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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."
Vernor absolutely has the right to resell his CD, due to a well-known section of copyright law known as first-sale doctrine. If you legally possess a copyrighted work, you can resell it, as long as a new copy is not created. I don't think this case will last very long.
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.)
I am not a laywer.
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
As stated countless times, they sold him a copy of the software, not just a license. Their own argument falls down when one considers that they didn't have to physically sell him a cd with the license, they could have done what movie theaters do and sold him a key that lets him access the software somewhere else. Still, they gave him the physical media. With posession 9/10ths of the law, I find it highly unlikely that he would somehow not be "allowed" legally to resell items in his posession. The new licensee might not be able to activate their product, but that's not his problem. He can sell the physical media all day long and there's nothing anyone can do about it.
stuff |
As I recall, there is a fixed penalty in the DMCA for sending takedown notices that you know to be illegitimate. This is usually difficult to prove, but given that they have already lost a lawsuit on the exact same issue it should be relatively easy in this case.
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J'aime mieux les méchants que les imbéciles, parce qu'ils se reposent. -- Alexandre Dumas
This was a long time ago, so don't take this as exact wording.
While in college, I used a CAD package. A portion of the license was printed on a postcard visible through the shrink-wrap, and read something along the lines of the following (emphasis mine):
"Purchase of this product signifies payment for a STUDENT LICENSE to use this software. The included manual and software installation disks REMAIN PROPERTY OF (product name), and the LICENSEE AGREES TO RETURN OR DESTROY the installation disks when the license terms expire.
Purchaser MAY RESELL this software along with the included license key provided that key has not yet been activated.
Activation of the (product name) software via the included license key constitutes agreement to these terms."
There was no room for interpretation; it was clear that I was buying a license, and not a product.
Sadly, it now seems common practice to bury such terms deep within a EULA and obfuscate them through over-wordy legalese.
A friend who sells books on eBay often sells used copies of the Jane's books (Jane's All the World's Aircraft, Jane's Fighting Ships, etc.), the annual editions of which sell new for $900+. He's listed many of these over the years, but recently out of nowhere he gets an inquisitory e-mail from Jane's, demanding that he inform them of the source from which he obtained the books, and strongly suggesting that he not list them anymore because the reduced prices he gets for resale are "diminishing the perceived value of our products." He was tempted to tell them what to stick where, but as he put it, "the next step may be legal, and right or wrong, I don't want to get into a transatlantic pissing match over this."
(So now, he sends any Jane's books he finds to me, I list them, and we split the profits. And no nastygrams from across the pond yet. Yay for me.)
A good example, though, of how even a legally misguided implied threat can intimidate someone. If my friend sold nothing but Jane's books, he'd be more inclined to fight, but he does a decent business without them, and just figures he'll avoid getting into something that he has neither the time or money to deal with.
"Every great cause begins as a movement, becomes a business, and eventually degenerates into a racket." -- Eric Hoffer
Verner never installed the software, and therefore never accepted a shrink-wrapped license. What we really want is an install-remove-resell case that the defendant wins. This is a good start though. Autodesk makes Microsoft look like the best, most consumer friendly corporate citizen ever. Their software is bloated and buggy (their text editor can't keep up with a 60wpm typist on a modern 2GHz single core machine), their CS is horrific when it exists, and their licensing is draconian. They own such a large share of the market in certain industries that they just don't care.
Is it just my observation, or are there way too many stupid people in the world?
Yes & so was the trial. ComputerWorld UK just sucks.
There is a war going on for your mind.
Understood. That vendor lock-in inherent in such software is the reason they so desperately need to be smacked down in court---if not for first sale violations, then for monopoly abuse.
Check out my sci-fi/humor trilogy at PatriotsBooks.
Autodesk's site has a tab to PURCHASE the product but not one for licensing. hmmm thats odd !!
Because I am having a problem wrapping my mind around the US law.
The DMCA protects copyrighted works. Of course, the Autodesk software is copyrighted, but it is also licensed. Autodesk alleges that the software cannot be resold, due to licensing restrictions.
Copyright has not come into play yet.
Which I get. This may be disputed, but will falls under contract law.
Now, Autodesk enjoins EBay to remove the software, alleging a DMCA violation. Where the fuck did THAT come from? Copyright was never infringed (as far as I can see). Of course, EBay removes the software, but Autodesk must have known that this was not a Copyright infraction! Of course they hold the Copyright, but first-sale doctrine would apply.
DMCA shouldn't apply. But, hey, colour me confused. Now I understand that it would be illegal to have illegal licensing terms, but the only terms that could possibly apply (in a recent license) would be (1) The DMCA covers the Copyrighted portions (which is the case anyway, so why bother mentioning it), or (2) We allow the additional dropping of DMCA terms. In any case, any additional restrictions would be license restrictions, and not DMCA restrictions. Specifically, the removal of the first-sale doctrine would be a licensing term, and would not follow Copyright.
Which would appear to make a DMCA takedown inapplicable.
But what the fuck do I know? US law confuses me...
Just another "Cubible(sic) Joe" 2 17 3061
...and if he didn't "buy" them, then he's not "selling" them, either, just getting money in exchange for them [sic], same as Autodesk did.
"National Security is the chief cause of national insecurity." - Celine's First Law
As someone who works in a very specialized market (aerospace), I would be concerned that if Autodesk or any other developer of specialized software were not able to dictate the terms of their licensing, including licensing the individual rather than having the license apply to the copy of the media itself, then many specialized markets would fail.
Why? Because there are limited sales opportunities to support the employee base required to develop and maintain the product. CAD programs are not like a copy of "The Hunt for Red October" largely because virtually anyone can use a copy of a movie, but only a few (by comparison) can utilize a CAD program. There are even more extreme cases in aerospace and helps to explain why there are so few successful COTS software providers in aerospace. But if Vernor's claim is upheld, even those companies would fail as a large organization (like NASA) would simply need to buy a fixed number copies and then pass them from mission to mission.
Second-hand software sales in specialized markets would kill those markets. Just my two cents.
all they have to do is sue you
Various corporations basically (and sometimes directly) write the laws while "donating" to Congress critters. Plus, some prison corporations have bribed judges to get them to send people to prison rather than hand down lesser punishments. They also lobby extensively for stricter sentencing, which would greatly increase their profit margin.
We've fought plenty of small wars for the benefit of corporations. We overthrew the Iranian president and installed the Shah just to protect oil companies' profits. We waged small wars in South America just for the sake of a fruit company.
The government is in the pocket of corporations. You need to learns critical thinking skills and actually ask questions about what you are told.
Similar to the upcoming US election results
A better car analogy: many minivans and SUVs have DVD players in them. The code inside the DVD player is subject to the DMCA. Hence, by this judge's interpretation of the law, it is illegal to resell that car.
Homonym confusion is a common sign of dyslexia. Of course sometimes people are just sloppy, but if that's the only mistake someone makes in composition (or the other mistakes are also consistent with dyslexia), there's a good chance that's the problem. It can be treated, but most people don't realize that it's a neurological condition and have your type of response instead of recommending treatment.
Laissez lire, et laissez danser; ces deux amusements ne feront jamais de mal au monde. - Voltaire