Federal Court Says First-Sale Doctrine Covers Software, Too 509
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.
Not really adding anything important but... (Score:5, Insightful)
Re:Not really adding anything important but... (Score:0, Insightful)
then the little guy is out of business...
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:Not really adding anything important but... (Score:3, Insightful)
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"?
What about the ebay account? (Score:5, Insightful)
Re:Not really adding anything important but... (Score:2, Insightful)
More details about how this all began can be found here [blog.com]
Re:Workaround (Score:5, Insightful)
Re:Not really adding anything important but... (Score:5, Insightful)
If I understand this, in short... (Score:2, Insightful)
Re:Antiquated Thinking (Score:5, Insightful)
Re:Not really adding anything important but... (Score:2, Insightful)
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...
No, then maybe the little guy needs to reevaluate the price of his product (or levels and quality of support) since people are willing to spend considerably less to buy an unsupported version of the product from ebay. If people don't need or want support then he could look at selling his product for substantially less then he currently believes it to be worth.
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.
Re:Woot! (Score:3, Insightful)
Vernor 'bound' by a license? (Score:5, Insightful)
Re:Antiquated Thinking (Score:2, Insightful)
Re:So true (Score:5, Insightful)
Expect it to settle out of court (Score:5, Insightful)
Re:Not really adding anything important but... (Score:5, Insightful)
I hate to get overly technical... (Score:3, Insightful)
Even so, it's still an amazing ruling.
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: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?"
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.
Comment removed (Score:3, Insightful)
Re:First-Sale cuts both ways (Score:3, Insightful)
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?
Re:So true (Score:5, Insightful)
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.
Troll?? (Score:5, Insightful)
As for CD's? It is as dead as AM radio (AM Radio has a dirty history, read Free Culture)
Re:Not really adding anything important but... (Score:2, Insightful)
The number one problem with 'activation' is that you are completely at their whim with regards to how reasonable they make things, and they can change their policy at any time they like.
In a year or so, that formerly-hassle-free call to Microsoft for a new key might very likely be met with a polite refusal and a pitch to upgrade to Vista.
Music, not movies (Score:5, Insightful)
That argument works just fine for music, but IMHO not so great for movies.
Reason being, a good song is just that - a good song. Three or four people with a few thousand dollars worth of gear can make some damn good music. Put them in a million dollar studio and the quality doesn't really go up all that much.
A good movie is a lot more difficult. Far more expensive. While scripting lately has sucked, Hollywood can't really be beat in terms of technical prowess. Unlike music, the more money you throw at a given project the better the results. Watch some of the other CDs that came with your Lord of the Rings set to see just how much went into making that, for example.
To put the argument on the other side of the court - how about porn? The one movie market where the large retailers and the home producers are on close to equal footing. Reason being - no script, no special effects, no huge budget. All you need is a room, a camera, and a few willing people. And homemade porn sure hasn't put a damper on the professionally produced variety.
I think the music people are far more worried about the "barrier to market" argument. And the litigation record would probably back that up. It's the RIAA that's going mad with the lawsuits. Compared to those folks, you hear hardly a peep from the MPAA.
Re:Not really adding anything important but... (Score:5, Insightful)
Architects will have a fully-updated copy of Architectural Desktop, while most machine shops will already have a 3d solid modeling package that supports coordinate systems that CNC cabs, etc. can interface with.
The guy who bought the software off of ebay was probably a kid in high school taking a "technology" class. It'd make sense that the same kid who got a deal on an old version of crappy software might end up as an engineer some day and be responsible for sourcing a CAD package for his employer.. Good think Autodesk nipped that in the bud before they saw another batch of site licenses.
Honestly, I don't understand why companies chose to pick such terrible battles. Any shop that operates with pirated CAD packages will already have the latest version fully cracked--in their native language to boot. (I'm looking at you, China.)
Re:Music, not movies (Score:4, Insightful)
Good live-action movies can be filmed on a limited budget, as well. Just because 70% of all new movies have huge explosions and/or funky effects there is no requirement for all movies to be that way. A movie like Run Lola Run [wikipedia.org] could be made without many effects requiring expensive equipment (like camera cranes).
Of course those movies will cater to a different audience than big SFX-heavy productions, but I do think that there might be a genuine market.
Re:So true (Score:3, Insightful)
So the boat building video guy needs to come out with a special edition. Make it longer, more DVDs, printed extras (and more restrictive or at least well-defined licensing terms in print and on-screen). For that matter, branch out into a related or new area, like backyard play structures -- we bought one of those -- a dealer "demo" at half price -- that still set us back almost $5K. There has got to be a way to teach people how to make one.
Re:Workaround (Score:3, Insightful)
Company's *don't* have some magical right to make a profit. Just because they spent money in developement doesn't mean they get to make a profit. There are specific rules on how IP is protected, and (legitimate) reverse engineering does not break copyright, patent, or trademark protections. Companies know what these rules are before they develop their product, and coming along later and saying "people behaving legally are hurting our profits, so please change the laws" is something we have *far* too much of rght now.
Now, of course, Blizzard can say "if you want to use our servers, we require that you use our client" because that's a contract negotiation for the online service, nothing to do with software. But if someone reverse engineers the sever, and offers their own game with original content, Blizzard doesn't have a leg to stand on.
Re:Antiquated Thinking (Score:3, Insightful)
Re:Not really adding anything important but... (Score:3, Insightful)
Re:Workaround (Score:5, Insightful)
Where did I say that? There is no contract. At most, there is a EULA which is non-negotiable and is not even presented until after the purchase is completed. A contract is a documented agreement between two parties for an exchange of money, goods, services, etc. The EULA is not even presented until after that exchange has been copleted. How can it be a contract?
If you install a piece of software, you click through an agreement. You are party to a contract(-ish thing, to get technical).
No, I click the let-me-use-what-I-have-already-paid-for button that is labeled "agree".
If one of the clauses is that you cannot resale the software, and you have agreed to that clause, then why do you all of a sudden feel entitled to sue because you should be able to resell the software (when you agreed that you wouldn't per the contract)?
You didn't read my post, did you? Why are you responding to it? Did you miss the paragraph about the EULA explicitly stating "You may permanently transfer all of your rights and obligations..."? Isn't one of my rights the ability to use the key that is part of the package?
Don't give me bullshit about how you didn't see the license until you bought the software, because you can still return the software if it's not been installed yet. It's the law.
The bullshit part is the part about returning it. Most stores will not accept returns of opened software. Mail-order stores will not pay shipping for the return or refund the original shipping cost even if they were to accept the return. It's not the law; it's a provision of the EULA which the vendors were not a party to.
I just got done with a software licenses class at my law school (wrote my paper on open source licenses, actually), and while I may not like the terms of these clickware license agreements, in my opinion they are valid and we should follow them or stop buying the software / return it and let the companies we don't like how they do business.
That's your opinion, good. My opinion is that they are only as valid as we allow them to be. They are unconscionable, primarily because they are not presented until after the sale is complete and attempt to impose conditions and restrictions that were not agreed upon at the time of the sale. Making it unusable by not accepting the EULA after I have purchased it and installed it has wasted my time and money. Those conditions and restrictions should be presented in full at the time of the sale.
Thoughts? I'd love it if there were some argument to make me switch sides on this issue, as I really want to be on the other side, but I don't think the better arguments are on the other side. I think they're on the side of "obey the terms of the contract."
In general, I'm on the side of "obey the law". I don't know where exactly the law stands on this yet. A EULA is not law. A EULA is a post-sale unilaterally imposed non-negotiable statement of restrictions and conditions with the appearance of a contract that must be agreed to in order to use what was already purchased. Contract law may be relevant to this, but first we have to determine if a EULA really is a full-fledged contract. My opinion is that it is not.
Re:Workaround (Score:5, Insightful)
And license violation doesn't automatically mean copyright infringement, either.
Re:Workaround (Score:3, Insightful)
The First Sale Doctrine *is* also law, and contracts and agreements do have to follow the law.
Re:Workaround (Score:5, Insightful)
No, I'm suggesting that the terms of the contract should be agreed upon before the sale is completed, by which I mean money changing hands and me leaving the store with the item I purchased. Anything after that point is unreasonable.
Hell, the current regime still permits post-purchase refusal and refund, but what you're suggesting would make it worse for the average consumer.
Yes it does, but they make it difficult to get the refund, they make it time consuming, and you usually don't get a complete refund, even if you don't count the time wasted. It may make it worse for the average consumer in the short term. In the long term, outrage over that would likely cause the publishers to reduce the contracts to the minimum possible and present more reasonable terms that both parties agree with. As it is now, most people click the let-me-use-what-I-purchased button whether they agree with (or even read) the EULA or not.
Finally, the time of the sale is not the end of the license formation process, and it does not have to be. Again, how do you think people in faraway lands have done business for decades? By mailing contracts back and forth, and including partial performance as part of the deal. You buying the software is partial performance of the agreement. Later, when you click "agree," that's the rest of the performance. The agreement is not finalized until you've fully performed. It's basic, black-letter contract law.
There's a significant disconnect then. I consider the agreement complete when I say "I'll give you this money for that item" and the cashier says "done". The piece of paper hidden inside the box is not part of the agreement; that is something that comes after and says "you can't use this thing you've already paid for until you agree to our amendments to your purchase."
This has never been a valid argument for why a contract or license is crap. Consider this: you read a contract before signing it. You decide you don't like it. Do you now get to say all contracts are unconscionable because they waste your time since you have to read them?
The waste of time is the change of the terms of the agreement after the sale is complete. I have completed the purchase. I have returned home. I have installed the software. Only then is the EULA presented. If it had been presented at the time of purchase, so I could consider it then, if I should decide the EULA was not acceptable I could walk away right then. Now I have to uninstall it (in some cases), return it to the store, convince customer service that the EULA says I have the right to a refund and that they have somehow agreed to that EULA. For example, I spent considerable time reading through all the contracts when I bought my house. The contracts were signed before payment was made. The same is true for my car. I did not consider that time wasted. In both cases, after the sale is complete, nobody came running up denying me entry to my house/car until I signed an extra contract that had not been presented and agreed to before the sale completed.
AM Radio (Score:5, Insightful)
AM radio was a big and powerful medium long before tv, but there were some serious drawbacks (like that annoying perpetual humming in the background). Edwin Armstrong, scientist, was commissioned to improve on AM radio on the promise that big media would license it. Mind you they held all the patents for all the technology and the power to control the future technology in many ways money can.
What was totally unexpected was Edwin went on to develop FM radio, something beating all the problems of AM, and totally outside the scope of big media control. Just as Edison tried to do to Tesla with AC power, Edwin was discredited and sued into oblivion, and during all the distractions of a European war, big media managed to buy protection from congress to ensure FM would have to stay within a narrow band of frequencies and transmission power, despite the fact FM was and is superior in every way. Note:limiting transmission power was necessary to ban it from being usable by the government or telecoms which would have required the kind of power that was only legal for AM, for trans-American and transatlantic broadcast. Edwin, eventually old and ruined, seeing what he knew was great destroyed, went on to blow his brains out.
And today we have a strong and thriving AM radio industry, a towering zombie icon to political corruption and an eternal symbol for the power of money!
So as I said, their dead like AM radio