Court Says Reselling Software Is Okay
from the good-news dept
Last year, we wrote about a case filed by an eBay seller against Autodesk, claiming the company unfairly prevented him from reselling used copies of Autodesk software that he had legally purchased. Basically, every time the guy listed Autodesk software, the company would send a DMCA takedown to eBay who would take it down. Each time, the guy would send a counter claim, which Autodesk would ignore, allowing the software to go back on the site. However, with so many takedown notices, eBay banned his account for abuse -- even though he successfully responded to each claim as being false. For that, he sued Autodesk. Autodesk moved to have the court dismiss the case claiming that the seller had no right of first sale because the software was "licensed" rather than sold. If that sounds like weak semantics, you've got a point... and it appears the court agrees with you. In denying Autodesk's request to dismiss the case, the court indicates that, even though the case law covering this issue often varies, it believes that the software has been sold, not licensed, and therefore the right of first sale does exist on Autodesk's software. The case should now proceed if Autodesk doesn't quickly show up with an offer to settle the case quietly (which it might). Assuming the case does go forward, it's going to be worth watching closely, as it will have important ramifications for the right to resell software you purchased.Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
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Filed Under: auctions, autocad, dmca, right of first sale
Companies: autodesk, ebay
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Autodesk will Weasel Out
Again, a major concern that is not being highlighted is that these companies take unilateral action as if due process does not exist and can do so with impunity.
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Re: Autodesk will Weasel Out
And you think they don't?? If you haven't already, just watch the news here - it's pretty obvious they do whatever the hell they feel like. When, and IF, they get busted, they just have the laws changed, or congress grant immunity and there you have it. They are free to do whatever they choose, whenever they want - you as the consumer just get to take it, so bend over and get ready!
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ARGH!
The company didn't LOSE any money. They're being greedy by forcing someone else to buy a new copy. The first guy paid for it, and now he is simply transferring the license to someone else.
While we're on the topic of licensing and software protections, if I have a choice between a $10 copy (locked down with various serial keys, online validation, etc.) and a $60 copy (free of any protections), I'd buy the $60 version. No, I wouldn't share it with anyone (despite what software companies assume about all their customers). I'd be grateful that I can run the program 10 years from now even if the company's validation servers are gone.
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Semantics again
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Re: Semantics again
Silicon Graphics makes you sign a contract stating that you are buying a license to the software and that it cannot be resold. The contract is binding and you truly cannot transfer the license without facing civil action.
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Bad Writeup?
It looks to me like they said that reselling software is an ill-defined area of law, so the case needs to go forward instead of being dismissed.
Or am I missing something?
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If you pay for it, you should be able to sell it.
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Re: If you pay for it, you should be able to sell it.
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Re: Re: If you pay for it, you should be able to sell it.
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Software re-sale restrictions are old news
Adobe's just following software traditions handed down from the big iron era. Nobody running a mainframe or minicomputer would have ever *considered* selling their software license.
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Reselling software
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Re: Reselling software
Another point: he bought the software(several copies, unopened I assume) at an auction and Autodesk wouldn't let him resell them. Now do you see the problem with your assertions?
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Re: Reselling software
Now you're just speculating.
Enough with the straw men already. The court did not say that Autodesk had to provide free support to the new owner.
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Re: Reselling software
"First: they used the software and most likely created with it. This is where software is so different - it is not an item like a sweater or a bike. They "used" the software - that is what the license is for. They did not "own" the software."
By this same statement, if I buy hammer I can create (or build) a house with it. I "used" the hammer. So does this mean I can't sell the hammer? The only real difference between software and physical items is that software (and all digital content) can be cloned endlessly. The difference is that you can't modify the original program and sell it as your own, wheras if I buy a bike I can repaint it and put a different seat on it and do whatever I like to it and because it is my bike the manufacturer can't do a thing about that. Software is an Intelectual Property, so its really just a collection of ideas written down, like a book, which can be resold, but if you copy the text from the book and try and sell that you are violating copyright.
Your second point does make sense about upgrade licensing. Typically, though to reinstall the upgrade copy you still need the original copy.
"Third: we haven't even touched on tech support. Is the person who would buy the resold software supposed to be able to call tech support if they have a problem? is Autodesk supposed to eat that cost?"
Why would Autodesk have to eat the cost? They were already paid for the copy that is being supported. The original purchaser no loger needs the support, they sold the software so the support transfers with the license.
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Re: Reselling software
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Thus the company is worried that i could buy 1 disk.. burn it 27 times and sell it 27 times and they no longer have 27 customers. Although i understand this person was selling the real disk you can burn a disk and put a fake copy in it and simply tell the tale that the dog ate the box.
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Re:
It happens. I had Dish Network cancel 2 auctions where I was selling one of their receivers, legally purchased. It was a legit sale and they attempted to claim some form of trademark or DMCA violation, which they couldn't prove if they tried. So I openly encourage people to pirate their signal, or move to DirecTV. I have cable so I don't care and I sold my receiver elsewhere.
The cult of scientology is doing the same thing with used "e-meters" or some such crap, I hear.
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I use it and it works very well. You purchase your game online, download it and its managed and updated by the Steam client software on your PC pretty much flawlessly, eliminating the hassle of patch maintenance for multiple games.
But I can't sell my games. At all.
They have disabled the system for transferring that game to another Steam account, except under certain circumstances, where you can so-called "gift" it if you have bought a second copy as part of a package deal.
Using the logic of this article, this restriction should be illegal and I agree. I'm surprised that no-one has raised this issue on Steam.
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Temporary - This does not matter
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Re: Temporary - This does not matter
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Reselling software
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Re: Reselling software
The problem with shrink-wrapped software is that it's not at all clear whether the transaction meets the legal criteria for a license rather than a sale.
I imagine the court's ruling is rather informative on the issues.
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Re: Reselling software
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Is part of this not eBays fault?
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Reselling Software
I've read texbooks and have told people about the book and what's in it, and made drawings of pictures in them, and quoted text from them. Then I sell them.
If I spend money on an item, and it's in my house, it's mine, as long as I haven't signed a lease agreement. If I want to sell it, the manufacturer of my sofa, car, book, stove, or software will have a difficult time keeping me from doing it.
This whole idea brings up another point. If I buy some software that I no longer need, can I donate it to my library?
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Re: Reselling Software
EULAs want to dispute that. "By reading this sentence, you waive all rights." No-signature-needed contract. Innit great?
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Back to nature
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Re: Back to nature
Back to nature I'm with you. I was thinking this same exact thing. Trying to clear out old software and thought I'd search where to sell it online. It's vintage Adobe. I paid a hefty price to OWN it. That was always the draw to Apple in the past. 1996
Now I have a monthly subscription that outruns all my old, out of date systems, etc... I just wonder if someone out there can use it on an old nostalgic machine perhaps and bless me with a small return from the sale. I'll never get back out of it what I originally paid. It was steep! Just like everything they sell to creators and artists. It's practically useless to invest in the products I need to create with because the price is so high that I will probably never recover my initial and ongoing investment simply trying to keep up with the upgrades. It's like a car depreciation driving it off the lot. Pure robbery anymore. I'm going back to watercolors...a lot more enjoyable and not as expensive...eh...whatever.
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Sillt, corporations...
I did pay full-price for the upgrade to 7.0 when it came out, because I liked the program so much. I never would have done that if I hadn't purchased the use copy for cheap. It wasn't even a matter if being sure that I liked it; it was just too much.
Guess they don't want my business after all...
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You also can't re-install them if Valve should happen to go belly-up, or get bought by another company who decides to not support activation of older games.
Can you even burn the games/patches you download to CD/DVD so that you don't have to re-download them if you later want to re-install them?
How much less could you care? And doesn't that mean that you do care now, since you could care less?
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Re:
That's an often misused corruption of "I personally couldn't care less." Like most corruptions, it doesn't nearly say what they mean.
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Why do people keep repeating this fiction?
You can, however, own a copy of a copyrighted work. Apart from the restrictions imposed by copyright law (title 17, kids), you can do anything you want with the legal copy that you own. Selling your legal copy to another is legal and does not require the approval of the copyright holder.
About EULAs: It's a sale and not a license if it looks like a sale. Go to Best Buy and "purchase" some software. That's a sale. It makes no difference that there is a slip of paper in the box that says otherwise.
Did you pay sales tax? States do not charge sales tax on renumeration that changes hands within the terms of a contract (license). If you paid sales tax, it's a sale. Ignore the EULA.
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Where would it stop?
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re: Where would it stop? by Michael Johnson
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Subscription software
This will be the technical end-all and be-all of software license versus purchase discussion. At the point that your software doesn't work unless you're paying for a subscription, there won't be any doubt.
As for this case, though, I would defer to the EULA in the Autodesk packaging. If that EULA specifically states that he purchased a license to use the software and doesn't have a right to resell it, then he doesn't. If the wording is ambiguous and/or doesn't outline his rights clearly, then he has a right to challenge the company. It's already laid out for him, and if it's not, then that's Autodesk's fault, and they need eat this one and begin a process to clarify the wording of their EULA in future versions and issue an update or patch to current software that changes the EULA within the software and requires the user to accept it to continue using the software after the patch.
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Re: Subscription software
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