Autodesk Sued By eBay Seller For Pretending Right Of First Sale Doesn't Exist

from the ah,-copyright-law dept

Fri, Sep 14th 2007 6:43am — Mike Masnick

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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TheDock22, 14 Sep 2007 @ 6:54am

I can understand,,,
I can understand getting angry with Autodesk for obviously pulling some tricks so their software is not sold without them making some money, but is this guy really out $10 million in damages?

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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Killer_Tofu (profile), 14 Sep 2007 @ 6:58am

10M$
The guy will probably only get 1 million, and the rest will go to lawyer fees.

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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Anderson, 14 Sep 2007 @ 7:01am

Lawyers
After his lawyer takes his cut, the plaintiff will be luck to see $5000. Because we've allowed the lawyers to make the laws in this country and dictate how the legal proceedings work, you cant afford a law suit for any logically reasonable amount because of the legal fees involved are grossly inflated. This is symptomatic of what happens when the fox guards the hen-house.
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ared38, 14 Sep 2007 @ 7:01am

Well
5000$ won't put a dent into Autodesk's business. The 10 million is less of what the guy deserves and more of what the company deserves to be fined.
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Derek, 14 Sep 2007 @ 7:02am

maybe not too much
I agree that 10 million is much more than the guy needs, but if he only sued for $5000 the company might just keep doing it.

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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Anonymous Coward, 14 Sep 2007 @ 7:04am

Re: I can understand,,,
I would see not so much as greed, but teaching them a lesson. You gotta hit 'em where it hurts.
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TheDock22, 14 Sep 2007 @ 7:20am

Re: Lawyers
After his lawyer takes his cut, the plaintiff will be luck to see $5000.

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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MATT (profile), 14 Sep 2007 @ 7:24am

Re: Re: Lawyers
Although I agree people think lawyers will eat all the money and leave you nothing, from what I had understood they typically ask for a portion of the successful prosecution amount (Say 30%-50% range), no?
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Danny, 14 Sep 2007 @ 7:24am

I agree that $10 million is excessive but these days suing for reasonable amounts of money simply does not get any attention nor does it cover those ungodly legal fees. One could argue that the only reason this suit has gotten this much attention is because of the large amount.

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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TheDock22, 14 Sep 2007 @ 7:25am

Re: Re: I can understand,,,
Just because it would "teach them a lesson" does not make it right to sue for an obscene amount of money. Plus even if the company does have to pay it, they won't learn any lesson. They will just change their approach their lawsuit differently next time.
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Thomason, 14 Sep 2007 @ 7:29am

Autodesk is the most pirated software, and that makes them a bit overprotective. Mike is right that the EULA permits a bona fide owner/licensee to transfer all their rights and copies to someone else. So, even if the first sale doctrine does not apply, the reseller should have protection under the EULA.
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TheDock22, 14 Sep 2007 @ 7:30am

Re: Re: Re: Lawyers
Depends on the suit. Criminal defendant lawyers sure do because of the amount of time building their case. For civil matters, not usually. It is more of a 10-20% range because the time it takes to build the case.

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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ScaredOfTheMan, 14 Sep 2007 @ 7:36am

$10 Million is perfect
You know why, cause if he sued for $5000, no one would care, and it owuld not make the news.

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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shmengie, 14 Sep 2007 @ 7:38am

Re: Re: Lawyers
who's the idiot? the guy who makes a hyperbolic joke or the guy who uses "your" instead of "you're"?
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Anonymous Coward, 14 Sep 2007 @ 7:40am

He's not going to get 10 million. That's just the shocker price so it's not ignored.
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An Architect, 14 Sep 2007 @ 7:45am

Autodesk sucks!
I hope the guy wins, and a hundred other people win for the same ammount

Autodesk needs to die and go to hell!
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Anonymous Coward, 14 Sep 2007 @ 7:47am

EULAs
Unless the EULA is signed prior to to the transaction taking place, the 'license' vs. purchase thing seems pretty clear-cut.
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Anonymous Coward, 14 Sep 2007 @ 7:48am

Re: I can understand,,,
In respomse to 1.

Yes

It appears that the guy had a very good computer junk resale business which AudoDec destroyed.
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Lionel Felix, 14 Sep 2007 @ 7:48am

How is this different?
When you buy or sell a company, you also purchase the licenses for the software on all of the computers. If Time Warner buys X-CO and all their property, they dont have to re-buy all the software licenses. So I don't see how this is different.
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Norm, 14 Sep 2007 @ 7:54am

Same for Oracle, SAP, other large packages
This is a huge issue for companies

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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Mack, 14 Sep 2007 @ 7:55am

Re: Re: Lawyers
With contingent fees at 50% after expenses, it's not at all unusual for 'the lawyers' to get more than their clients.

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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Anonymous Coward, 14 Sep 2007 @ 8:11am

i agree that sueing for 10mill is a bit much, don't the coporations sue for crazy ammounts. $50,000 for one song? how much for a copy of XP?

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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Cynical Sceptic (profile), 14 Sep 2007 @ 8:18am

The question I have is how can they sell you just
How is it that they can just sell you a license? If you buy the product in the store, retail box, how can that be just a license? No where on the box does it say you are purchasing a license. So is that not misleading adverstising. The box is the in store advertising, so when it says nothing about it being just a license for the software couldn't someone sue them for False Advertising?
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AlbinoRhino, 14 Sep 2007 @ 8:22am

EULAs Need Laws Too
I think there should be laws against bloated EULAs. I can understand companies wanting to protect their software, but never have I read a EULA. For all I know I sign away the rights to my first unborn child in those things.

They should be plain and simple.
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Healthy Sceptic (profile), 14 Sep 2007 @ 8:24am

Love this quote in the blog on the article page.
READ CAREFULLY. By reading this blog comment you agree, on behalf of your employer, to release the author of this blog comment ("SENDER") from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies (”BOGUS AGREEMENTS”) that SENDER has entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to SENDERS ongoing rights and privileges. You further represent that you have the authority to release sender from any BOGUS AGREEMENTS on behalf of your employer.
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Anonymous Coward, 14 Sep 2007 @ 8:27am

Re: Re: Re: Lawyers
I love how some people are such grammar "nazis" on message boards/blogs. *end sarcasm*
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Anonymous Coward, 14 Sep 2007 @ 8:33am

Re: EULAs Need Laws Too
a EULA with a single invalid clause should invalidate the entire EULA. That would at least make companies think about what they're putting in one.
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tooly, 14 Sep 2007 @ 8:51am

autodesk
People actually pay for AutoCAD??? HA!
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JD (profile), 14 Sep 2007 @ 8:59am

Re: I can understand,,,
He's not out for $10 million in personal damages. He's going for $10 million as a punitive measure. The object of punitive damages is not to compensate the plaintiff, but to reform or deter the defendant and similar persons from pursuing a course of action similar to that which damaged the plaintiff. Personally, I doubt that $10 is high enough to really make the industry take notice, but it's a start.
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Dan, 14 Sep 2007 @ 9:17am

It's not enough
All other arguments aside, in terms of sending a financial message for abusing the DMCA takedown system alone, 10 million is 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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Jeff, 14 Sep 2007 @ 9:32am

See string of Adobe cases
Back in the late 90s early 00s there were a string of Adobe cases where this same issue came up.

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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TheDock22, 14 Sep 2007 @ 9:49am

Re: Re: Re: Lawyers
With contingent fees at 50% after expenses, it's not at all unusual for 'the lawyers' to get more than their clients.

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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Anonymous Coward, 14 Sep 2007 @ 9:59am

I wonder how this would apply to companies like Blizzard for World of Warcraft sales since eBay constantly removes those auctions as well.
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Buzz, 14 Sep 2007 @ 10:10am

Re: The question I have is how can they sell you j
I agree. This is why I will forever support open source. By being the best at what you do, you have no fear of someone stealing your idea and monetizing it. People will come back to the creator if he or she proves to provide the best service.
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bill, 14 Sep 2007 @ 10:10am

10 million dollars
The 10 million dollar amount might be just so that Autodesk doesn't take the easy way out and just settle out of court.

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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shmengie, 14 Sep 2007 @ 10:27am

Re: Re: Re: Re: Lawyers
if you love it so much, why don't you marry it?
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Roxanne Adams, 14 Sep 2007 @ 10:34am

Ebay Does This All The Time
I have had this done to me by both Microsoft and some third-rate music company. In the case of Microsoft, I listed my Microsoft Office 97 for sale. It was a full version, not an upgrade, OEM or academic version. I had in the intervening years thrown out the box and the books (in those days, software packages came with about 10 pounds of manuals and user guides). When Ebay sent me the auction cancellation notice, what was I going to do, fight it?

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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Boost, 14 Sep 2007 @ 10:37am

Re: Re: Lawyers
There are alot of lawers in this country that are good people and only want to help people and enforce the laws and the rights of their clients. However, there are alot of powerful lawers and firms that have made life for the most of us more difficult becuase they convince people that they can legitimately sue for very illegitimate reasons and then win the case. They are one of the big problems with the medical industry.
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Matthew, 14 Sep 2007 @ 10:39am

Re: I can understand,,,
Yes, it's extreme, and the plantiff can't possibly think he'll win that much, but it does get it in the news circles and that's the main point. If this guy took Autodesk to small claims court we'd never hear about it.
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Amethyst, 14 Sep 2007 @ 10:41am

You know, there's an easier way to deal with this copyright garbage. Just have a garage sale and don't deal with e-Bay.
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Anonymous Coward, 14 Sep 2007 @ 10:47am

Re: Re: Re: I can understand,,,
"They will just change their approach their lawsuit differently next time."

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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Justice Guy, 14 Sep 2007 @ 10:47am

He BROKE the LAW
AutoDesk's EULA, regardless of what the courts say, specifically forbids you from reselling, in fact on every box of AutoCAD it is printed in plain sight for God and everybody to see, that you may not transfer the license through any means to another party, Not for resale, etc.... What this guy did was breach a contract which last time I checked was illegal.
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Anonymous Coward, 14 Sep 2007 @ 10:48am

How is it that they can just sell you a license? If you buy the product in the store, retail box, how can that be just a license? No where on the box does it say you are purchasing a license. So is that not misleading adverstising. The box is the in store advertising, so when it says nothing about it being just a license for the software couldn't someone sue them for False Advertising?

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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Anonymous Coward, 14 Sep 2007 @ 10:55am

Re: Re: Lawyers
There is a real reason Lawyers have a nasty rap. I have tried to get a lawyer before...they charge way too much. Trying to get back 7 grand was going to cost me double that. So I think there is a very real reason Lawyers have a nasty reputation.
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Anonymous Coward, 14 Sep 2007 @ 10:57am

Re: $10 Million is perfect
What moron would sue for 5 grand? The lawyer fees alone are probably 10 times that. They have boats and mansions to support.
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Eric McCormick, 14 Sep 2007 @ 11:00am

Hope the guys wins
Just to buy the light version of AutoCAD cost 900 dollars and to buy a full version cost anywhere from 4 to 8 thousand dollars based on what edition you have. You can get it cheaper like a thousand dollars a licence but only if you buy 25 licences. AutoCAD is a program that is used in many industries and is way over priced and because of that, my job won't even get a licence to use it and I'm a engineer that could acutally use it. This guy is asking for 10 million dollars, averaging at $6,000 a licence he is only asking for the cost of 1666 users. For a small company, this might mean something but for a huge company like AutoDesk that has been selling this product for over 20 years and has millions of licences, I think they can afford this slap on the wrist. Plus some of the amount he is asking for is so this actually gets some attention. If he was only asking 10 or 20 grand, AutoDesk would probably just pay him to shut him up and keep this out of the news.
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Anonymous Coward, 14 Sep 2007 @ 11:04am

first, i don't think eBay takes down auctions of the actual game of World of Warcraft. They take down listings of accounts and gold/items for sale. this is from their terms of service agreement. now, i think the issue is that there is an elua for the actual game. but there is a tos agreement for the "monthly" subscription you purchase. you can cancel your subscription at any point in time.

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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Anonymous Coward, 14 Sep 2007 @ 11:13am

i just took a look at the versions of autocad at our office.

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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Mike (profile), 14 Sep 2007 @ 11:18am

Re: He BROKE the LAW
AutoDesk's EULA, regardless of what the courts say, specifically forbids you from reselling, in fact on every box of AutoCAD it is printed in plain sight for God and everybody to see, that you may not transfer the license through any means to another party, Not for resale, etc.... What this guy did was breach a contract which last time I checked was illegal.

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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ThDock22, 14 Sep 2007 @ 11:21am

Re: Re: $10 Million is perfect
Small claims court for $5000, no lawyers allowed.
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Eric McCormick, 14 Sep 2007 @ 11:21am

Follow up
When it comes to things being sold and resold. If you are not the company that produced the product and you are selling a product you are then reseller of that product. Companies like Staples, Office Depot, Office Max, Amazon and so on, they all buy the product in bulk from the manufacturer then they sell it to "the end user" but if it is not for resale, then those companies by that same definition would not be able to sell it either.
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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ChronoFish, 14 Sep 2007 @ 11:30am

Class Action
$10 Million seems like a lot for one person, but turn this into a class action suit naming Autodesk and eBay (after all, they were the ones who took the auction down - and this isn't about one man's right, but all of ours - at least everyone who has purchased Autodesk) and suddenly the case is worth hundreds of millions.

-CF
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Iroaniam, 14 Sep 2007 @ 11:50am

Re: I can understand,,,
You didn't take into account that ebay could have been his means of income. Without being able to sell would be like losing a job. $10,000,000 is a little excessive though.
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Aimsworthy, 14 Sep 2007 @ 11:55am

Try TurboCAD
If you don't like what autodesk is doing, Try TurboCAD by IMSI. It is 99% of the functionality of autocad for 1% of the price (if you buy on e-bay) and offers file compatibility with AutoCAD. IMSI is trying to build something and compete, Autodesk is trying to protect their over priced product.
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RandomThoughts, 14 Sep 2007 @ 12:06pm

You wouldn't get $10 mil into small claims court, but if you buy a product or service through the mail or over the phone, you can always take the company to small claims court in your hometown.

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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Dan, 14 Sep 2007 @ 12:33pm

Re: He BROKE the LAW
So you are saying companies can do what ever they want, and you are saying that regardless of what courts say he is breaking the law? Not everything in an EULA can be enforcible, especially when you have to agree to it AFTER you pay for it.
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The infamous Joe, 14 Sep 2007 @ 12:38pm

Bleating little fluffy sheep.
Just because it says you can't resell it on the box doesn't mean you can't resell it any more than when NFL says you can't talk about the game without their permission. Just because it's written on the box doesn't make it legal.

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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Anonymous, 14 Sep 2007 @ 1:01pm

Why the suit is set at 10 million
I can tell you that 10 million is actually a low number. Any trivial amount just gives the manufacturer reason to keep abusing the DMCA and it's copyrights. There has to be enough pain for Autodesk as an incentive not to screw with the law.

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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Anderson, 14 Sep 2007 @ 1:36pm

Overreact much?
"Well now if that is not the dumbest quote for the week. Congratulations, your an idiot."

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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Mike, 14 Sep 2007 @ 2:13pm

Autodesk
Let's not misunderstand the law.

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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Eric the Grey, 14 Sep 2007 @ 3:15pm

Re: Re: I can understand,,,
According to the article I read yesterday, he has had a very active Ebay account, with an extremely good rating (over ten thousand satisfied customers). Having that account yanked forces him to loose sales until he can get them back.

It was his main source of income according to the article.

EtG
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TheDock22, 14 Sep 2007 @ 3:31pm

Re: Overreact much?
Sorry my opinion differs from yours. Obviously thats illegal and I am an idiot because i have an opinion. E-Thug!

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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Dan, 14 Sep 2007 @ 3:52pm

Re: Autodesk
This is true

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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Jeremy, 14 Sep 2007 @ 3:57pm

Autodesk sale
If all he bought was a license then why couldn't he simply sell the license not the software, since obviously he never really had the software to begin with?
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D, 15 Sep 2007 @ 3:25am

No signature? No contract.
"What this guy did was breach a contract which last time I checked was illegal."

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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Barrenwaste, 15 Sep 2007 @ 8:28am

1) No contract made between parties supercedes federally granted rights...ever. So it doesn't matter what he signed or didn't sign. If, as it has been stated, this kind of thing has been deemed a violation of rights then it doesn't matter whether he signed or not, he will win.

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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Anony..., 15 Sep 2007 @ 9:26am

How can one possibly
be bound to an agreement with no knowledge of it until it's too late (ie, the shrink-wrap is off the package)? That should be common sense. He didn't agree to it. He didn't sign anything.

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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Anony..., 15 Sep 2007 @ 9:32am

Re: I can understand,,,
Not necessarily. Big dollar companies wouldn't mind buying back his monetary loses over this. heck... it would be worth it to intimidate folks who resell and intimidate them to buy from the vendor directly. To them, the loss would be worth it.

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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Anony..., 15 Sep 2007 @ 9:38am

Re: 10M$
That's ridiculous...

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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SmartEnough, 15 Sep 2007 @ 8:29pm

Re: Re: Lawyers
Congratulations you're an idiot. First for not knowing how to spell the conjunctive form of you are, and second for thinking the lawyers get only a small part. For cases like this, it can go up to 40%, unless the plaintiff pays for the legal services by the hour, which would be prohibitively expensive. Go back to sleep "wanna be legal eagle".
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Anonymous Coward, 16 Sep 2007 @ 9:40am

Re:
IRT 5: Webster couldn't spell either. Hence US English.
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Anonymous Coward, 16 Sep 2007 @ 9:48am

Print the liscence on the box
Maybe the software should be required to print the licence on teh outside of the box, in a clearly legible print. This would allow a short, simple readily understood licence to be printed on the back of the box (albeit in very small printing), but would limit the length to, on one of the old mega-boxes that CD-ROMs used to come in, something of about the length of the GPL. To print out the Windows XP licence would require a box large enough to supply the system on punch cards. The restriction on size would also encourage the removal of such idiocies as in the iTunes EULA, which forbids the use of iTunes in the production of nuclear or biological weapons. M$ might have problems framing a licence which gives them every rigt they now assert, but the licence can be summed up in 7 words: "All your bases are belong to us"
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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Hitler, 31 Mar 2008 @ 11:23pm

Autodesk are software NAZIs fucking faschists when it comes to screwing up milions of users
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Techy, 1 Apr 2008 @ 9:57am

Stop WHINING!
I LOVE Autodesk software. I have made a good living using it. I can never understand why so many technical people believe that software should be PERFECT! ? There is no such thing in life! I saw how hard programmers work to create the best possible product and think they deserve APPRECIATION..not more whining from people who could never program their way out of a paper bag. Get a life!
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you're right, 15 Dec 2008 @ 12:21pm

Re: Well
well said
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Engineer, 7 Apr 2009 @ 10:51am

Autodesk sued
I hope the guy prevails. AutoCAD software is great but expensive and Autodesk is a crappy company. Autodesk is responsible for every copy that is pirated. They can blame no one but themselves. They must make more money by suing people than with the sale of their software, because their licensing rules are crap. Microsoft is a much larger company that doesn't have this problem because their costs are reasonable and their licensing is reasonable.
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Dave, 28 Jul 2009 @ 11:34am

Re: Re: Re: Lawyers
It's called a contingency fee. I've seen them where the lawyers get 25 - 33 %, but only if they "win." If the client wants to pay as they go, the client keeps all the money. If it isn't important enough to pay for a professional to do the work, then skip it. Same as if you wanted to hire a software engineer or a plumber. If you can do it yourself, don't pay. If you can't do it yourself, but it isn't important enough to pay, then don't do it.
I don't see why people think lawyers should work for free.
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Anonymous Coward, 8 Mar 2010 @ 7:28pm

Autocad is such a piece of crap anyway, the guy shouldn't have bought it to begin with !
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2398pls, 21 Apr 2010 @ 7:59am

Re: I can understand,,,
Up to 5000 is not worth the headache this guy is going to get fighting Autodesk. Some people seem to have no value for their time. I agree that 10 mil is too much, but that might be 90% legal fees if he has a snowball's chance in hell against the Autodesk legal team.
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Anon, 9 Jul 2010 @ 7:36am

This is crap. I purchased the student version and read the EULA. It was like installing a bloated rhino onto my harddrive. Then I got to Motion Builders EULA and the thing actually said Autodesk could force you to upgrade at anytime and end your license whenever they see fit. Like hell I would pay $500 for the student version and let them have that loophole. Autodesk only has its market share because it was the best in the 90's. Their corporate policy and treatment of users and non-intuitive interface of their software should catch up with sooner or later. I hope Autodesk get's off their high horse. There is no reason to put so much copy protection on the software. Fact is it's gonna be pirated anyway. I hope Autodesk learned their lesson. I will never attempt to purchase any of their software again.
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Werner Mc Christy, 21 Jan 2011 @ 1:44pm

Autodesk Software
I purchased a stand alone copy of Revit 2011 on ebay, unopened, and both myself and the original owner have been trying to get Autodest to transfer ownership, with no results yet. Autodesk tells me that they do not approve of any sale of thier software unless by an approved re-seller, or if they happen to approve it. Seems a little bit like robbery. The software exist, paid for, with no one able to use it. Werner
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Truthsader, 9 May 2014 @ 1:35pm

Re: Re: Lawyers
actually no,

"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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Kevin Morley, 19 Oct 2014 @ 11:37am

Re: I can understand,,,
Can you also understand that he has been banned from a platform where he was selling goods so this action by autodesk has cost him more than what he wanted for the licence. He could have had a very good income from ebay so $10m including costs isn't so much.

Hope you never have an incident that cost you more than the ticket price.
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jj, 8 Nov 2017 @ 3:10am

Re: I can understand,,,
you are an idiot, just like the choads over at Autodesk.

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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WizCarfter (profile), 22 Aug 2019 @ 4:50am

We've been enslaved at work for the past 2 years in using AutoCad, cackling fiendishly in happiness at this news.
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