Slashdot Log In
Federal Court Says First-Sale Doctrine Covers Software, Too
Posted by
timothy
on Thu May 22, 2008 02:19 PM
from the it-better dept.
from the it-better dept.
New10k writes "The US District Court in Seattle has rejected Autodesk's myriad arguments regarding its software licenses and found in favor of eBay seller Timothy S. Vernor. The ruling started by ruling that Vernor was within his rights to resell copies of AutoCAD Release 14 he got in an auction. Once the court settled the legitimacy of reselling, it used that ruling as a lens to dismiss all of Autodesk's various claims. More than once the court described Autodesk's arguments as 'specious' and 'conflicted.'" Autodesk managed to have Vernor's eBay account pulled, after he listed for sale copies of AutoCad 14. He sued Autodesk in response.
Related Stories
This discussion has been archived.
No new comments can be posted.
The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
Full
Abbreviated
Hidden
Loading... please wait.
Not really adding anything important but... (Score:5, Insightful)
Workaround (Score:5, Interesting)
Because that is exactly what World of Warcraft (and all MMO's, for that matter) does.
Autodesk would then give the software away for free, but sell the user accounts for whatever they want.
Parent
Re:Workaround (Score:5, Insightful)
Parent
Re:Workaround (Score:5, Informative)
Skirting this by saying the key allows you to create an account and that the account is non-transferable is bogus as long as the key can only be used to create only one account.
I did buy a "like new" copy of WoW on ebay a couple years ago. I was a bit put out when the key was rejected due to having already been used. After reading the EULA thoroughly (not that I agree to a unilateral after-purchase change of conditions), I argued with Blizzard about my non-working key. After talking with a lawyer friend, and him sending them a letter, they sent me a new key.
One of they key points in their EULA was the paragraph:
You may permanently transfer all of your rights and obligations under the License Agreement to another by physically transferring the original media (e.g., the CD-ROM or DVD you purchased), all original packaging, and all Manuals or other documentation distributed with the Game; provided, however, that you permanently delete all copies and installations of the Game in your possession or control
The key is part of the "other documentation" and must be transferred to the new owner. Preventing someone from using it just because they are not the original owner of it is contrary to the first-sale doctrine.
Furthermore, there is nothing in the EULA indicating any possibility that the key cannot be used by its rightful owner. The only place that is mentioned is the Terms of Use which are displayed when you go to use the key. Prohibiting subsequent owners from using the key completely destroys the intended use of the software, so should not be allowed as long as first-sale doctrine principals apply.
Parent
Re:Workaround (Score:5, Interesting)
Shame on them picking on a little kid for not knowing his rights. Now I think they just try to convince adults that anything but bottled water is poisoned or that only poor people drink water.
Idiots!
Parent
Re:Workaround (Score:5, Informative)
You can install WoW from your friend's disks, but when you go to create an account, it makes you enter your own CD key (plus the key for any expansion you want to activate). They could remove this requirement and it would indeed work as you describe, but for now Blizzard expects to get money for both the software and the account fees.
Parent
Re:Not really adding anything important but... (Score:5, Insightful)
XP is going to say that it's a different computer and refuse to run more than 30 days. It has a EULA that slashdotters say is a legal document (although I never signed anything) to back it up.
I fail to see how this court ruling benefits the user. As Agent Smith said to Neo, "what good is a phone call if you're unable to speak?"
Parent
Re:Not really adding anything important but... (Score:5, Insightful)
As much as people whinged and complained about how awful activation was when MS first introduced it, I've never had a problem or hassle because of it.
I will go out of my way to find reasons to criticize MS, but in this can, I cannot.
Parent
Re:Not really adding anything important but... (Score:5, Insightful)
So, did Vernor? Or are you just throwing some bullshit out there like "We should just kill everyone because they might commit a crime"?
Parent
Re:Not really adding anything important but... (Score:5, Insightful)
Parent
So true (Score:5, Insightful)
I mean, look at how libraries have put all those authors and publishers out of business.
You can get the books for free there! It totally destroyed the book selling market.
Parent
Re:So true (Score:5, Insightful)
Parent
Re:So true (Score:5, Insightful)
Parent
Re:So true (Score:5, Funny)
Parent
Troll?? (Score:5, Insightful)
As for CD's? It is as dead as AM radio (AM Radio has a dirty history, read Free Culture)
Parent
Re:Not really adding anything important but... (Score:5, Insightful)
And people actually make fun of Singapore for their anti-gun laws?
Companies and consumers are going to find ways to break the law, that doesn't mean their rights to do legal business should be changed in unnecessary ways. How do you justify that?
Parent
Re:Not really adding anything important but... (Score:5, Informative)
how about if the little guy writes software, and everyone who buys it goes straight to ebay and resells it, without uninstalling...
then the little guy is out of business...
Um, where are you getting the "without uninstalling"? That has nothing to do with this case or TFA.
This court case says that if I buy a copy of Windows Office and decide I don't like it, that I can uninstall it and sell it to someone else. Previously, software companies had been trying to claim that even after uninstalling the software and destroying every backup copy, you still couldn't sell the original CDs.
Parent
Re:Not really adding anything important but... (Score:5, Insightful)
Parent
Re:Not really adding anything important but... (Score:5, Interesting)
Parent
Re:Not really adding anything important but... (Score:5, Funny)
Parent
Re:Not really adding anything important but... (Score:5, Interesting)
Parent
Re:Not really adding anything important but... (Score:5, Informative)
The laws covering computer programs [cornell.edu] Section 117 a 1 and 2 say that you can make a copy of the program as an essential step in using it (a fancy wording for installing it) and that you have to destroy or transfer the copy with the program is you sell it.
(a) Making of Additional Copy or Adaptation by Owner of Copy.-- Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
So in the case of the little guy, or any guy, keeping a copy of the software without the copyright holders permission is still a violation of copyright. With this ruling, no one can install a copy of software then sell the product on ebay without removing it from their computer first. The little guy needs to do nothing because he is still in as much control of his work as the copyright law originally allowed.
Parent
Re:First-Sale cuts both ways (Score:5, Informative)
See http://en.wikipedia.org/wiki/First-sale_doctrine [wikipedia.org]
Parent
Re:First-Sale cuts both ways (Score:5, Interesting)
So why should people buy my video at $80 if they can get it for next to nothing on the web and most likely just burn their own copy? That's First-Sale Doctrine and it can also suck for the little guy.
(I know nothing about boat building, but...) If building boats takes more than 5 weeks, or is slightly difficult, you'll have successfully adapted your business model to (cue scary-deep voice over) 'A Business Model For The Digital Age'.
Kerching!
Parent
Re:First-Sale cuts both ways (Score:5, Informative)
Parent
Re:First-Sale cuts both ways (Score:5, Interesting)
Parent
Re:First-Sale cuts both ways (Score:5, Informative)
This is exactly the sort of thing you can do under the first sale doctrine. First sale exhausts the distribution right. (except for software and music. See Section 109(b)(1) of the copyright act.) And, renting is distribution.
Parent
Re:First-Sale cuts both ways (Score:5, Informative)
Actually, they do. They buy their copies of the movies through a distributor who acts as the studios' agent.
-jcr
Parent
Re:First-Sale cuts both ways (Score:5, Funny)
There is only one circumstance within which video rental stores have a contract (indirectly) with studios, and that's for PPT, or Pay Per Transaction. That is a voluntary agreement where the studios get a cut of every rental.
Otherwise, any legally owned copy of a copyrighted video work may be rented without any permission from the studios. My qualifications? I was an independent video store owner for 15 years, a long-standing member of the VSDA, and have worked with all the major distributors. I'm afraid you are completely and utterly wrong.
Apart from that, my slashdot UID is lower, my kids smarter, my wife prettier, and my crap smells like cinnamon rolls.
Have a nice day!
Parent
Re:First-Sale cuts both ways (Score:5, Interesting)
Parent
Re:First-Sale cuts both ways (Score:5, Informative)
Where I believe you are somewhat incorrect is that, in the catalog you saw, you saw prices higher on items not released for "general sell-thru". Recall back in pre-DVD days, many videos were available for rental only first (for a few months). This was because of the artificially high markup (around $100 a tape, circa 1998). Consumers simply wouldn't pay it. When the need for rental stores to buy 10 or 15 copies died down, it went to sell-thru. This was how the movie companies countered the rental market at the time. Interestingly, this was primarily brought about by the stores selling their used copied once the need to have a lot of copies of something died down. To the rental houses, the studios argued they had to make their money somehow, and it wasn't fair to sell a movie out for initial rental for just a few bucks and have it sold for nearly that much used.
Exceptions were made (think Disney or something that was thought to be a major-selling video, like "Titanic") - and for those that the consumer paid $19.95 for, the video stores paid about $15.
Agree: it did make for some fun explanations why that new release that baked in the hot (Michigan, in my case) sun in their car was $125 to replace, when they were used to spending $20 for a tape. It's all about the timing.
The germane point here is that they weren't paying a special licensing fee or anything to the studios (though, in later years, Blockbuster and Hollywood entered into "revenue sharing" agreements that allowed them to get a jillion copies of a movie) - they were simply paying an inflated price set by what was essentially a monopoly for a particular title: the studio.
Parent
Autodesk = a true evil empire (Score:5, Insightful)
Those of you who have not had to deal with their software and their heavy handed approach to licensing and upgrades are lucky.
Re:Autodesk = a true evil empire (Score:5, Informative)
On top of that, upgrading almost never worked. It got to the point where an upgrade to Autocad meant loading up a new system image, then installing it first before anything else.
Parent
What about the ebay account? (Score:5, Insightful)
Re:What about the ebay account? (Score:5, Informative)
Parent
Likewise in Finland since a number of years (Score:5, Informative)
Re:Likewise in Finland since a number of years (Score:5, Informative)
Parent
Product Activation? (Score:5, Interesting)
What happens now with all the authentication and tying copies of software to the hardware it's first installed on such as Windows XP/Vista?
You have a right to sell your copy, but effectively you can't because it's been tied to your hardware.
Re:Product Activation? (Score:5, Interesting)
It seems to me that the courts have not typically ruled against "effective" rights violations*. There's no law that says Microsoft can't require your PC to phone home to verify it's using the same hardware as before. So while this decision could be repeated if Microsoft tried to stop you from reselling Vista and you went to court over it, it would probably not have any effect on that sold copy of Vista being useless because Microsoft wouldn't activate it.
* See Eldridge v Ashcroft, "retroactive finite copyright extensions, repeated infinitely" doesn't violate principle of copyrights being finite.
Parent
Open packet to read agreement. (Score:5, Interesting)
How many of you have found the actual license agreement is on the media stored in the packet? So in order to read the agreement, you have to open the packet.
Nontransferable Licenses in question (Score:5, Interesting)
If this hold, it will largely eliminate the non-transferable license in software.
And why shouldn't it? As long as the original owner retains no copy, selling an unused license simply keeps that copy under maintenance (maintenance charges frequently exceed sales revenue) and keeps the money flowing to the authors.
Nontransferable licenses are usually attempted by companies that have some sort of a near monopoly lock, so that not only do they gain from a new sale, they also gain from maintenance charges. If there are multiple vendors of equivalent software you really can't get away with nontransferable clauses.
As a software author, I'd gladly accept continued maintenance fees instead of new sales revenue. If my customers know that unused licenses have residual value when their projects are completed its good for me, and good for them. They buy extra licenses to handle the surge effort of development, and retain a few licenses for maintenance.
No lawyer (Score:5, Interesting)
there is NO SIGNIFICANCE to this ruling (Score:5, Informative)
Pfft. (Score:5, Informative)
The denial means that if Vernon's version of the facts are correct, he wins. The only question is whether his version of the facts are correct.
The case still goes on, but the opinion is good precedent for future cases with similar facts.
Parent
Vernor 'bound' by a license? (Score:5, Insightful)
Expect it to settle out of court (Score:5, Insightful)
Anyone knows how these laws work in Canada? (Score:5, Insightful)
That being said, does anyone know what the laws are in Canada regarding reselling retail, boxed Autocad, and if my client had a foot to stand on?
Re:Anyone knows how these laws work in Canada? (Score:5, Insightful)
And that's why the get away with this crap. People willing to be shit upon for convenience.
Parent
Google's Attorney's Blog (Score:5, Informative)
Patry is Senior Copyright Counsel for Google.
Re:Antiquated Thinking (Score:5, Insightful)
Parent