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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
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.
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.
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