Company Uses DMCA To Take Down Second-Hand Software 488
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."
This case is already over (Score:4, Informative)
Hope they win (Score:5, Informative)
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?
Re:The guys lawyer (Score:5, Informative)
I should hope so, they already won [arstechnica.com] 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.
Re:Autodesk will lose (Score:5, Informative)
I bet Autodesk will argue this precedent:
"In a more recent case involving software EULAs and first-sale rights, Davidson & Associates v. Internet Gateway Inc (2004), the first sale reasoning of the Softman court was challenged, with the court ruling "The first sale doctrine is only triggered by an actual sale. Accordingly, a copyright owner does not forfeit his right of distribution by entering into a licensing agreement." However, the point was moot as the court found the plaintiff's EULA, which prohibited resale, was binding on the defendants because "The defendants .. expressly consented to the terms of the EULA and Terms of Use by clicking 'I Agree' and 'Agree.'" - from wikipedia
Re:Autodesk will lose (Score:5, Informative)
Ebay is legally required to take it down if they are served with a DMCA notice [chillingeffects.org]. However, if you file a counter-notice [chillingeffects.org], they are correspondingly legally required to put it back up unless the Copyright owner files suit against you.
Re:Autodesk will lose (Score:3, Informative)
I hope you're right, but I'm not so sure. That "well-established doctrine" predates the Blizzard decision. The Blizzard decision asserted that the first sale never happened. How can you resell something that you never bought?
Of course, the truth is that the Blizzard decision was just plain wrong and the judge simply didn't think about what he was doing. But nevertheless, that's what the court did, and lawyers are going to cite it to other judges.
Re:Autodesk will lose (Score:5, Informative)
Re:Autodesk will lose (Score:3, Informative)
Those rules only apply where the hosting company actually serves copies of the allegedly infringing content -- that is, when someone has Ebay serving up copyrighted text, images, video or the like. It doesn't apply for advertisements or offers for sale.
Re:Hope they win (Score:4, Informative)
I mean have you ever heard of a used book store?
Yeah, it's called a library.
Yeah, it's called a used book store.
How old is this? (Score:2, Informative)
Re:Autodesk will lose (Score:5, Informative)
That's where the First Sale Doctrine comes from: book publishers tried to slap EULAs on books around the turn of the 20th century that, among other things, prohibited resale. The courts found that these EULAs are non-binding.
We've already been through this bullshit once before, or at least our ancestors have.
Re:Reselling second hand laptops (Score:3, Informative)
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.
Re:licence & maintenance (Score:1, Informative)
The license gets you the right to use the software for a limited time *as-is*. Maintenance covers updates, supports covers you calling in for help. What's so hard to get ?
Re:Autodesk will lose (Score:5, Informative)
Re:The guys lawyer (Score:2, Informative)
AFAIK, the law states that under penalty of perjury, the issuer of a DMCA takedown notice must be the holder of the copyright on the work in question. There's no requirement that the notice itself be legitimate.
The case IS NOT over... (Score:2, Informative)
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".
Re:Autodesk will lose (Score:2, Informative)
http://www.caddmanager.com/CMB/2008/06/autodesk-loses-court-battle-2/
Re:Autodesk will lose (Score:2, Informative)
Re:Autodesk will lose (Score:2, Informative)
http://www.caddmanager.com/CMB/2008/06/autodesk-loses-court-battle-2/
...and the case will proceed (Score:2, Informative)
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 [wikipedia.org].
Two week downtime (Score:5, Informative)
Ebay is legally required to take it down if they are served with a DMCA notice [chillingeffects.org]. However, if you file a counter-notice [chillingeffects.org], 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.
Re:Autodesk will lose (Score:1, Informative)
No, they lost the motion to dismiss the lawsuit. The lawsuit against autodesk may now continue.
Re:Autodesk will lose (Score:1, Informative)
Well duh. eBay's business is a marketplace not a police force or law firm.
I will tell you from experience that virtually all the DMCA notices sent to eBay come in the form of either eBay's VeRO form (which results in expedient removal) or from Law firms who are completely incompetent at technology (whoa, the internet must be new to them!) and pretty much cite every possible reason why they don't want something on the site.
eBay staff are not lawyers, at least not the ones that take down the listings. eBay isn't going to hire lawyers and train them to remove listings, no it works the other way around, they hire high school graduates (that is the only requirement to work at eBay) and give them a checklist.
eBay has some measure of proactive removal, but this is mainly to combat the most obvious items with legal ramifications (eg, vhs tapes, porn, hate material.)
GPL software tends to be sold all the time and people will report the sellers for "selling" free software like it was some kind of crime. The only violation these ever run into is keyword spamming for the non-free equivilent (ms word and such), eBay doesn't have the software and can't evaluate if they they are following the license.
And as such eBay doesn't have the software being sold in any auction listing, and therefor can't ever be the judge in a licensing issue. VeRO even has a specific removal code for that which is simply "Software License violation". It doesn't tell the seller copyright infringement, though the law firm who sends the form to eBay might say it is regardless.
Re:How old is this? (Score:3, Informative)
You know, I thought this sounded awefully darn familiar [slashdot.org].
Re: Licensed books (Score:3, Informative)
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.
Re:I'm sure they've got a Plan B (Score:2, Informative)
We sell software without a subscription all the time. The subscription is sort of like an annual upgrade plan. Rather than paying the full price of the software, you pay a subscription fee each year, which entitles you to the next release of software as an upgrade (replacement of your current copy with the new version, kind of like trading in your car for a new one). I'm not hot on the idea that you have to give up your previous year's license to get the new software, but it's way cheaper than buying a new seat of software.
Difference is, if you bought a new seat each year, you would end up with a seat of software for each year you bought it. Most people don't want extra, outdated software anyhow, so they just pay the subscription fee and take the cheaper upgrade.
But if you need to activate, say, AutoCAD 2006..? They can't stop you. If that's the version you bought, and haven't upgraded it since, you have full rights to activate it. You call them up, give them the activation request code, they give you the activation code, you're done. I haven't heard any whining about this issue. I wouldn't be surprised if the rep you talked to got canned a while ago. What they did is pure stupidity.
Re:Autodesk will lose (Score:3, Informative)
Re:Autodesk will lose (Score:1, Informative)
Here is a quote:
In 2005, Mr. Vernor purchased an authentic, used AutoCAD package1 at a garage sale and put it up for auction on eBay. Autodesk responded by sending a Digital Millennium Copyright Act (âoeDMCAâ) notice to eBay claiming that the sale would infringe its copyright. EBay suspended the auction. Mr. Vernor responded with a DMCA counter-notice claiming that his sale was lawful, to which Autodesk never responded
Re:Autodesk will lose (Score:2, Informative)
I have the inalienable *right* to sell my old unwanted CDs, DVD, or disks.
You are using the word inalienable incorrectly.
http://dictionary.reference.com/browse/inalienable [reference.com]
-adjective
not alienable; not transferable to another or capable of being repudiated: inalienable rights.
There are some rights you cannot be understood to have repudiated or transferred by contract, such as self-defence. Even if you sign a contract saying you won't defend yourself a court will still uphold your right to do so. Second hand selling is not like that. You have a right to do it, but it's not an inalienable right. If you were to sign a contract "I give up my right so sell this product second hand in return for a lower purchase price" for example, you could be held to that. If every right was inalienable, contracts would be impossible.
Re:Autodesk will lose (Score:3, Informative)
It would depend on how you classify damages. It may be that the cost of listing the item is the only damages. However, lets say something happened and the market value dropped during the time it was down. That loss is a damage that was originally covered by the DMCA protections that wouldn't be if they didn't honor the counter claim notice.
Listing software is a little difficult to explain on this provision. It's there but it also pertains to any copyrighted works so software would definitely be included. An example might be where you have a book for sale that is out of print and while the book was off line, the publisher announced a reprinting of the book and free distribution as some promotion to a sequel. Or lets say you were reselling a software program and the publisher announced an updated version for half the price. In both of these examples, if you can convince a judge or jury that your sale price was damaged by them taking the item off the web, you may be able to get Ebay to compensate you for the difference.
Another and more apt example, let say you made a fair use parody of some book or published your research on inorganic human elements or something. The hosting service takes your paper down because of a DMCA and they do not honor the counter claim. Before you can get another site up and running, a competitor publishes something comparable and takes the credit for your concept. IF you can convince a judge or jury that your work had value and that value was harmed by the service providers actions, then the service provider can become liable for that harm if they do not follow the counter notification procedures.
Another and probably a more obvious example might be, suppose you operated a pay site for rare information and leads in a database like environment. You use a Wikipedia type editing system so companies can add information and it can be shared between all subscribers of your service. Now suppose someone issues a DMCA take down notice because their database has similar information and they think yours is a copy of theirs. (forget the validity of the information for now). You file a counter notification but the ISP ignores it and maintains the disabled access and you can't even get to the information to port it to another network not to mention the costs of reprogramming all the client interfaces to access a different database store. The ISP is no longer protected from your loss of revenue or costs of changing the system over or reprogramming all the client connections. If they honor the counter claim, the law shields them from any of that. If they do no, then they have no legal shield.
Re:Autodesk will lose (Score:2, Informative)
Ownership of self and one's possessions (i.e. stuff you acquired through your body's labor) is NOT transferable.
Ownership of a particular possession is transferable. Selling is a transfer. You don't give up your right to own possessions but you are transferring your ownership of a possession to another. Since you are able to abandon or give a possession away it is definitely alienable.
Why the hell would I want to do that? I would no more do that than I would sell myself into perpetual slavery.
For a benefit offered to you by the original seller. If they offered it to you at half price on the condition that you may use, destroy or return it but not resell that would certainly be a valid contract, since you had transferred your right to resell for a financial benefit.