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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.
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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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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
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.
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