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
    Roxanne Adams, 14 Sep 2007 @ 10:34am

    Ebay Does This All The Time

    I have had this done to me by both Microsoft and some third-rate music company. In the case of Microsoft, I listed my Microsoft Office 97 for sale. It was a full version, not an upgrade, OEM or academic version. I had in the intervening years thrown out the box and the books (in those days, software packages came with about 10 pounds of manuals and user guides). When Ebay sent me the auction cancellation notice, what was I going to do, fight it?

    A similar thing happened with a music CD that did not say demo, not for sale, etc., anywhere on the package or on the CD. A few days after listing the CD on Ebay, I received an auction cancellation notice from Ebay. When I contacted the music company, I received in return an extremely arrogant email from their legal department, telling me that they were SORRY that I bought a CD that I was NOW STUCK WITH. The bizarre thing was that none of those words in caps were in my original email to them. I never said I was 'stuck' with their POS music CD. I just wanted a legitimate answer to my question: tell me how I'm supposed to know that this was a CD produced 'in-house' and wasn't meant for resale, if it wasn't marked as such anywhere on the package or on the CD?
    Not surprisingly, I never received an answer to my question. Nor did the idiots respond to my second email, which offered to send them the CD back, in pieces, if they would be so kind as to pay the cost of return postage.

    I am not Bill Gates, so it's not like I have the $$$ to fight these things in court. If I did, I would, even though it was only an outdated software package worth $50, at most, and a lousy $10 music CD, because it's the principle of the thing, and at least in the instance with the music CD, I would have prevailed in court, albeit at a great financial expense, after paying for the lawyers fees.

    What really bothers me is that Ebay simply accepts the word of the person who claims to be the copyright holder of the merchandise, without first investigating the situation. They fall back on their mantra 'We are just a venue' if you try to get any kind of customer service action from them.

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