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.
Re:Autodesk will lose (Score:5, Insightful)
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.
Re:Autodesk will lose (Score:5, Funny)
As someone in another forum put it so eloquently for me when ebay recently banned a completely legal herbal product:
ebay's like a really bad and inefficient parent. We weren't really doing anything all that bad, but ebay came home with a bad attitude and probably a little drunk. 15 minutes of bitching about the Jews and now somehow we're grounded from buying and selling X on ebay.
And then a week later ebay wakes up and forgets its hangover, remembers yelling about something, but completely forgot about X. Randomly sometimes ebay will smack an auction for back sass, then all the other auctions hide and change go under assumed names because ebay's so drunk it cant figure out the simple euphemisms.
Re:Autodesk will lose (Score:4, Insightful)
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.
Re: (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.
Re: (Score:3, Insightful)
I thought the issue with the R4 cartridge was that it circumvented the RSA check by the console. Reverse-engineering or bypassing copy-protection systems violates the DMCA. It might be bullshit, but it's still illegal enough that EBay won't touch it with a 10" pole.
Re: (Score:3, Insightful)
Really? All I see on there these days are new items worth ~$20 selling for "$1, no reserve" with $30 shipping.
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: (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
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.
Re: (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.
Re:Autodesk will lose (Score:5, Funny)
Hey, can I copy your comment to use as an example on the Wikipedia false dichotomy [wikipedia.org] page? It's a really good one.
Re:Autodesk will lose (Score:5, Funny)
You may have to write a new false trichotomy page to really let his comment shine.
Re: (Score:2)
Re:Autodesk will lose (Score:5, Insightful)
Anonymous shithead wrote:
good.
Otherwise the place would be 99% full of copied, stolen software.You would think that software developers here would see what a bad thing that would be for the entire industry.
Either you limit resale, or you limit copying.
Or you all get jobs as bricklayers.
Choose.
I'm sorry. What??? How is it acceptable that I was not able to sell my used DVD of "Hunt for Red October" due to takedowns? Sorry Mr. Anonymous but there is simply NO way you can justify that act. I have the inalienable *right* to sell my old unwanted CDs, DVD, or disks.
Re: (Score:3, Insightful)
it's not an inalienable right. It's a right limiting what you can do. Copyright is whatever congress says it is. At this time, congress allows for first sale. Congress can tighten it, or remove it and everything in between.
The copyright SPECIFICALLY limits rights.
Re:Autodesk will lose (Score:5, Insightful)
Only if you believe authority comes from Congress.
I don't. I think authority comes from the People first, the State Constitution second, the State Legislatures third, the U.S. Constitution fourth, and the United States/Congress dead last. Authority flows from the People downward. That said - as the final holder of authority, we the people still retain the right of resale.
i.e. If I convert my wealth from gold, silver, or dollars to a DVD, TV, or computer, I also have an inalienable right to convert that material wealth back to dollars via the open market. Congress was NEVER granted the authority to stop sales of used products. See the constitution- "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Also see amendment 10.
Re: (Score:3, Insightful)
eBay is not obligated to provide you with a place to exercise your rights.
And you are incorrect about what Congress can do. At least in practice. Try building your own firearm in, say, the state of Montana, and selling it to another resident of the state of Montana.
Re: (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:5, Funny)
Good luck with that montra
Quick! Montra is coming! We must wake Gojira!
Re: (Score:3, Insightful)
Property is anything you yourself can defend. Government is just an agreement between people to help each other defend one anothers things.
Re:Autodesk will lose (Score:4, Insightful)
The copyright SPECIFICALLY limits rights.
But wen I sell the original DVD/CD, I don't copy anything, so why should copyright apply at all?
Re: (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 i
Re: (Score:3, Informative)
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: (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.
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: (Score:3, Insightful)
Autodesk would probably lose due to the first-sale doctrine if this actually gets anywhere near a courtroom. As it is, the cost of Vernor proving that he has the right to resell his CD far outweighs the price he could get for it, so Autodesk is banking that he won't fight it. The really unpleasant part of the DMCA is that it puts the burden of proof on the party who wants to have the material up on the web rather than the party who wants it removed.
As with the parent, I'm not a lawyer, and this is not legal
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: (Score:3, Interesting)
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, 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: Licensed books (Score:3, Insightful)
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.
Re: Licensed books (Score:5, Insightful)
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.)
Re: (Score:3, Insightful)
"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 ma
Re: Licensed books (Score:5, Insightful)
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.
Re:The problem with "justice" (Score:4, Insightful)
Re: (Score:3, Insightful)
(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 saf
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: (Score:3, Insightful)
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.
Re: Licensed books (Score:5, Insightful)
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.
Re: (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
Re: (Score:3, Interesting)
Re: (Score:3, Insightful)
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
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:Autodesk will lose (Score:5, Insightful)
But the interesting thing about US jurisprudence is that "settled law" almost never is. All it takes is a few groundbreaking court judgments to reverse decades of precedent.
Sometimes that's good (see the history of civil rights litigation and criminal cases); sometimes it can be bad.
I don't know if this is the beginning of the end of the first sale doctrine, but I suspect there will be a case which historians will look back on and label that way.
And no, I'm obviously not a lawyer. A student of history, yes.
Re:Autodesk will lose (Score:5, Informative)
Re: (Score:3, Funny)
Wait, murder is mandated by law? How many murders do I have to commit?
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:Autodesk will lose (Score:4, Insightful)
I'm not defending them, but I think they could argue that, because software makes you explicitly take action, that it is a stronger contract, and something written within a book cover.
Of course, there should also be a burden of proof that the EULA was agreed to. If I had never owned a computer before in my life, and bought one today, then it would be perfectly reasonable for me to assume that a software transaction works in the following way:
1. I go to my local store
2. I grab a product from the shelves
3. I pay for it, and take my receipt.
But, the software industry slips in a few complications.
So, can AutoDesk prove that the original owner agreed to the EULA? Or are they just assuming this because they know that it isn't really "agreed to", so much as "dictated from the company to it's customers"?
I personally believe they should have three options:
Re:Autodesk will lose (Score:5, Informative)
Re:Autodesk will lose (Score:5, Insightful)
We need to call a duck a duck, and a sale a sale. If Autodesk gives the user rights to use the software, with no expiration date and no future payments required, that is a sale. They can't just call it "licensing" because they find it convenient.
EULAs are a separate issue. They are presented to the user after the sale has been made. They appear in a form which is not taken seriously by 99% of software users. They can be accidentally agreed to by the user's friend, by a cat, by bumping the space bar. They are a contract between two entities without any meeting or any witnesses. And finally, they are just silly. I don't know if there is a legal argument for this, but the idea that clicking on a button on your own computer screen binds you to anything is absurd. Imagine a book with a wrapper on it that says, "by opening this wrapper you agree to never resell this book." Any reasonable person would laugh at this and then do what they please with the book.
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:4, Insightful)
EULAs squarely fall under contract law. As such, a EULA a form of contract where the user enters into a non-negotiable, non-equitable contract. This fact is why many consider EULAs unlawful and in violation of contract law.
Re: (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
"never bought..." (Score:5, Interesting)
If they win, it's time to change the law (Score:5, Insightful)
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.
Re: (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.
Re: (Score:3, Insightful)
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.
Legitimate copies? (Score:2, Funny)
There's legitimate software for sale on eBay?
News to me ...
And we wonder (Score:3, Insightful)
Re: (Score:2)
>>>They made their money on the sale, go make something else to make more.
"But that's too haaaard." It's easier to just keep selling the same thing over-and-over-and-over. Look at my multiple copies of the Beatles White album - one on record, one on cassette, one on CD, and a few select songs in MP3pro format that stopped working when the store went backrupt, so I had to buy them again in AAC format from iTunes. RIAA says, "The downloaders are ripping us off." Oh really??? Not from where I si
The guys lawyer (Score:5, Insightful)
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.
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:The guys lawyer (Score:5, Interesting)
Re: (Score:2)
Did he use car analogies?
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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
The end of the story, so far seems to be... (Score:2)
Beck expects the judge to rule for one party or the other, and for the loser to appeal. Early last year the judge declined a request by Autodesk to dismiss the case.
That plus the summary seems to be about all there is to know at this point.
This case is already over (Score:4, Informative)
Re: (Score:2)
What weird is in that link it says...
"By Timothy B. Lee | Last updated May 23, 2008 12:21 PM CT"
Re:This case is already over (Score:4, Interesting)
Re: (Score:3, Interesting)
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: (Score:2)
With PC games, there basically is no buying games used. The PC software industry has been bullying sites like ebay for years.
They're not bullying Amazon, where you can buy a super-crapload of used PC games. I usually buy them new through Amazon though, because I buy old games and they're usually about the same price new as a good-quality used game with all the materials... because only recently have people begun buying many PC games in keepcases (from Wal/Kmart &c.) That will help bring up the market, I think. Regardless, people I know personally list their used books, games, movies, and music on Amazon and nowhere else. I su
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IIRC, there's actually case law regarding used sales/rentals of console games as opposed to PC software. (I don't remember the details off the top of my head though).
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Erm...I buy used PC games all the time from Gamestop (I've also bought several titles off eBay, so not sure where this 'bullying' kicks in)...even newer titles only a few weeks old..usually run $35-$40 for new $50 games. And I don't live in any major metro area, quite the opposite. So I am guessing your local Gamestop just sucks, or you didn't look very hard. I would think larger Gamestops and the other retailers that handle used games would have even better selections.
And it's not like they are all down
Re:Hope they win (Score:5, Funny)
I mean have you ever heard of a used book store?
Yeah, it's called a library.
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.
the interesting part (Score:2)
Autodesk didn't want this to go before a judge because they know exactly which direction it will go (hint: not in their favor). This may just be the EULA case we've all been waiting for.
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It's not the EULA case we've all been waiting for because contracts are already trumped by law, and this is covered by First Sale law.
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.
Mostly upside potential for us? (Score:3, Insightful)
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.
Used software (Score:2)
One ought to be able to buy used software for the value of thrift to those who ordinarily cannot afford it. This should apply to CDs, DVDs, Video Games, MP3 files, PDF books, etc. If the original owner does not want it anymore they can sell it for a reasonable price to someone else.
Now I can see stopping an eBay sale because it was an illegal copy, but that is hard to prove as the item is not always available for inspection and the CD or DVD case may have gotten lost and replaced with a different one.
There
Re:Used software (Score:4, Insightful)
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.
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*if you're not licensed to drive.
I'm sure they've got a Plan B (Score:5, Insightful)
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.
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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.
Bringing back the fiefdoms (Score:3, Insightful)
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 :)
licence & maintenance (Score:2)
something i don't understand
if i buy licence but not product
and this licence is time limited
why do i have to pay for maintenance ?
isn't licence a temporary right for me to use the product ?
in this case why would licence be detached from support & maintenance ?
funny (Score:5, Interesting)
Autodesk's site has a tab to PURCHASE the product but not one for licensing. hmmm thats odd !!
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...
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Don't feel bad -- we Americans are having trouble wrapping our minds around our laws too. This is why our lawyers all have minds like Klein bottles!
Perhaps ... (Score:4, Insightful)
... 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.
I think its time (Score:3, Insightful)
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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.
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You know, I thought this sounded awefully darn familiar [slashdot.org].
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