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September 30, 2009
Autodesk, eBay seller suit could impact sales of secondhand software
DMCA ignites questions over copyright of old software CDs
By Nancy Gohring
A judge Tuesday heard arguments in a dispute over software sales that could potentially have repercussions on the secondhand sale of virtually any copyright material.
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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 licences the software, rather than selling it outright, a licensee does not have the right to resell its products.
"The deal between Autodesk and the licensee is [that] you pay us for the software and you're not going to be able to sell it on the used market," Michael Jacobs, an attorney with Morrison and Foersters who is representing Autodesk, said in court Tuesday.
If the court sides with Vernor, the fundamental economics of Autodesk's business will be upset, he said.
While Jacobs acknowledged that this isn't a case where software was illegally copied, he argued that the end result is similar. That's because the original owner of the software can continue to use the software while the original CD is resold to someone else, without Autodesk profiting from the second sale.
In fact, Vernor originally bought the software from someone else, so Autodesk also argued that Vernor had unlawfully acquired it, because the software licence did not give the original owner the right to sell it to him.
Vernor's lawyer responded that while Autodesk can call it a licensing arrangement in which it retains title to the software, in reality it is selling a product that an end-user then owns.
"There's no way for Autodesk to control the software once it's in the stream of commerce. The particular copy of software gets full value up front. Autodesk doesn't ask for periodic payments," said Greg Beck, a lawyer from the consumer advocacy group Public Citizen who is representing Vernor.
He drew a parallel with copyright books. Most books include the line "all rights reserved" in the front. That means someone who buys the book can't make copies of it or read it as a dramatic performance to a crowd.
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Comments received
Ron said on Wednesday, 30 September 2009
Of course no one responded to your request for comments, this was decided over a year ago http://arstechnica.com/tech-policy/news/2008/05/court-smacks-autodesk-affirms-right-to-sell-used-software.ars
So much for breaking news.
artic said on Wednesday, 30 September 2009
way to drop the ball CW
Dan said on Wednesday, 30 September 2009
Unless, of course, Autodesk got that verdict tossed. According to that Ars article the judge did admit there were conflicting precedents...
Dulac said on Wednesday, 30 September 2009
The diference between a tyrant and legitimate laws (accepted means of necessary society regulations) is FAIRNESS... Plain and simple!
And when laws are controled by interests ignoring fairness, society becomes a field for every kind of mafias, specially when "registered" is confused with "legitimate".
Actually... any enterprise is ONLY a virtual entity that is ONLY acceptable as long as it SERVES real people that constitutes society.
It is a very bad sign to see the priorities subverted and virtual entities as more important than real people (they should serve)... whatever the arguments used to achieve such subversion of principles.
Crap said on Wednesday, 30 September 2009
So now we know. Next time, give away the CD, but charge $$$ for the legit serial #. Those are just "random numbers" and you can't copyright those. I guess you can copyright those if you wish, but you would have to publish those numbers for everyone to see!
Or just give the software away and charge a ton for shipping.
Gaspar said on Wednesday, 30 September 2009
@Dulac
Not only is your statement vague, rambling, hard to understand and only loosely related to this article, it is poorly written.
Next time can you wait five minutes and re-read what you have jotted down? I assure you, once you have taken a second look your arguments will work much better...
Crash&Burn said on Wednesday, 30 September 2009
http://www.cadcourt.com/Docket/207cv01189.aspx
>> 69 9/17/2009 Court | Notice of Hearing on Motion
>> 70 9/28/2009 Court | Motion Hearing
Recent activity in this case, which has seen 20+ different motions by related parties since July.29th 2008 - which resumed that October (2008).
DuLac said on Wednesday, 30 September 2009
The position of FORCE created by the usage of serial numbers CANNOT be confused with LEGITEMACY.
It is only an expression of the old binomium:
- The reason of force vs the force of reason.
The power to force a situation is not an evidence of legitemacy. If it were, then kidnaping would be a way to make a point (an extreme comparison)...
This to show that argumentation based on the power to force a situation is NOT a way to legitimize it.
And nether is the split of a clean situation with new situations used to confuse reasoning (a common strategy).
If a safe has a key... then its key is sold with the safe. Not confusing at all. And if the key is sequestered... then the entity forcing such situation MUST allow the change of the owner or be punished by forcing undue situations by force, not reason.
Plain and simple.
While auto-protection is a fair practice, using that right as argument to get unfair extended capabilities is ... abusive!
Anthony Castanza said on Wednesday, 30 September 2009
First-sale doctrine. Period. End of Story. There is absolutely no reason why that shouldn't apply to software, any company that disagrees with that should go bankrupt and die.
gnerd said on Wednesday, 30 September 2009
I can't believe there was no mention of First Sale Doctrine anywhere in this article. SCOTUS routinely upholds FSD, and it applies perfectly in this case.
rock alien said on Wednesday, 30 September 2009
don't worry, the corporate, er, supreme court will surely repeal DuMbCAca and so, forever solve all those "you can't own what you buy' arguments.
Ray Buckland Sr said on Wednesday, 30 September 2009
I think this a a crock of Bull Shit, I guest the same thing would apply to car's, homes, and any thing you buy, if you go to Wal Mart and buy something do they really have the right to SELL IT? what this group is saying if you bought it we still own it. well at that rate we own nothing and I bet you equipment they own they don't own eather so where does it STOP? BS... If they win it's going to get worst what do we own?
Concerned Citizen said on Thursday, 01 October 2009
Yes, the license says this and maybe Mofo will help them win this case. But it might not be the best outcome for Autodesk.
It is most likely they would make more money letting people resell old versions for a discount price -- to customers who can't afford to pay full boat for the product and are happy with last year's model. A nice upgrade path and mechanism for registration and voila, more revenue from people who couldn't afford to be your customers before.
perkinsdesign@hotmail.com said on Thursday, 01 October 2009
Ebay is evil. They just removed a listing of mine that contained used CDs and DVDs even though they were originals and I bought them and owned them. I just never listened to or watched them so I thought I would sell them. The original manufacturer objected and BAM! ebay cancelled my listing. So what next? I can't sell a used car or a used book? Or a used painting or photograph?
Pastychomper said on Thursday, 01 October 2009
@ Perkinsdeign: What was the name of the original manufacturer? I'd like to know who to avoid.
b.j.fereday said on Thursday, 01 October 2009
It has always been difficult to see how America and the West can purport to be Capitalists when they in-force this type of Licensing. Capitalism is based on the existence of "severable property" enabling the creation of a market which then informs other prospective producers. Lazy companies like to milk old products and patents rather than come up with new stuff. Someone will soon suggest that all products are only licensed enabling manufacturers to be paid many times over. (But I have all ready patented that idea!)
Given that the licence holder could use this product for another 20 years perhaps Autodesk should refund him for giving it up now as say an insurer would.
b.j.fereday said on Thursday, 01 October 2009
It has always been difficult to see how America and the West can purport to be Capitalists when they in-force this type of Licensing. Capitalism is based on the existence of "severable property" enabling the creation of a market which then informs other prospective producers. Lazy companies like to milk old products and patents rather than come up with new stuff. Someone will soon suggest that all products are only licensed enabling manufacturers to be paid many times over. (But I have all ready patented that idea!)
Given that the licence holder could use this product for another 20 years perhaps Autodesk should refund him for giving it up now as say an insurer would.
b.j.fereday said on Thursday, 01 October 2009
It has always been difficult to see how America and the West can purport to be Capitalists when they in-force this type of Licensing. Capitalism is based on the existence of "severable property" enabling the creation of a market which then informs other prospective producers. Lazy companies like to milk old products and patents rather than come up with new stuff. Someone will soon suggest that all products are only licensed enabling manufacturers to be paid many times over. (But I have all ready patented that idea!)
Given that the licence holder could use this product for another 20 years perhaps Autodesk should refund him for giving it up now as say an insurer would.
B Sandman said on Tuesday, 27 October 2009
What if a company goes bankrupt and you take over licencies?