighten it, or remove it and everything in between.
The copyright SPECIFICALLY limits rights.
The Kruger Dunning explains most post on
You are correct. The GPL does not cover use. You are free to use GPL'd software (or software under any other OSI-approved license) without agreeing to the license. You are required to accept the GPL, or come to some other arrangement with the copyright owner(s), if you wish to distribute the software. Presenting the GPL in an installer is nonsense; the person distributing the installer is the one who has to accept the GPL, not the person installing the software.
I am TheRaven on Soylent News
... its not license or copyright that Autodesk is trying to protect.
Autodesk sells their product (or actually a license to use their product) at a pretty high list price. However, they offer (as do their authorized resellers) volume discounts and special deals that knock a significant amount off this price. So, (I'm guessing) Vernor calls up Autodesk and orders a thousand copies, with licenses and gets The Big Discount. Then, without breaking the shrink wrap, he turns around and sells them individually. Probably at a significant discount from the list price.
Autodesk gets upset, since this sort of behavior undermines a key part of their market; selling single copies at list prices to small A&E shops who have no purchasing power. But one can't take that case to court. At the very least, it will probably get thrown out. Worse yet, it could attract the scrutiny of the antitrust enforcers, seeing as how Autodesk is effectively a monopoly in small CAD applications. So, they get a lawyer twist whatever law they can find around the circumstances and make a case out of that.
Have gnu, will travel.
(If somebody threatens you, then it's entirely appropriate to threaten them back. It's how our adversarial legal system works.)
IANAL, but I am a law student, but threatening to kill someone is not generally an appropriate response to a threat of litigation, and could be criminal if he had reason to take you seriously. Also, the situation the gp describes doesn't really constitute a threat to litigate anyway, Jane's is just asking him to stop because it doesn't like what he's doing. It's a pretty safe bet that if Jane's had any legal grounds at all it would have made an explicit threat, and the letter is all bluster, which can safely be ignored.
they still don't have the power to suck $$$ from your wallet, or jail you, or draft you to die in Arghanistan.
Corporations have sucked plenty of money from people's wallets, in many cases without any hope of recourse (thanks to mandatory-binding-arbitration clauses in non-negotiable contracts; read Consumerist sometime). They cannot directly jail you, because we've done away with debtor's prison, but they have pet governments to do that job for them. To date no one in the US has been drafted to die in Afghanistan, because the people won't stand for it; but funny you bring up the wars, given the overwhelming involvement of private industry in the American way of war these days... not the very war itself, but a substantial part of the way it's being carried out, are greatly to the benefit of corporations like Bechtel and KBR. Corporations do all of those things, thanks to the undue power money grants over the government. (And lest you say that it's still government doing those things, let me preemptively point out that the corps would be quite happy to do them as well, only the government stands in the way of private armies and police forces. Read up on the East India Company's rule of India if you wonder what corporations are capable of without government restraint.)
For the rest, when was the last time you got to vote for a corporation's leadership? Yeah, I thought so. Therefore the corporation is the greater evil: it cannot even in principle be restrained by the popular will.
Freedom isn't free; its price is the well-being of others.
Only if you believe authority comes from Congress.
I don't. I think authority comes from the People first, the State Constitution second, the State Legislatures third, the U.S. Constitution fourth, and the United States/Congress dead last. Authority flows from the People downward. That said - as the final holder of authority, we the people still retain the right of resale.
i.e. If I convert my wealth from gold, silver, or dollars to a DVD, TV, or computer, I also have an inalienable right to convert that material wealth back to dollars via the open market. Congress was NEVER granted the authority to stop sales of used products. See the constitution- "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Also see amendment 10.
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
I thought the issue with the R4 cartridge was that it circumvented the RSA check by the console. Reverse-engineering or bypassing copy-protection systems violates the DMCA. It might be bullshit, but it's still illegal enough that EBay won't touch it with a 10" pole.
Write your representatives! Repeal the 2nd Law of Thermodynamics!
eBay is not obligated to provide you with a place to exercise your rights.
And you are incorrect about what Congress can do. At least in practice. Try building your own firearm in, say, the state of Montana, and selling it to another resident of the state of Montana.
"Sacrifice for the good of The State" - The State
eBay's business is in the second-hand sale.
Really? All I see on there these days are new items worth ~$20 selling for "$1, no reserve" with $30 shipping.
Learn to love Alaska
Actually no, you are merely begging the question. At one time book publishers did try to license, not sell, their product. That was when the courts developed the whole concept of the First Sale Doctrine... to prevent the publishers from doing that anymore.
IANAL, but here are some other facts of which you should be aware:
US courts have consistently ruled in the past that if you paid for something in a retail store, you have bought it, not licensed it, no matter what kind of product it is, or what kind of "licensing agreement" is on or in the package. Sellers of just about every product in existence have tried to license it rather than sell it before, and the courts have consistently shot them down. However, I do not believe that such a case concerning software products in particular, purchased at retail stores, has yet been heard in Federal court.
Is the agreement to accept a EULA the same thing as entering into a contract? - Maybe. It depends on the circumstances. Certainly, some license agreements are binding. But: did you "agree" to it before you laid down your money? Or was it an "agreement" that did not appear until you were installing the software? If the latter, should you be allowed to ignore it? After all, language in the agreement saying you should return the product if you don't agree is complete bullshit... the software vendors know full well that there is not a major retail store in the United States that will accept the return of software once the package is opened. The software vendors know that because they lobbied very hard to create that very situation.
Did you buy it online and agree to something before you paid? Maybe then it is binding. Is it printed on the side of a package at a retail store? Courts have ruled in the past that those agreements are not binding, for many different kinds of products.
Are there legal standards that a contract must meet in terms of fairness for both sides? - Fairness? What is fairness, and how does a court decide? If you sell your old but still good Lincoln Mark IV to the kid next door for $1, is that "fair"? Maybe, maybe not, but if it's written down it's probably binding. On the other hand, there is the concept of a "contract of adhesion": this often takes the form of a "contract" drawn up beforehand by some large company, intended to be signed by all of its customers, with no negotiation really possible (like maybe the thing you signed when you got cable TV). Since the whole concept of a "contract" is supposed to be a negotiated agreement between two parties, and not just a list of demands by one party, courts often take a biased stand against contracts of adhesion if any legal wrangling ends up taking place.
If the answer to the previous two questions is affirmative, then could a significant number of the EULAS by which software is licensed be challenged under this standard? - Certainly. *IF* But first those two questions (the first one in particular) must be answered.
My personal feeling is that "shrink-wrap" licenses ought to be rejected completely and found to be non-binding. How can something constitute a contract if it hasn't even been seen by one party before he/she has paid? That violates the whole concept of a "contract". And as we know, the demand that the product be returned if one does not agree to the EULA is crap... the stores won't take them back, and the software manufacturers and vendors know this.
As a reminder, the above is just my opinion, and I am not a lawyer. But I think my reasoning is sound.
Nothing you just said contradicts the GP at all. In every single one of your examples it's the government which acts the part of the villain. A corporation can, at most, ask the government to do something on its behalf, and perhaps offer some form of material incentive (i.e. a bribe). In every case, however, it's the government which actually violates your rights, not the corporation.
"The state is that great fiction by which everyone tries to live at the expense of everyone else." - Bastiat
"On the day when an American is no longer able to buy a book, read it, and then resell it to somebody else, I'm moving to Russia where freedom still lives."
Freedom in America was bought with violence.
The willingness to skewer British troops with sword and bayonet, send musket ball and cannon shot into their ranks, tar and feather their officials, burn their facilities,and sink their ships is what secured America for Americans. We should remember this and savor it, for it reflects fundamental truths about man.
What freedom man has is because he is willing to kill for it, and killing for freedom is as noble as sacrifice for freedom (not to mention more effective).
Pacifism is submission (Ghandi wasn't playing against a serious opponent, any such would have killed him early) and does not work against serious people. What does is to kill and maim enough (or all) of them until victory is seized.
IMO things aren't nearly bad enough yet to require drastic measures, but no American should rule them out.
The National Anthem isn't obsolete. We were once a country of revolutionaries willing to kill for revolution. Now we are comfortable sheep. It needn't stay that way.
"This post is an artistic work of fiction and falsehood. Only a fool would take anything posted here as fact."
EULAs squarely fall under contract law. As such, a EULA a form of contract where the user enters into a non-negotiable, non-equitable contract. This fact is why many consider EULAs unlawful and in violation of contract law.
we are comfortable sheep because we are comfortable. our system, for all it's flaws, makes sure that most people have quite a bit of what they want and all of what they need. people don't go out and risk life and limb due to some theoretical injustice against them, even if it is very severe and real. for example look at the relatively low frequency of slave revolts prior to the civil war, despite millions of people being kept as chattel slaves with no rights whatsoever. the trigger for revolution is not going to come from overbearing government intrusion or even squalid living conditions, but rather from a large scale sudden, severe, and perceived to be permanent change in both directions. people are easy to scare into trivial action, but it takes a whole lot all at once for people to decide to give up "ok" living in favor of killing the bastards who screwed up their previously "good" lifestyle.
Snowden and Manning are heroes.
that software and other media producers admit that they don't sell you "anything", they are in reality asking you to rent it. I think there should be a class action for fraud and misrepresentation when they try and pretend you are in reality buying anything when you are not.
Property is anything you yourself can defend. Government is just an agreement between people to help each other defend one anothers things.
This is also the #1 reason i've started pirating all my pc games before i'll even consider buying them.
I dont mind too much buying a game and finding out its crap or i dont like it or it wont run... IF i had some option to get some or all of my money back.
But you can NOT return a pc game in the USA. Unless it's 'damaged'. And they wont ever give you your money back. Just another new copy of the game. And you can't really sell opened games 2nd hand at all either.
With the whole 1 use cd key and limited activation bs these days. Most people wont trust you enough to buy a used game from you at all. Unless you return it as damaged and then sell a new shrinkwrapped copy 2nd hand. But shit thats a lot of hassle just to get a worthwhile product for the right price. And seems just about as illegal as pirating in the first place. With far more hassle.
So you really only have one (legal) choice. Buy it and you're stuck with it. Good or bad.
So fuck them. Their own greed is their number one problem. Sure would be nice if the courts bitchslapped these guys into selling a product that could be returned or re-sold. Just like every other item in the world.
Why does software get such special treatment?
The copyright SPECIFICALLY limits rights.
But wen I sell the original DVD/CD, I don't copy anything, so why should copyright apply at all?