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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
There's legitimate software for sale on eBay?
News to me ...
If libertarians are so opposed to effective government, why don't they all move to Somalia?
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
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.
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.
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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
From the only comment in the article: "Ron said on Wednesday, 30 September 2009 Of course no one responded to your request for comments, this was decided over a year ago http://arstechnica.com/tech-policy/news/2008/05/court-smacks-autodesk-affirms-right-to-sell-used-software.ars So much for breaking news."
MS thought of that. The Windows license sticker belongs to owner of the laptop case.
If they change their minds A-la-AutoDesk, then MS will see its market share shrink.
Obama's legacy: (N)othing (S)ecure (A)nywhere and (T)error (S)imulation (A)dministration
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
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
The hearing referred to in May 2008 was on a Motion for Dismissal or Summary Judgement by AutoCAD. The judge DENIED the motion so the case then moved on to discovery and now is at trial.
Public Citizen are representing Mr Vernor: http://www.citizen.org/litigation/forms/cases/CaseDetails.cfm?cID=437
If you read the "Order Denying Motion to Dismiss and Summary Judgment (05/21/2008)" linked on the Public Citizen site, you'll see that the Judge decided that the Plaintiff (Vernor) bought the software copy and is covered by the First Sale doctrine. The Judge left for trial the issue of whether the AutoCAD license binds Vernor or his buyers despite it containing the term "non-transferable".
From the article you cite
> but Judge Richard A. Jones ruled in Vernorâ(TM)s favor and the case will proceed.
Translation: Vernor only "won" in that Autodesk didn't manage to to win its claims in summary judgment.
Autodesk's site has a tab to PURCHASE the product but not one for licensing. hmmm thats odd !!
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.
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
Think of Steam, where you have no means whatsoever of individually reselling the games you have bought.
Steam isn't exactly selling you a game; there are a few important distinctions between a purchase on Steam and a CD purchased in a store.
- Steam permits game access on a user-by-user basis.
- Steam can revoke access to individual games or entire accounts (i.e. they can actually control use of the game, unlike physical CDs).
- You are informed of these restrictions before you pay, which is entirely different from physical sales (which present an EULA after payment but before installation). I think that's the key that would allow Valve to win any lawsuit on the issue. (IANAL, I'm just speculating.)
I don't have a problem with Steam's method of doing things, though it is annoying that it only allows one game to be played per account at once (e.g. it'd be nice if I could play a game of Risk between deaths and respawns in Counter-Strike, or if my wife could play Boggle on my account on her computer while I play something else on my computer).
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.
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
Well we're not looking for absolute proof, just a preponderance of evidence:
* the user is engaging in an English-language forum
* the user has a username in English
* the username is a reference to an English-speaking character popular in English-speaking countries
* the user has an English tagline
* the user uses complex English tenses ("having seen")
* the user doesn't make any other grammatical errors common in non-native speakers (such as dropping articles or mixing up plurals)
* I looked at the user's other comments, which were all in well-composed English.
The response from AC was still a troll, but there is no reason to doubt the user is a native English speaker. And with that, I mostly agree with the AC: native speakers shouldn't be making mistakes like "lose/loose", "their/they're", "who/whom", or "its/it's". We were all supposed to learn those rules in, what, second grade or something, and then go on to use them every year through 12th grade, and in life. A little social pressure in the form of mockery is a reasonable way to keep us all using the same language.
All that said, this particular user seems to have a history of reasonably good English composition in other comments, so I'd give him the benefit of the doubt and say maybe this was just a mistake.
... 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.
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.
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.
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
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."
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.