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."
Autodesk will lose (Score:5, Interesting)
Vernor absolutely has the right to resell his CD, due to a well-known section of copyright law known as first-sale doctrine [wikipedia.org]. 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 [wikipedia.org] 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.
Re:Autodesk will lose (Score:5, Interesting)
I had a stupid shithead company do that to me when I tried to sell my DVD of "Hunt for Red October". For some reason they kept telling Ebay I was selling an illegal copy, even though it was clearly storebought. Ebay stupidly listens to these companies, so I eventually moved my selling over to Amazon. Way to shoot yourself in the foot ebay.
They sold him a CD, not just a license (Score:4, Interesting)
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.
Re:Autodesk will lose (Score:4, Interesting)
I thought that if you just send them a counter-notification then the burden of proof is on the party who wants it removed.
Re:Autodesk will lose (Score:5, Interesting)
I am curious why this is not also a violation of the first sale doctrine. If I am allowed by law to sell a copyrighted work which I have legally purchased, Autodesk should not be permitted to implement a system which takes this right away.
I would also like to know if there is any legal case to made that Sony and Microsoft should allow for some way to resell downloadable games which have been purchased on a console.
Re:Autodesk will lose (Score:5, Interesting)
There's apparently a bunch of confusion in the courts here. There are other cases on the same page (the first-sale doctrine [wikipedia.org] page) that ended with first-sale being upheld even though the EULA said the user had to give up that right.
Personally, I think that software publishers should not be able to legally disallow first-sale like that. If they could, the same could be done with, for example, books, and resale could be completely prohibited just by saying "this book is licensed not sold; your license prohibits you from reselling the book."
Wouldn't that be a boon for book publishers?
Re:The guys lawyer (Score:5, Interesting)
Re:This case is already over (Score:4, Interesting)
Re:Autodesk will lose (Score:1, Interesting)
This is going to be an issue that will become more and more important. It wasn't as much of an issue in the past because the copying of music, books, etc. was not an exact replica. In the digital age when perfect digital copies can be made (MP3s), that value of a copy is the same as the original so the effort to make copies can be much more profitable. There should be a balance between the right of intellectual property creators to earn profit on their ideas but there should also exist a right of a culture to be able to have access to current ideas, trends, etc. See Code 2.0 by Lessig chapter 7 for a more insightfull view of copyright law in the digital age.
Re:Autodesk will lose (Score:3, Interesting)
Vernor absolutely has the right to resell his CD, due to a well-known section of copyright law known as first-sale doctrine [wikipedia.org].
Except that Autodesk is claiming that they never sold him anything, they sold him the right to use it, which is an important difference. The difference is an explicit attempt to bypass consumer protections such as first-sale doctrine; hopefully the Judge sees that and throws it out.
Copyright and licensing (Score:2, Interesting)
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.
Re:Autodesk will lose (Score:5, Interesting)
You do realize that the case that established the first sale doctrine was exactly what you describe, a book publisher attempting to control resale price of their book through a license page. It's even linked from the wiki article you posted: http://en.wikipedia.org/wiki/Bobbs-Merrill_Co._v._Straus [wikipedia.org]
It blows my mind the legal gyrations they must go through to rationalize why this is not acceptable for books but a-ok for software.
Re: Licensed books (Score:5, Interesting)
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.
Unfortunately, no... (Score:2, Interesting)
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.
Re:This case is already over (Score:3, Interesting)
Re:Autodesk will lose (Score:5, Interesting)
Ebay is setting itself up for a lawsuit. The DMCA protections require the service to restore the content on a counter claim in order to gain protections against damages from the copyrighted materials being removed.
They aren't obligated to restore it, but when they do not, they lose that protection. The idea is that if there is a challenge, then the courts and not the provider will work it out.
Re:Autodesk will lose (Score:3, Interesting)
Re:I'm sure they've got a Plan B (Score:3, Interesting)
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.
funny (Score:5, Interesting)
Autodesk's site has a tab to PURCHASE the product but not one for licensing. hmmm thats odd !!
Re:Autodesk will lose (Score:3, Interesting)
Yeah, unfortunately eBay will pretty much always follow through on a requested auction takedown from a content producer. They just don't want to be involved in their lawsuit.
eBay's business is in the second-hand sale. They have a strong interest in this practice to be legal.
You would think so. I tried to sell an "R4" cartridge for the Nintendo DS on ebay. It allows you to run homebrew software, play music, and watch movies on the DS. But because it *can* be used to run pirated software, ebay claimed my item violated the DMCA, canceled my auction, and threatened to pull my account if I relisted the item.
Interesting (Score:5, Interesting)
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...
"never bought..." (Score:5, Interesting)
Re:Autodesk will lose (Score:4, Interesting)
And conveniently enough, eBay's TOS allows them to delist any auction for any reason, and likewise to ban any user they see fit.
So if someone accuses you of infringement, you're screwed. Even if you do a counter-notice, eBay is under no obligation to let you back in.
Specialized Market vs. Mass Market (Score:2, Interesting)
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.
Re:Autodesk will lose (Score:4, Interesting)
Really? Why don't you try to sell your legal copy of Rosetta Stone on eBay, and let us know how that works out for you. BTW: you might also want to look into the Apple v Psystar case.
There is a substantial difference between the two cases. Vernor used to (don't know if he still does it) buy copies of software cheaply, and then sold them on eBay. He didn't use the software, he didn't install it, he took the box that he bought and sold it on. The buyer has all rights and license obligations that he would have if he bought from Autodesk correctly. In the Psystar case, if Psystar bought boxes with MacOS X and sold them on and didn't do anything else, Apple couldn't do anything about that for the same reason. Of course they do a lot more; they even admitted creating a master copy that is installed on all computers they sell.
Say you have a Dell computer and you mention that you would like to run MacOS X on it, and somebody buys a box with MacOS X as a birthday present for you, first sale doctrine first allows them to give the box to you. You then don't have the right to install it on your Dell computer, because the license doesn't allow it, but you have the right to sell the box on eBay, and the buyer can then install it on a Macintosh but nowhere else.
The judge in Vernor vs. Autodesk also managed that it looks quite likely that some people selling their Autodesk boxes to Vernor had been in violation of their license agreements, but that had nothing to do with Vernor, and Autodesk would be free to sue those people. For example, if someone bought an upgrade to Autodesk at a reduced price, and then sold the old version to Vernor.
Re: Licensed books (Score:4, Interesting)
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.
Re:No used car? (Score:3, Interesting)
Re:Autodesk will lose (Score:3, Interesting)
Otherwise the place would be 99% full of copied, stolen software.
How, exactly, do you come to that conclusion? GPP said that eBay doesn't even look to see if there is any evidence that the product for sale is illegal -- eBay just shuts down the auction. If the content producer has evidence that the product is "copied [and/or] stolen", then yes, that's a good thing. However, if the auction is for a legally purchased item that the seller just didn't like, then what right does the content producer have to shut down the auction? What if the item is out of print? Do you seriously think that the only place we should be able to purchase software, music or movies is from authorized retail stores -- no secondhand sales? What do you think that would do to prices? No, this is most definitely NOT a good thing. Your argument that eBay would otherwise be a warez market is pure bunk.
Either you limit resale, or you limit copying.
Or you all get jobs as bricklayers.
Choose.
That's a false dichotomy. There will always be those who have no ethics. However, there will also always be those who do, and for better or for worse, those who try to live ethically will continue to subsidize content production. You are making a really huge leap of logic (illogic?) between limiting content and putting content producers out of business. Think of it this way...(warning: bad /. car analogy coming up!) would you buy a car if you knew that you would never, ever be able to sell it to someone else when your needs changed, when you wanted to upgrade to a newer, more reliable model, etc.? Part of how we justify the purchase price of a new (or used, but new to us) vehicle is knowing that we will recover some of that cost at resale. While there certainly is a quantitative difference between the purchase price of a car and the purchase price of a CD or DVD, I am nevertheless more likely to purchase a CD/DVD/software knowing that if I am unsatisfied with what I have purchased, I can easily sell it on Amazon/eBay/Craigslist/whatever. Or on the flip side, I might take a chance with an unknown artist by purchasing a sufficiently low priced secondhand CD, find I really like the artist, and then buy more NEW CDs, when otherwise, I might not have bought anything by them. In either case, I would argue that limiting resale might actually harm first sales because I am less likely to purchase something if I am afraid I might get stuck with something I am not be happy with.
Re: Licensed books (Score:3, Interesting)
Re:Autodesk will lose (Score:3, Interesting)
I wonder why I selected Montana as my example?
The ATF issued a statement [examiner.com] to Montana FFLs reminding them of their obligations to the Federal Government under their licenses. I expect a test case to come from a non-licensee, if one ever comes, and for that non-licensee to end up in a Federal prison.
Re:Autodesk will lose (Score:3, Interesting)
Lets say I want to legally sell product X. A take down notice is issued and product X is delisted after a number of bids. I file a counterclaim and it doesn't go back up. I switch to say yahoo auctions (if it still exists?). Someone bids half of what the high bid on ebay was and it sells. I decide that ebay has now interfered with my business of selling second-hand goods. I think I might be able to make a case for liability.