As has been reported in the news, a reseller on e-Bay was reselling genuine copies of used AutoCAD software, and was given, over time, cease and desist orders by Autodesk, makers of the software.
The man in question, Timothy Vernor, was buying copies of the software at yard sales, estate sales, and various other places, where he then would place the used software on e-Bay for sale. After a few notices to stop returned no results for Autodesk, the company went to e-Bay and Mr. Vernor was barred from selling anything.
As this was the only way he had been making a living, he sought legal help in his case. He was fortunate to find help in the form of the group Public Citizen, which helped him lay out his case that the sales were legitimate, rather than illegal as Autodesk had maintained. Autodesk denied the possibility of selling its software, as it stated that the software was licensed, rather than sold. This claim is directly against the concept of First Sale, which maintains the right of anyone to resell copyrighted works.
The First Sale Doctrine was first given by the Supreme Court in 1908 and has been codified into law since.
While this is a fantastic outcome for Mr Vernor, one wonders whether this outcome, in the state of Washington, where Mr. Vernor resides, will have any ripple effects.
from the article noting the decision
But as Vernor’s lawyers pointed out, the distinction between a lease and a sale is based on the actual characteristics of the transaction, not merely on how the transaction is described by the parties. And characterizing AutoCAD as merely licensed, rather than sold, barely passes the straight face test. AutoCAD customers pay a lump sum at the time of purchase, with no obligation to make further payments or to return the software at the conclusion of the supposed lease. Even more damning, Autodesk’s own website offers customers a variety of “purchase options” and the opportunity to “buy online” directly from Autodesk, with no indication that “buy” really means “license.” Similarly, online retailer CDW offers customers an option to “lease” AutoCAD as an alternative to purchasing a copy.
As the Electronic Frontier Foundation’s Corynne McSherry put it in a Thursday blog post, “if it looks like a duck and quacks like a duck, chances are it’s a duck.” Autodesk clearly sells its software, and merely re-labeling the transaction as a license doesn’t negate the First Sale Doctrine.
Vernor’s lawyers also noted that he had never opened the AutoCAD packages and installed the software contained inside. Therefore, to the extent the licensing agreements were enforceable, they were enforceable against the original owners, not against Vernor. And even if the license agreements did somehow bind Vernor, at most Vernor could be guilty of breach of contract, not copyright infringement, which makes the use of the DMCA inappropriate.
It will be interesting to see if this has an effect on software from another Washington resident. That company maintains that certain software is also licensed, yet the same test applied yields the same results. Does this also mean that a copy of Windows (any flavor that requires validation by server or person) could, in fact be sold, and that Microsoft would have to comply, giving the newest user of the software a key? There will be a test of this, no doubt.
This is the second case of this type in recent times. In the other case a person was selling ‘promo’ copies of CDs. That person got the same sort of cease and desist order, and the Digital Millennium Copyright Act was cited as bearing on the situation.
This other case is still awaiting its outcome, and should the DMCA be slammed once again, it will be a victory for common sense against the bad legislation that is the Digital Millennium Copyright Act.
also from the above article
If Jones’s* ruling is upheld on appeal, it will have important consequences for the software industry, where the legal fiction that software is merely licensed is widely employed. In addition to discouraging the market for used software, software firms have also attempted to use the “licensed, not sold” theory to enforce restrictions on reverse engineering that would otherwise be fair use under copyright law. If software is sold, rather than licensed, then no license is required to install and use the software, and the terms of shrink-wrap licenses may not be legally binding.
*Jones is the judge that rendered the decision
A victory would be not a ‘way to stick it to the man’ but a show of fairness, in an area where fairness, and common sense often don’t apply. On the other hand, a decision against big software companies might usher in a time of software sold only as a limited time service, with all the restraints, and bad code, that implies.
–
[tags] Digital Millennium Copyright Act, First Sale Doctrine, Autodesk, AutoCAD, e-Bay, software licensing [/tags]