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Company Uses DMCA To Take Down Second-Hand Software 488

Posted by Soulskill
from the what-i-sold-you-is-still-mine dept.
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."
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Company Uses DMCA To Take Down Second-Hand Software

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  • Autodesk will lose (Score:5, Interesting)

    by TheSpoom (715771) * <slashdot@@@uberm00...net> on Wednesday September 30, 2009 @11:39AM (#29594395) Homepage Journal

    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.

    • by commodore64_love (1445365) on Wednesday September 30, 2009 @11:42AM (#29594457) Journal

      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.

      • by TheSpoom (715771) * <slashdot@@@uberm00...net> on Wednesday September 30, 2009 @11:45AM (#29594503) Homepage Journal

        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.

        • by Xtravar (725372) on Wednesday September 30, 2009 @11:57AM (#29594739) Homepage Journal

          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.

        • by Pascal Sartoretti (454385) on Wednesday September 30, 2009 @12:33PM (#29595301)

          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)

            by jdcope (932508)

            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)

              by Bakkster (1529253)

              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)

            by AK Marc (707885)
            eBay's business is in the second-hand sale.

            Really? All I see on there these days are new items worth ~$20 selling for "$1, no reserve" with $30 shipping.
        • by sumdumass (711423) on Wednesday September 30, 2009 @12:57PM (#29595669) Journal

          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.

        • by shentino (1139071) on Wednesday September 30, 2009 @01:19PM (#29595991)

          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.

      • by samkass (174571) on Wednesday September 30, 2009 @11:59AM (#29594785) Homepage Journal

        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)

          by Entrope (68843)

          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)

          by tepples (727027) <tepples AT gmail DOT com> on Wednesday September 30, 2009 @01:11PM (#29595871) Homepage Journal

          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)

      by dkleinsc (563838)

      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

      • by Brian Gordon (987471) on Wednesday September 30, 2009 @11:55AM (#29594715)

        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)

          by s73v3r (963317)
          True, if someone files a counter-notice, then the only thing the party who wants it removed can do is sue the person. However, and this happens a LOT with YouTube, what the company will do is just issue another takedown request, and the site will usually comply with it. In this situation, the person can sue the company for sending that second takedown, but as was pointed out earlier, this is expensive, and most people won't be able to do it unless they get the ear of the EFF or ACLU.
    • by commodore64_love (1445365) on Wednesday September 30, 2009 @11:53AM (#29594663) Journal

      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

      • by TheSpoom (715771) * <slashdot@@@uberm00...net> on Wednesday September 30, 2009 @12:03PM (#29594839) Homepage Journal

        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?

        • 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)

            by commodore64_love (1445365) on Wednesday September 30, 2009 @12:31PM (#29595261) Journal

            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)

              by couchslug (175151)

              "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)

                by Lehk228 (705449) on Wednesday September 30, 2009 @07:50PM (#29600297) Journal
                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.
          • Re: Licensed books (Score:5, Interesting)

            by Stanislav_J (947290) on Wednesday September 30, 2009 @12:36PM (#29595373)

            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.

        • by QuoteMstr (55051) <dan.colascione@gmail.com> on Wednesday September 30, 2009 @12:26PM (#29595175)

          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.

          • by idontgno (624372) on Wednesday September 30, 2009 @12:36PM (#29595377) Journal

            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.

        • by thisnamestoolong (1584383) on Wednesday September 30, 2009 @12:35PM (#29595345)
          Illegal terms cannot be stipulated in a contract. If this were not the case, Microsoft could include in its EULA that if you violate the terms of service, Steve Ballmer will come to your house and kick you in the genitals until you die from it. After kicking your balls out of your mouth, Steve would be entirely free of liability because, hey, you clicked agree. Obviously, this would not be allowed. Taking this further, first sale is mandated by law, in the same manner that murder is. Thereby, a contract (or license agreement) that denies first sale would be invalid, regardless of whether or not you agree with it.
          • Re: (Score:3, Funny)

            by Zenaku (821866)

            Wait, murder is mandated by law? How many murders do I have to commit?

        • by modemboy (233342) on Wednesday September 30, 2009 @12:36PM (#29595351)

          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.

          • by sorak (246725) on Wednesday September 30, 2009 @01:41PM (#29596315)

            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.

            1. I go to my local store
            2. I grab a product from the shelves
            3. I pay for it, and take my receipt.
            4. Then when I try to use the product, I find that the terms have changed.
              1. I have to give up consumer protection rights. I am given a lengthy contract that denies any claim that the software is effective, or safe.
              2. If I do not agree to these new terms (which I feel should be illegal, UNLESS they are given to you as part of the transaction, at the store), then I cannot get a refund from the store. In effect, I just paid for the privilege of seeing a contract.
              3. I may be able to get a refund from the developer, but don't count on it. Even if the law says you can, it costs enough to get it enforced, that it is ultimately up to the company.
              4. If I refuse the terms of the agreement, this leaves me with one resort; sell the software, which I can legally do, because I never agreed to anything.

            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:

            1. Go to the cell phone model. If you want a copy of Halo 3, the person running the register is required to hand you the contract, and make you sign it, before the purchase is completed. If this is really a contract negotiation, treat it like one.
            2. Place the EULA on the packaging. If the current EULAs are too long for you to do this, then you need to rethink your EULA.
            3. Comply with existing consumer protection laws.
      • by Anonymous Coward on Wednesday September 30, 2009 @12:08PM (#29594895)
        Except in this case Vernor has never installed the software, never agreed to any EULA, and never clicked any 'I Agree' button.
      • by CopaceticOpus (965603) on Wednesday September 30, 2009 @12:39PM (#29595403)

        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.

    • by CopaceticOpus (965603) on Wednesday September 30, 2009 @12:00PM (#29594805)

      Now, the DMCA would allow Autodesk to, say, validate a CD key online once only and then deny future installs on other hardware.

      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: (Score:3, Informative)

      by Sloppy (14984)

      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 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

    • by Anonymous Brave Guy (457657) on Wednesday September 30, 2009 @12:07PM (#29594885)

      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)

      by _KiTA_ (241027)

      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.

  • There's legitimate software for sale on eBay?

    News to me ...

  • And we wonder (Score:3, Insightful)

    by netscan (1028690) on Wednesday September 30, 2009 @11:43AM (#29594473)
    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.
    • >>>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)

    by MBGMorden (803437) on Wednesday September 30, 2009 @11:44AM (#29594499)

    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)

      by Anonymous Coward on Wednesday September 30, 2009 @11:53AM (#29594653)

      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.

    • by Shikaku (1129753)

      Did he use car analogies?

  • 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.

  • by cookie23 (555274) on Wednesday September 30, 2009 @11:47AM (#29594551) Homepage
    • by Drakin020 (980931)

      What weird is in that link it says...

      "By Timothy B. Lee | Last updated May 23, 2008 12:21 PM CT"

    • by ccady (569355) on Wednesday September 30, 2009 @12:06PM (#29594871) Journal
      Not sure I grok the legal details, but the article you refer to is the original case, and the current article is about a hearing on how to proceed:

      The two-hour hearing, in the US District Court for the Western District of Washington in Seattle, was in response to motions for summary judgement filed by both sides. The judge can now rule for Vernor or for Autodesk or send the case to trial.

  • Hope they win (Score:5, Informative)

    by elrous0 (869638) * on Wednesday September 30, 2009 @11:50AM (#29594583)

    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?

    • by drinkypoo (153816)

      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

    • 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).

    • by Kamokazi (1080091)

      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

  • The interesting part is this bit from TFA: "Early last year the judge declined a request by Autodesk to dismiss the case."

    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.
    • by drinkypoo (153816)

      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.

  • by 192939495969798999 (58312) <info@noSPaM.devinmoore.com> on Wednesday September 30, 2009 @11:53AM (#29594667) Homepage Journal

    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.

  • by DoofusOfDeath (636671) on Wednesday September 30, 2009 @11:53AM (#29594669)

    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.

  • 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)

      by Talonius (97106) on Wednesday September 30, 2009 @12:03PM (#29594827)

      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.

  • by Voyager529 (1363959) <voyager529 AT yahoo DOT com> on Wednesday September 30, 2009 @12:00PM (#29594809)

    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.

  • by log0n (18224) on Wednesday September 30, 2009 @12:12PM (#29594945)

    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 :)

  • 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)

    by TRRosen (720617) on Wednesday September 30, 2009 @01:11PM (#29595855)

    Autodesk's site has a tab to PURCHASE the product but not one for licensing. hmmm thats odd !!

  • Interesting (Score:5, Interesting)

    by ratboy666 (104074) <fred_weigel@ h o t m a i l .com> on Wednesday September 30, 2009 @01:14PM (#29595899) Homepage Journal

    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...

    • by Reziac (43301) *

      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)

    by PPH (736903) on Wednesday September 30, 2009 @02:11PM (#29596711)

    ... 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)

    by EEPROMS (889169) on Wednesday September 30, 2009 @08:35PM (#29600605)
    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.

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