Autodesk claims it’s illegal under the DMCA to resell its software, that it doesn’t actually sell it to buyers, but rather licenses it to them.
Chalk one up to Autodesk for making copyright laws looking even more outdated than they already are for arguing in court that reselling legally purchased copies of its software is a violation of the Digital Millennium Copyright Act.
Timothy Vernor was accused by Autodesk, which develops expensive design and engineering software such as AutoCAD and Revit, of illegally selling its AutoCAD software on eBay back in 2007. His account was summarily suspended by eBay causing him to lose his “primary source of income.”
He then filed suit against Autodesk in federal court in Seattle seeking to “prevent Autodesk from engaging in further unjustified interference with his business, and damages for lost sales.”
The opening arguments in the lawsuit, Timothy S. Vernor v. Autodesk Inc., began yesterday.
Autodesk sells new AutoCAD software in a shrink-wrapped box that contains a “license agreement” that the company claims prohibits the purchaser from reselling the software.
“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,” said Autodesk attorney Michael Jacobs during yesterday’s opening arguments.
It argues that customers don’t actually buy the software when they purchase their products, but rather license it instead.
Autodesk License Agreement states as follows:
By opening the sealed software packet(s), you agree to be bound by the terms and conditions of this License Agreement. These are the only terms upon which Autodesk software products are licensed. If you do not agree to these terms, you may, within fifteen (15) days, return this entire package, including the unopened software packet(s), to the location where you acquired it for a full refund.
Vernor’s attorney Greg Beck of consumer advocacy group Public Citizen says it’s silly to suggest that Autodesk retains full control of the software after purchase being that it’s already bought and paid for in full and there are no “periodic payments” similar to standard licensing agreement.
He argues that this contract language is unlawful under the Copyright Act, which guarantees that the owner of a copyrighted product can resell that product without permission.
“The Supreme Court has long recognized that, once a copyright owner has sold a copy of its product, it has no right to control subsequent sales,” said Beck. “Just putting a paper inside the box and calling it a license agreement doesn’t negate that fact. If copyright owners could restrict resale of their products with these so-called agreements, used book and record stores would soon disappear. And if companies could so easily transform a sale into a license, a wide range of statutes that protect purchasers of products could be circumvented with a stroke of a pen.”
Beck also noted that Autodesk is improperly using the DMCA to remedy the situation.
“The DMCA provides no prior notice or opportunity to respond, and its heightened remedies were meant to fight piracy, not to enforce contracts,” he said. “Additionally, even though Autodesk is trying to interpret its license agreement to prohibit all resale of authentic copies of its products, Vernor never signed or agreed to anything.”
“Additionally, even though Autodesk is trying to interpret its license agreement to prohibit all resale of authentic copies of its products, Vernor never signed or agreed to anything.”
Now that arguments in the case have been heard the judge can either make a ruling or send the case to trial.
The ruling is an important one for it may further entrench the notion among some copyright holders that you never actually own some of their products. The MPAA has already argued that making even “one copy of a DVD is illegal” and that it would have to devise different price points for their products if consumers wanted to do so.
Stay tuned.
jared@zeropaid.com
[Hat Tip]
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that is a catch 22 paradox.
you cant determine if you want the software without opening the package.
by opening the package you void the satisfaction guarantee
Well that’s a copyright holder for you.