Federal Court rules that original software may be resold and Autodesk are Copyright Nazis

[Commie Pinko Dirtbag]

OK, so I made up that last part. Sue me.

http://aecnews.com/news/2008/05/21/3414.aspx

Federal Court Slaps Down Autodesk Arguments, Favors eBay Seller
Posted on Wednesday, May 21, 2008 10:02 PM
(Editor’s Note: The history of this case is not included in this article; refer to the links at the end for background.)

The US District Court in Seattle on Wednesday ruled in favor of eBay seller Timothy S. Vernor, denying Autodesk’s request for “summary judgment” against Vernor. In doing so the court ruled that Vernor had the right to appeal for relief from Autodesk actions based on the “first sale” doctrine of copyright law. In finding for Vernor, Judge Richard Jones’ ruling dismissed most of Autodesk’s wide-ranging legal arguments as without standing.

If allowed to stand, the ruling effectively pulls the heart out of the license agreements that accompany most retail software products on the market today. You can be sure that not only Autodesk, but most software companies, will take action of some sort in response. It is unimaginable that Autodesk will not appeal this decision.

The case is not over; the court has ordered both sides to sit down and discuss whether the case should continue and settle Vernor’s claim that Autodesk engaged in unfair trade practices in violation of state law in either California (Autodesk’s home) or Washington state (Vernor’s home). Their report to the court is due June 27.

The 21-page ruling sifts through the many and varied arguments raised by both parties. It did so by first settling the issue of whether or not the “first sale” doctrine applied. Once the court found that “first sale” applied, his findings then used “first sale” as a lens for examining all other claims. (More at link)

[madinmaryland]

1. Wow!

As an autocad user... :wow:

[Fredda Weinberg]

2. If you want software, you'll have to respect licenses. There's no free lunch n/t

[Commie Pinko Dirtbag]

4. Publishers do NOT have the right to demand whatever the hell they like in their licenses.

The court ruled that Autodesk's license violated the First Sale doctrine. Do you disagree with that?

[Fredda Weinberg]

8. I consider an agreement an agreement. Don't like it? Don't license

BTW, I used to train AutoCad users, so I know the expense involved.

[depakid]

9. Most of these "licenses" are actually adhesion contracts

that the end user never reads before purchasing the product, so it shouldn't surprise anyone that many of their provisions are likely uneforceable.

The classic adhesion contract of course is the ticket one gets when they park or vallet their cars. Many of the disclaimers are unenforceable in those, too- for the same reason.

[Fredda Weinberg]

10. I was applying ethics, not the law. YMMV, but if you want valet parking

You're going to pay for it, one way or another. Perhaps you prefer to be fooled, as you are not concerned about niceties like spelling?

[depakid]

12. All I'm saying is that provisions of these types of "contracts" are often unenforceable

as the vendor in this case found out.

Here's a lay definition:

adhesion contract

n.(contract of adhesion) a contract (often a signed form) so imbalanced in favor of one party over the other that there is a strong implication it was not freely bargained. Example: a rich landlord dealing with a poor tenant who has no choice and must accept all terms of a lease, no matter how restrictive or burdensome, since the tenant cannot afford to move. An adhesion contract can give the little guy the opportunity to claim in court that the contract with the big shot is invalid. This doctrine should be used and applied more often, but the same big guy-little guy inequity may apply in the ability to afford a trial or find and pay a resourceful lawyer.

http://dictionary.law.com/definition2.asp?selected=2325

[Name removed]

15. Deleted message

Message removed by moderator. Click here to review the message board rules.

[depakid]

17. Well then, I have to question your ethics

because writing (or agreeing to comply with) a contract that's unenforceable or unoscionabal isn't what I'd consider sterling ethics. Now lawyers have been known to insert all sorts of clauses into contracts that they have reason to know cannot be enforced (and hopefully, they're wise enough to inform thei clients of that).

Why do they do it? To deter unsophisticated or timid people into decding away their rights under the law.

When considered in that light, seems to me like ethics is a pretty slender reed to be basing ones aruments or opinions on....

[bean fidhleir]

18. Just out of curiosity, what does "ethics" mean to you, Fredda?

Do you have a standards-based definition for what "ethical" should mean, or is it something like "whatever is, is ethical"?

[sudopod]

23. Stephen Hawking is my uncle

General relativity, let me show you it.

[Squatch]

24. If living with a judge makes you a legal expert

then, since I live with an artist, I must be Picasso.

[Commie Pinko Dirtbag]

25. What's unethical in what depakid said, or in the excerpt he posted? -nt

[Solon]

14. A license is only good if it actually works within the law and the rights you have as a user...

of the product. Many EULAs actually try to restrict fair use rights to the software that the software makers sell to you, which automatically makes that section of the EULA unenforceable. Its still perfectly ethical to exercise those rights, simply because no contract, whether signed or not, can forbid you from performing a legal action, or give up your rights unless it is under strict guidelines stipulated in the law.

[Fredda Weinberg]

16. How legalistic of you. Sign and ignore. OK ... but don't ask to be my client n/t

[FatDave]

21. Technically, they're not selling you the software

They're selling you a license to use the software. It's a loophole that allows them to make all kinds of ridiculous claims. For example, since you don;t own the software, you have no right to resell it.

To hell with them I say. If I need CAD, I'll learn BRL-CAD, thank you. The only commercial software I use these days is playstation games.

[Silent3]

19. So you believe that if someone selling software...

...puts all sorts of crazy, restrictive terms into a purchase agreement, even legally unenforceable terms, the buyer should nevertheless feel ethically obligated to honor those terms?

I'm a software engineer myself. While I make most of my money working as an employee, I sell some software as shareware and occasionally create custom software under contract. My vision of success in the software business is making something that people want to buy because it's so great, and better than the competition, not scheming for ways to lock people into dependency on my software, then having fun seeing how much crap I can get them to accept and agree to because they have few, if any, practical alternatives to buying my software.

Maybe that's why I'm only comfortably middle class and not stinking rich.

In general, yes, I do understand and concur with the principle that one should abide by the agreements one makes. When "agreements" are completely lopsided in negotiating power, however, when all you get is "take it or leave it" (like the basic "click-through" agreement for nearly all software installation these days), I don't have a big problem with someone not taking the terms of such an agreement very seriously.

[cemaphonic]

3. Nice

Most IP lawyers I know have long been of the opinion that those EULAs aren't worth the paper that they are printed on, but it's good to finally get a solid ruling related to this. With that out of the way, I would think that first sale would clearly apply. Hopefully it will stand up to appeal.

[mrreowwr_kittty]

5. Can someone please explain this to us non-techies?

:shrug:

[Commie Pinko Dirtbag]

6. You buy a copy of Microsoft Office. It comes in a box with a CD/DVD and some manuals.

You install it on your computer. You use it. Then you find that you no longer need it. You sell the box with all its contents on eBay. (But first you have to UNinstall it from your computer or else you WILL be committing copyright violation.)

Microsoft throws a hissy fit and calls you a pirate. According to this decision, it has no right to do so because you have the right to resell something you bought. That's called the First Sale doctrine, i.e., after an item is sold for the first time, the original seller can no longer control how it's transferred.

A good lawyer could explain this in a way that's both simple and accurate; I just attempted to do so.

[mrreowwr_kittty]

7. Okay, so as long as I don't keep that copy of MS XP on my computer and then sell it I'm okay.

But if I do keep it on my computer and sell a COPY of it, thus being a distributor and not a reseller, THEN I'm in the wrong. Okay, I think I understand. Which explains why my friend's (e-Bay purchased) copy of MS always has a warning that it's not an official copy and it needs to be registered. According to him, it was really cheap. ;)

[Fredda Weinberg]

11. You'll get lost @ upgrade time n/t

[Commie Pinko Dirtbag]

27. Unless what he upgrades to is, say, Linux. (UPDATED)

Check this out: http://www.google.com/search?q=windows+refund

[Mojambo]

13. Little late for me.

I used to deal in the secondary market for computer software.

All the new licensing restrictions pretty much blew a hole in that enterprise.

[The River]

20. AutoCAD is A Bloated Piece of Crap

and upgrades are a scam.
There are better programs for
most CAD applications.

[FatDave]

22. The most popular is rarely the best

This applies to nearly everything, software included. Windows is crap. Oracle is crap. Internet Explorer...well, you get the picture.

[Commie Pinko Dirtbag]

26. Like the Avis ads

"We're 2nd. Therefore, we try harder."