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

from the ah,-copyright-law dept

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.

Filed Under: copyright, dmca, ebay, first sale
Companies: autodesk, ebay


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  1. identicon
    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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