Autodesk Sued By eBay Seller For Pretending Right Of First Sale Doesn't Exist
from the ah,-copyright-law dept
The folks over at Boing Boing are pointing us to a very interesting case where an eBay seller who was kicked off eBay is now suing software maker Autodesk for $10 million. The case raises some important issues that don't get nearly enough attention. In copyright, the right of first sale is designed to allow anyone who buys a copyrighted product the right to resell it without going through the copyright holder -- just as when you buy a chair, you can resell it without the manufacturer's permission. In fact, studies have shown that an active secondary sales market often helps boost the size of the primary market (if you'll be able to resell a product later, you're probably willing to pay more for it initially). However, short-sighted copyright holders don't always see things that way.In this case, the guy had a legitimately purchased copy of AutoCAD and was trying to sell it on eBay. This should be perfectly legal. He had purchased a good and was trying to resell it. Assuming he had removed all copies on his own computer and wasn't using the software any more, there should be nothing to complain about here. However, instead, Autodesk sent eBay a DMCA takedown notice, claiming that the sale was a copyright violation. This would appear to be an abuse of the DMCA, sending a takedown notice on content that the seller has a legitimate right to put up for sale. Abusing the DMCA with false takedown notices can get you in a lot of legal hot water.
However, once again, the case takes a bit of a twist. Autodesk is claiming that the right of first sale doesn't apply in this case, because the guy did not purchase the software, but merely licensed it, thanks to the shrinkwrap license found inside the box, which the purchaser doesn't get to read until well after he or she has "purchased" the software (which appears like any normal purchase, rather than license). Unfortunately for Autodesk, some courts have already ruled that, despite mind-numbing EULAs that no one reads, if you purchase... er... license software, you still get certain ownership rights, which likely include the right to then sell the software. This case seems to have a little something for everyone interested in software and copyrights, between the questions on first sale doctrine, DMCA abuses and shrink wrap EULAs. It should be worth paying attention to as it moves forward.
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Filed Under: copyright, dmca, ebay, first sale
Companies: autodesk, ebay
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I can understand,,,
Greed is what is wrong with America today. He should sue for the cost of the software and impact of not selling the software to his situation...more like up to $5000. $10 million is extreme and this guy is foolish to think he is owed this amount of money.
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Yeah and maybe they'll think twice before issuing illegal takedown notices. In general I don't agree with the sue happy culture you Americans have, but in cases like this, how else do you remotely hit them where it hurts to stop them doing it over and over and over?
Simple answer, their wallets.
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Re: I can understand,,,
Yes
It appears that the guy had a very good computer junk resale business which AudoDec destroyed.
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Re: I can understand,,,
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Re: Re: I can understand,,,
It was his main source of income according to the article.
EtG
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Re: I can understand,,,
Companies like this should be hurt appropriately. They have to lose enough so as to not regard their actions as "worth the punishment."
The US is a country that likes to believe that crime doesn't pay... And if bullies need to be pushed back a little harder to understand that unacceptable behavior will not land them more profit, then that's what needs to happen.
Anony...
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Re: I can understand,,,
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Re: I can understand,,,
Hope you never have an incident that cost you more than the ticket price.
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Re: I can understand,,,
The only way these businesses take note of their Machiavellian practices is when we punch them in the wallet until all the money falls out.
Go back to the utopian rock you crawled out from under. We'll let you know when it is safe to come out.
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10M$
Seriously though, 10 million is a bit much.
Also, I hope he wins, but is awarded way less than 10 million.
His amount is extreme.
But, for the sake of consumers and right of first sale, I hope he wins.
I dislike the idea of software copyrights.
Oh, and I am a computer programmer. And I will program regardless of copyrights. I just don't like the idea that I may code something, and somebody will later come after me because they patented the general idea of what I was doing.
Probably because it felt pretty dang obvious to me, which we know doesn't mean much to the patent offices.
Sorry for being slightly off topic.
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Re: 10M$
Get a lawyer to explain this better to you...
In short, document what you do, and you're golden. Nobody can touch that, and if they try, their patents are what would be in question.
Common sense is common sense (and even MS can't keep you from using yours).
Anony...
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Lawyers
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Re: Lawyers
Well now if that is not the dumbest quote for the week. Congratulations, your an idiot. No lawyer would take almost ALL of the money. In fact, as lawyer VERY rarely gets paid more than the plaintiff in the case and when they do it is usually a small award compared to the amount of time put in.
You lawyer hating people are so off base and need to get a life. You change your tune pretty quickly when it is you that needs help with legal problems. Hypocrites.
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Re: Re: Lawyers
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Re: Re: Re: Lawyers
Beside, whatever money is won does not go to the lawyer himself (unless he's independent) but to the entire firm. Then the lawyer is paid an hourly wage from the law firm with a nice bonus at the end of the year (maybe $1-5k) depending on profits.
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Re: Re: Re: Lawyers
I don't see why people think lawyers should work for free.
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Re: Re: Lawyers
Yes, we all do use lawyers when we have legal problems. Mostly problems we wouldn't have, absent all the lawyers. Was there another choice I missed?
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Re: Re: Re: Lawyers
That's absurd. No lawyer takes 50% in contingency fees. The fees they charge are regulated by federal and state agencies. They CAN'T take 50% even if they wanted to. Lawyers have to have a license to practice and therefore have to follow strict rules themselves when it comes to billing.
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Re: Re: Lawyers
"lawyers" are really attorneys who are officers of the court and not allowed to argue your rights. They are only their to negotiate your tribute to their religion. So once again people are right and "lawyers" are cockroaches who help maintain the lie and deny a population who has been MASSIVELY deceived about their true legal rights.
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Well
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Re: Well
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maybe not too much
They could sue 100 people, and if 25 won $5000 it would be no big deal, and they could keep abusing the DMCA. Although, if 25 people sued for $10 million, this would certainly stop.
Not saying 10 million is right, but the only way to get companies to stop abusing these situations is to do something that really hits them hard.
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And frankly I hope that Autodesk loses. I'm sick of these software companies trying to change the rules in well hidden and deceptive EULA. And to the people that may argue if they had read it they wouldn't be in that position I ask this, "If the EULA is supposed to tell you what you are really getting into then why is that you can only see it right before you start installing the software? Why not put it on the outside of the package so you can see it before you "buy" it?" We all know that software companies are notorious for hiding things in the EULA.
If those companies really wanted to protect their patents, copyrights, or whatever instead of hiding behind ambiguous wordings they would lay their precious EULA out in plain site for everyone to see instead having it show up in some super tiny font right before you install it. But they don't and you know why? Because they know that if they show their hand to the buyer before purchase they have to hope that buyer agrees to those terms instead of relying on deception to trick the buyer into agreeing to their terms.
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$10 Million is perfect
Let the CEO of Autodesk wake up and realize he is being sued for $10M, and let the shareholders know that the company is acting this way. (if they are public).
The next time someone buys software, they should write up their own EULA and mail it back to the company they purchased the software from. Then write on the envelope that opening this envelope that opening it constitutes agreeing to the terms contained with in.
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Re: $10 Million is perfect
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Re: Re: $10 Million is perfect
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Autodesk sucks!
Autodesk needs to die and go to hell!
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EULAs
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How is this different?
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Same for Oracle, SAP, other large packages
The leased-not-purchased-licensing affects large companies that purchase products like Oracle and SAP. They can spend millions licensing such software but if they decide to not use it, there is no way to resell it, just a massive write-off.
Autodesk's licensing, which is common, comes to the attention of common people because they sell to both companies and end users.
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just as they use huge sums of money to deter piracy, he's using it to send a message.
also, lawyers won't take 99.995% of a settlement. usually it's between 35 and 50%. It's the taxes you have to worry about.
that being said, i think the fact you need to open the software (and thus make it unreturnable) before you can read and accecpt/deny the ELUA/ToS or w/e is quite unfair.
They should have either a hard copy agreement to read, and the actual software should either be downloaded via "hidden code" or seperately sealed. In either case, you'd be able to return the product, as long as the "software seal" hasn't been broken. This would "allow" you to read the agreement before opening the "If you open, it means you agree and therefore can get screwed in the hind quarters whenever we see fit" sticker.
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The question I have is how can they sell you just
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Re: The question I have is how can they sell you j
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EULAs Need Laws Too
They should be plain and simple.
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Re: EULAs Need Laws Too
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Love this quote in the blog on the article page.
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autodesk
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It's not enough
This one abuse has subverted the first amendment more then any law in modern history. Misuse of the takedown clause should be a criminal case not a civil one, punishable with jail time.
Autodesk certainly is not the best company to make an example of as far as misuse of the DMCA takedown. I've love to see a few execs from the entertainment industry behind bars for a month or two for the "improper" notices they send for user made videos on YouTube.
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See string of Adobe cases
Most of the cases (though not all) held in favor of the reseller. The basic gist was that this was straight right-of-first sale issues. The guy didn't open the boxes, he's not USING the software (no reproduction, though arguably distribution - everyone always seems to forget that USE is not a copy right). He just has a set of cds that he's trying to (re)sell. More importantly, though; even if it IS a copyright case, he is not bound by the EULA because a) he didn't meet the conditions to trigger them (e.g., open the box and shrinkwraps) and b) he had no notice of them or of the claim of copyright, c) he wasn't using the copyrighted material.
I can't imagine that AutoDesk is going to win this case. Like your RIAA cases, this is more of a case of going after the wrong person: the vendors need to have agreements in place with their retailers and distributors that prevent them from selling to anyone other than end-users. Of course, this COULD lead to a situation where BestBuy requires you to sign a contract (by leaving the store with this box, you agree...) whereby you forfeit your right of first sale (e.g., you agree not to re-sell it, even if unopened).
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10 million dollars
Think about it, if they could get away with this for the 1000 or whatever the software costs, they would probably do it.
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Ebay Does This All The Time
A similar thing happened with a music CD that did not say demo, not for sale, etc., anywhere on the package or on the CD. A few days after listing the CD on Ebay, I received an auction cancellation notice from Ebay. When I contacted the music company, I received in return an extremely arrogant email from their legal department, telling me that they were SORRY that I bought a CD that I was NOW STUCK WITH. The bizarre thing was that none of those words in caps were in my original email to them. I never said I was 'stuck' with their POS music CD. I just wanted a legitimate answer to my question: tell me how I'm supposed to know that this was a CD produced 'in-house' and wasn't meant for resale, if it wasn't marked as such anywhere on the package or on the CD?
Not surprisingly, I never received an answer to my question. Nor did the idiots respond to my second email, which offered to send them the CD back, in pieces, if they would be so kind as to pay the cost of return postage.
I am not Bill Gates, so it's not like I have the $$$ to fight these things in court. If I did, I would, even though it was only an outdated software package worth $50, at most, and a lousy $10 music CD, because it's the principle of the thing, and at least in the instance with the music CD, I would have prevailed in court, albeit at a great financial expense, after paying for the lawyers fees.
What really bothers me is that Ebay simply accepts the word of the person who claims to be the copyright holder of the merchandise, without first investigating the situation. They fall back on their mantra 'We are just a venue' if you try to get any kind of customer service action from them.
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He BROKE the LAW
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Re: He BROKE the LAW
First off, if he broke the contract, it's a civil matter between private parties, not a criminal matter of breaking the law.
However, more importantly, there are serious questions about how enforceable such a EULA is -- which is the point I made in my post. Just because you say something in a EULA doesn't make it automatically enforceable under the law, as your comment suggests. Courts have been coming down against clauses in hidden EULAs where purchasers really have no clue what they've agreed to and are lead to believe it's like a normal purchase.
So, no, it's not as black and white as you're suggesting.
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Re: He BROKE the LAW
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In addition to that, why is it they will not issue a replacement copy at low to no cost if you should lose the media? Some companies do do that, but most do not.
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Hope the guys wins
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plus, the items/characters in WoW aren't a direct "use" of the game. a better example would be AutoDesk saying it's illegal to charge people for drawings you create with AutoCAD. i.e. you use AutoCAD to create a drawing, which you sell. you use WoW to create items/gold/characters which you sell.
Now, as for the poster who stated AutoCAD has a "not resellable" on the lable.. that's something different.
but even so, contracts can be made that "ignore laws" and those have been deemed illegal. so idk...
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we have a retail AutocatLt for Win95. and looks like AutoCADlt 2005, purchased directly from autodesk.
the 95 version had no mention of resale/license agreement.
this was found on the 2005 version. :This software is licensed subject to the license agreement that either appears during the installation process or is included in the package. If you do not wish to accept the license agreement terms, you may return the software within the specified period. To use the software, you may have to registers and activate it with Autodesk."
It looks like you have the ability to read the user agreement and return it if you don't agree to it. however i doubt they can put a claim in there that says you forfeit any consumer protections (i.e. right of first sale, backup copies, etc) by using this product. I'd be like signing a contract where you agree that you can be "harmed" or w/e even if the act is against the law.
however this is for older versions of autocad. they may have changed their policy.
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Follow up
To take it one step further, if you have a product that you return to the store you bought it from, they give you a refund, but that is nothing more then them buying it back from you and there is nothing wrong with that.
And if it were something that was illegal, how come I can go to Amazon right now and find a ton of AutoCAD versions for sale that are listed as "Used"?
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Class Action
-CF
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Try TurboCAD
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They have jurisdiction (since your part of the deal took place in your town) and can go up to $5 grand or so. You go to court, of course they don't show up, you get your judgement. Course, getting them to pay could be difficult, but then maybe you get a lein?
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Bleating little fluffy sheep.
Some of the posters should really stop accepting everything that's thrust at them as truth and question their surroundings.
As it is, this is clearly a case of greed. Even if we were going to *pretend* that software was a scarce good, if you removed it from your computer before selling then the company is still getting a 1:1 ratio of purchased software to user. The only thing that changed is the user's name. It shouldn't make a difference to them, unless they are foolish enough to think that they deserve a cut from every new user.
Pure foolishness, I say.
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Why the suit is set at 10 million
It's much like polluting refineries. It is cheaper for them to pay the daily fines then spend 100 million to upgrade the plants. Now, if the fines were in the 10-15 million dollar a day range you can bet your arse they would upgrade.
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Overreact much?
Sorry my opinion differs from yours. Obviously thats illegal and I am an idiot because i have an opinion. E-Thug!
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Re: Overreact much?
Saying someone who wins a $10 million dollar lawsuit would get $5000 of that is absurd and a completely ridiculous statement. Think a little before you post something so outrageously dumb.
And I kind of like E-Thug. Thanks!
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Autodesk
If you make an outright purchase of a physical copy of a copyrighted material and enter no agreement with the owner of the copyright, the first sale doctrine allows you resell that physical copy.
If you enter an agreement with the owner of the copyright that restricts your use of the copyrighted material or your right to transfer your physical copy that contains that material, the first sale doctrine does not over-ride your agreement.
Thus, if you consent to a binding license agreement for the use of copyrighted material and that agreement says you will not re-sell your physical media that contain the copyrighted material, you are bound by that agreement. It over-rides the rights you would have had under the first sale doctrine because that is what you agreed to.
You can't get something by making an agreement and then ignore the parts of the agreement you don't like. (Unless you're Microsoft.)
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Re: Autodesk
The question though is do they have the legal right to make the consumer give up this right, and that is a question for the courts to decide.
Regardless though, in this case, they can NOT assume the person selling the product has agreed to the EULA unless they can prove the person did. So they cant keep reissuing DMCA's to a single person, especially if he counter the DMCA takedown notice.
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Autodesk sale
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No signature? No contract.
Well, last time _I_ checked you aren't required to sign a contract to purchase AutoCAD. This guy didn't either, and no amount of EULA doublespeak can change that one simple fact. He has the right to resell, they have no case... it's that simple.
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2) Resale of personal property, whether physical or not, is a right. Whether it's a license or a tractor, you bought it and it is yours to do with as you see fit. There is a bit more to it than that, but for our purposes, legality of resale rather than copywright infringement or patent law (ie. claiming said product was your work), then, regardless of contract, you can resell it. This has been upheld in courts before, I have no doubt it will be again.
3) Forcing the buyer into an unstated contract is illegal. I'm surprised, really, that a major lawsuit hasn't been brought against software companies, but, then again, our laws are such a muddle of incomprehensible double talk that the average citizen has no chance in deciphering them, let alone memorizing all of them. What I am getting at here, is that any software company that doesn't tell the purchaser that they must enter into another agreement before using the product is in violation of the law. They must inform the party before the purchase is made. Though it could be argued that the practice has been in effect long enough that the agreement is expected, though unstated. That would set a really bad precedent, but then, it wouldn't be a first.
4) Suing Mc Donalds for $10 million for bad product is to much, suing a major software company for violation of rights and loss of livlyhood, on the otherhand, is not. It has nothing to do with how much the man lost and everything to do with stopping said company from using the constitution as toiletpaper.
5) My spelling, sucks...deal with it. My name is not Webster and whether I can spell or not has no bearing on the validity of my statements.
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How can one possibly
Simply put, he cannot be liable for a hokus-pokus license. Agreements don't appear out of nowhere. By definition, they are agreements (and it takes two to agree on something, does it not?). The shrink-wrap EULA has never and will never meet that criteria.
That's not only harrasmant, it's defamation... He should have gone for more.
Anony
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Print the liscence on the box
Printing the liscence on the outside of the box would also make it very clear what the terms of the licence are.
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Stop WHINING!
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Autodesk sued
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Autodesk Software
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