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
    Anonymous Coward, 14 Sep 2007 @ 11:04am

    first, i don't think eBay takes down auctions of the actual game of World of Warcraft. They take down listings of accounts and gold/items for sale. this is from their terms of service agreement. now, i think the issue is that there is an elua for the actual game. but there is a tos agreement for the "monthly" subscription you purchase. you can cancel your subscription at any point in time.

    plus, the items/characters in WoW aren't a direct "use" of the game. a better example would be AutoDesk saying it's illegal to charge people for drawings you create with AutoCAD. i.e. you use AutoCAD to create a drawing, which you sell. you use WoW to create items/gold/characters which you sell.


    Now, as for the poster who stated AutoCAD has a "not resellable" on the lable.. that's something different.

    but even so, contracts can be made that "ignore laws" and those have been deemed illegal. so idk...

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