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eBay Seller Sues Autodesk for $10 Million
Posted by
CowboyNeal
on Thu Sep 13, 2007 08:21 PM
from the autodesk-resellers-hold-their-breath dept.
from the autodesk-resellers-hold-their-breath dept.
Miasik.Net writes "A lawsuit has been filed in Federal Court (US District Court for the Western Washington District C07-1189 JLR) that alleges Autodesk, Inc maker of the industry standard AutoCAD software and their attorney Andrew S. Mackay have devised an illegal scheme to have used copies of their software removed from the eBay site using the Digital Millennium Copyright Act. Finally someone decided that non-transferable licenses must be stopped." While proving $10 million in damages might prove difficult, the reasoning behind the case is pretty sound.
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New10k writes "Following up on a recent Slashdot discussion, nonprofit consumer advocacy group Public Citizen has agreed to provide an attorney to eBay seller Timothy S. Vernor, who is suing Autodesk in federal court over misuse of the DMCA to stifle competition. The advocacy group has identified elements of the Vernor case as some of its key litigation priorities for 2007. The article includes an interview with Vernor's new lawyer, Greg Beck, who was a software engineer for Microsoft before going to law school."
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California Bar Investigations (Score:5, Insightful)
A far more relevant statement would have been:
Furthermore, the plantiff lacks standing. In the state of California, to sue for fraud, party A must alledge that party B defrauded party A. If A claims that the money comes from C, then he has no standing to sue, even if his statements are correct.
Re:California Bar Investigations (Score:4, Informative)
Re:California Bar Investigations (Score:5, Informative)
New business model (Score:5, Funny)
2) Copy onto hard drive
3) Re-sell on eBay
4) Profit!
Easy enough for me!
Re:Fixed! (Score:5, Funny)
Re:New business model (Score:5, Interesting)
Interesting how similar this story is to this one [slashdot.org], from a while back, about restricting the sale of used CDs. In both cases you have the manufacturer wanting to restrict the first sale doctrine's rights in order to sell more of their product.
Actually, now that I think about it, I use some high-priced manufacturing software that, IIRC, states much the same thing: you don't own the software (nor the hardware dongle required to run it); it is all property of the manufacturer. There was even a clause in there about selling used software - they stated that you were allowed to do it, but it had to be for a specified amount, and they got a fee out of it. It all sounds fairly bogus to me.
Re:New business model (Score:5, Interesting)
> but it had to be for a specified amount, and they got a fee out of it.
Not really, sound pretty fair. You see, you ARE allowed to resell software and AutoDesk is going to get smacked in court but support and upgrades aren't part of the First Sale Doctrine. By your vendor specifying a procedure and fee to transfer ownership of the license along with the title to the copyrighted work it means the buyer gets upgrades, bug fixes and the same level of tech suport you have now. If the fee is reasonable it would be very fair, especially when dealing with specialized software that needs support.
Re:New business model (Score:5, Interesting)
Aww fuck I though, I should have left California a long time ago.
Re: (Score:3, Interesting)
Re: (Score:3, Funny)
A lot of places liked the dongles because license management was easy. They got passed
Re: (Score:3, Interesting)
Re: (Score:3, Insightful)
I don't think... (Score:5, Funny)
The price of justice. (Score:3)
lawyers bother taking on lawsuits under $10 million these days - they can't make enough money
It's sad that justice is only available to people with millions of dollars to burn. Autodesk is sure to run the costs of this trial into multiples of that amou
The question (Score:5, Interesting)
1) Does the seller have the "burden of proof" to prove that he uninstalled his copy and is not violating his license or
2) Is the seller to be given the "benefit of the doubt" and assumed to have uninstalled his copy, unless information is found to indicate otherwise?
note: I am probably using legal terms like "burden of proof" incorrectly. but you get my question.
Re:The question (Score:5, Insightful)
1) Does the seller have the "burden of proof" to prove that he uninstalled his copy and is not violating his license or
Guilty until proven innocent?
2) Is the seller to be given the "benefit of the doubt" and assumed to have uninstalled his copy, unless information is found to indicate otherwise?
Innocent until proven guilty.
So which one is applied by the modern court system?
Re:The question (Score:4, Informative)
Re: (Score:3, Informative)
Criminal: #2
Civil: #1 is closer than #2 but only by 2 percentage points.
In most civil trials the plaintiff only has to prove a preponderance of evidence. [wikipedia.org] Which (kind of) equates to about 51% or greater possibility of the
Re: (Score:3, Interesting)
Re:The question (Score:4, Interesting)
This is very similar to selling your used music CDs and movie DVDs. You don't own the contents, but you own the media.
IT's about time that some stands up for First-sale (Score:5, Insightful)
Re: (Score:3, Informative)
Vista is better with this and can fall back to generic driver to try to boot up.
And ghost was b
Re:IT's about time that some stands up for First-s (Score:4, Informative)
Microsoft's solution? Vista won't run under virtualization.
There's plenty of real things about Vista to bitch about, so stop making shit up.
Motorola does this too. (Score:5, Insightful)
Motorola had their legal dogs tell eBay to cancel my auctions because they violated their "VeRO" program policies. The "VeRO" program is for people violating someone's IP rights or the DMCA. They would have a legitimate claim if I was selling knockoff items or bootleg copies of their software which is what the program is for, so the manufacturers or IP holders can ask eBay to take down their auctions.
Well, the asshats at Motorola are sour on the fact that their stuff is getting sold for cheap on the 'bay, so they are using the IP/DMCA shit as a front to have the eBay folks try to kill the after-market. When I investigated why they did this, of course they quoted to me all kinds of "law enforcement only" bullshit, and even invoked the "T" word (yes, TERRORIST!!) - total bullshit! Naturally, not wanting to get hauled away and locked up in some foreign jail or GitMo, I didn't make waves about them canning the auction, but I really thought that sucked extra hard, hiding behind false claims of IP to prevent an after-market sale.
Posting anonymously for obvious reasons...
$10 Million seems right to me... (Score:5, Insightful)
I see nothing wrong with the $10 million figure. Companies have used the DMCA to try to recover "damages" of ridiculous proportion in the past (RIAA as our most favorite). Why shouldn't the DMCA work for consumers in the same fashion? In which case, the $10 million figure seems just as "reasonable"
I hope the guy wins all $10 million... perhaps the companies who lobbied for the ridiculous penalties that got included in the DMCA will think the next time they lobby for such laws.
Re: (Score:3, Informative)
Shrinkwrap License (Score:5, Funny)
I apologize that this EULA isn't 50 pages long, and can be understood by a human being, but I'm not a real lawyer.
If he wins I'll put my Architecture 2008 up (Score:3, Interesting)
Now, AutoCAD does have the potential seller by the short hairs, since they can deny any future upgrade pricing, but since I know lots of shops who upgrade every 4-5 years, and AD phases out any upgrade discount by then (you can pay $800/yr for maintenance, or $800 x n years since your last version to upgrade; sweet, huh?).
I just know that at this point, I've got a $4000 piece of software in which I only use $800 worth of functionality. How do I know? Because the rest of my licenses are ACAD LT, and they work just as well for what we do as the Architecture.
Software should be a valuable asset (Score:5, Insightful)
I am constantly amazed that so many people put up with software companies wanting to sell you their software for lots of money and then you can't do anything with it when you don't want/need it anymore. What the heck are you supposed to do, buy an extra plot at the cemetary and when you die they'l bury it there next to you?
Imagine if it were that way with your old dishwasher, or your car. "You can get a new car, but you have to keep the old one out back. You can't sell it, ever".
Outrageous.
When people put their foot down and demand ownership of expensive items, or else if you don't own it you should be paying dramatically less for it, this will all change. I'd offer Autodesk $19 for their software, if I don't own it. It can't be worth much more than that. You don't own it, remember?
I heard a story about a company that was bought out by another company, and one of their software providers wanted them to buy the software again. Same desks, chairs, computers, people, building, and software. But the software, that couldn't be "sold".
Outrageous. Any expensive asset should be just that, an asset.
Re:Software should be a valuable asset (Score:5, Insightful)
But instead of Congress trying to sell consumers on schemes like net neutrality, perhaps they could pass a few laws that would, y'know, actually make the marketplace work a little better:
1 - If you can subscribe to something over the Internet, you have have to be able to cancel over the Internet. We'll call it the "Able tO canceL" act, or AOL act for short.
2 - Make software vendors print the license agreement on the outside of the box, or make it available on the web site as BEFORE purchase.
3 - Better yet, publish a few "standard" commercial licenses with various terms, and allow vendors to just specify, say, "US Type 7 Consumer License," so you wouldn't have to read each one. And vendors wouldn't have to hire a lawyer before they could sell something. Too good an idea to ever be enacted, unfortunately.
where to find used software? (Score:3, Funny)
Re:where to find used software? (Score:5, Funny)
Re: (Score:3, Informative)
It's funny cause (Score:3, Interesting)
ebay does this with TONS of companies (Score:3, Informative)
Ostensibly this is to prevent pirated goods (fashion items, Foakley sunglasses, etc.) from showing up, but you can buy a GENUINE designer handbag at Macy's, sell it on eBay, and the company will have your auction taken down despite your having every legal right to sell that GENUINE item.
This has nothing to do with law, and nothing to do with the DMCA... its simply eBay policy, part of their VERO program.
Re: (Score:3, Insightful)
This has nothing to do with law, and nothing to do with the DMCA... its simply eBay policy, part of their VERO program.
Genuine or not.
Maybe that's why the guy in TFA is suing AutoDesk and not eBay.
Ebay was so awesome before.. (Score:5, Funny)
The Internet used to be a frontier, man.. Now I gotta grow my pot.
Non-transferrable? My ass. (Score:3, Insightful)
In professional circles, Autodesk is Big F*cking Money. Meaning you pay to play, or you don't play, at all. They're vastly worse than Adobe in that respect, though Adobe is definitely taking cues.
In the context of the license as my coworker understood it, you were "licensed" for one seat on defined hardware. In MY opinion, if you sell that hardware (and the software), you sell that license with it. Since Autodesk - on paper- won't f*cking LET YOU transfer that license to new hardware - even if it's the same box with a new vidcard - WHY are they shitting on licensed users for selling off kit with a software license they can't - technically, legally - transfer?
Forget google, forget Adobe, forget Microsoft - Autodesk is the real Software Evil.
Hope he wins... (Score:3, Interesting)
Autodesk sucks. Stear clear. (Score:3, Informative)
If you need a good 3D programm and Blender doesn't offer enough industry compliance I recommend Lightwave. Affordable, an insane amount of features, an impressive feature production track record and a high profile industry standard throughout the world. AFAICT it has the most widespread use in the industry. LW does come with a dongle, but at least Newtek (LWs producer) doesn't act like a bunch of dickheads. I bought a used LW licence from a guy on Ebay and they transferred it without a hassle and even did a cheap upgrade for me allthough I wasn't entitled.
Bottom line:
Blender and then Lightwave for all things Blender doesn't handle well (or not at all). And stay away from Autodesk.
Re:So, their attorney is an idiot or... (Score:5, Insightful)
Re: (Score:3, Informative)
The legal experts on Slashdot... (Score:4, Insightful)
For example, from the main post:
Hmm, yes. And the legal basis as to why the reasoning is 'sound' is...?
I'm not saying this is a baseless suit. But it's funny how everyone around here (99% computer/tech geeks of some flavour or other) is able to deduce why it's 'plainly' legally correct or incorrect to do whatever suits the common agenda here (free IP good; big companies bad; little guy good; etc etc etc).
IAAL. Newsflash: legal work is hard. Lawyers get paid a lot partly because legal issues are often very complex and challenging. You cannot determine whether something is 'sound' or not based on 4 minutes of absent-minded evaluation.
Re:The legal experts on Slashdot... (Score:5, Funny)
For example, from a recent incident at a law office:
Hmm, yes. And the technical basis as to why expecting 50-fold scalability is 'workable' is...?
I'm not saying this is a baseless assumption. But it's funny how everyone around the law office (99% lawyers of some flavour or other) is able to deduce why it's 'plainly' technically correct or incorrect to throw whatever combination of the cheapest hardware and software available into the office and assume everything is going to do exactly what they want.
IAASE. Newsflash: systems development work is hard. Software Engineers get paid a lot partly because technical issues are often very complex and challenging. You cannot determine whether something is 'workable' or not based on 4 minutes of absent-minded evaluation.
Lawyers tend to be very difficult to work with. They tell everyone to be sure to hire a "professional" for every little legal matter under the sun, feel it's perfectly OK to charge exorbitant fees for every little thing, but think *never* need any help with their computer systems. When they do finally decide to seek advice, they hmmm and haw and ask stupid question after stupid question and then complain when they're told it's going to cost more than 50 bucks to fix everything.
Re:The legal experts on Slashdot... (Score:5, Insightful)
I see your point, but keep in mind that the law belongs to the people If it cannot be understood by a person of reasonable intelligence then it is intrinsically wrong.
As to why it sounds reasonable, see first sale doctrine [wikipedia.org]. The case law and legal opinions on the applicability to software are conflicting. Some (such as Autodesk) claim that they licenced a particular user to use the product. Others say that since it looks like a sale and acts like a sale, it IS a sale in spite of an after the fact EULA to the contrary.
To me personally, it looks like software vendors want to not only have things both ways but all ways. When I want to copy the media for legitimate archival purposes they want treat it like a sale of a particular CDROM. When I want to resell it, they want to call it a license to a particular person. When I want to move it to a new computer, or use it on more than one computer (but only one at a time) they want to tie the licence to a particular machine. That is, until I want to sell the computer and all of the software on it.
It looks like a duck, it quacks like a duck, and it swims like a duck. The software vendors would have me believe it's a zebra. Unless, of course, it is convieniant for me that it's a zebra, in that case they say it's a blue footed booby. Could it be that the software vendors are weasels?
Re: (Score:3, Interesting)
Keep modding him up (Score:5, Insightful)
The soundness of the argument is one you can take to "the man on the street" (which is why we have a jury of peers):
I bought Autodesk Software. Paid for. Signed, sealed, delivered. It's mine.
I no longer want to use this software, so I'm selling it.
Autodesk have tried to stop me selling it.
Right or wrong?
Wrong.
Simple. Sound. The *law* may say "ah yes, but the law here says..." and the response is "that was written to stop someone bootlegging millions of copies and selling them retail. Such a criminal may be able to get away with just 'selling bootleg materials' so you made a law making penalties easier to apply so that you could nail them. It wasn't written with someone selling their purchased copy no longer wanted".
Laws are argued for with "we need it to stop _this_" but never written with "this law is to stop _this_". And that's the illogical and (to the man on the street illegal) bit about the insane laws we have on books.
See how the DMCA was abused to stop someone making a garage door opener (try to explain why the DMCA would be written for this. Can't, can you. It was still used as an argument, though).
Re:The legal experts on Slashdot... (Score:5, Insightful)
This smacks of the sort of "you can't explain it, therefore God did it" arguments that Intelligent Design proponents use.
So, most of us are not lawyers. So what? We still have a pretty good sense of what is right and wrong, and knowledge of the basics and traditions. We're not stupid. Assuming the summary is accurate (not always safe to do, I know, but I trust some will be quick to point out inaccuracies) we can easily tell that Autodesk is in the wrong. And if the law says otherwise, then the law is wrong too. We have no problem with making changes to laws-- they weren't created perfect. The law is our servant, not our master. And, as we also know the average EULA isn't worth the paper it's written on, a simple quick statistical thought of "> 50% of EULAs are meaningless therefore odds are Autodesk's is too" is easy enough. We also know that too many in the profession have engaged in obfuscation, making contracts and law far longer and more complicated than necessary, in order to bury objectionable stuff in the fine print. In the 1980's, a contract for purchase of a house was 3 pages. Today, such a contract is more like 30 pages, and most of that is bull that didn't need to be spelled out. I'm talking bloat like "buyer agrees not to use the house for illegal purposes" followed by a long list of illegal purposes, and "buyer agrees to comply with all regulations and city ordinances" and a long list of same, down to totally petty stuff like "agrees to mow lawn regularly", and questionable stuff like "buyer agrees not to reveal any details of the negotiations such as price paid". You'll have to do better than that old "it's too complicated to explain" garbage if you want to convince anyone around here. The law is already in bad enough shape and repute thanks to trash like that. But there are good arguments buried in law and precedent. Try us. Trot some out.
Re:So, their attorney is an idiot or... (Score:5, Insightful)
God I'm just an armchair idiot and I can see the logic in it. If they sue for $4K or even $10K for being pains in the asses then Autodesk will just write it off as a business expense, change the EULA and give it another shot. On the other hand if they get bit on the ass with a $10 million judgement they'll think twice before pulling a stupid stunt like that again.
Re: (Score:3, Informative)
Unfortunately for Autodesk, that is pretty clearly not the case. The DM