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
    Barrenwaste, 15 Sep 2007 @ 8:28am

    1) No contract made between parties supercedes federally granted rights...ever. So it doesn't matter what he signed or didn't sign. If, as it has been stated, this kind of thing has been deemed a violation of rights then it doesn't matter whether he signed or not, he will win.

    2) Resale of personal property, whether physical or not, is a right. Whether it's a license or a tractor, you bought it and it is yours to do with as you see fit. There is a bit more to it than that, but for our purposes, legality of resale rather than copywright infringement or patent law (ie. claiming said product was your work), then, regardless of contract, you can resell it. This has been upheld in courts before, I have no doubt it will be again.

    3) Forcing the buyer into an unstated contract is illegal. I'm surprised, really, that a major lawsuit hasn't been brought against software companies, but, then again, our laws are such a muddle of incomprehensible double talk that the average citizen has no chance in deciphering them, let alone memorizing all of them. What I am getting at here, is that any software company that doesn't tell the purchaser that they must enter into another agreement before using the product is in violation of the law. They must inform the party before the purchase is made. Though it could be argued that the practice has been in effect long enough that the agreement is expected, though unstated. That would set a really bad precedent, but then, it wouldn't be a first.

    4) Suing Mc Donalds for $10 million for bad product is to much, suing a major software company for violation of rights and loss of livlyhood, on the otherhand, is not. It has nothing to do with how much the man lost and everything to do with stopping said company from using the constitution as toiletpaper.

    5) My spelling, sucks...deal with it. My name is not Webster and whether I can spell or not has no bearing on the validity of my statements.

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