Court Says Reselling Software Is Okay

from the good-news dept

Last year, we wrote about a case filed by an eBay seller against Autodesk, claiming the company unfairly prevented him from reselling used copies of Autodesk software that he had legally purchased. Basically, every time the guy listed Autodesk software, the company would send a DMCA takedown to eBay who would take it down. Each time, the guy would send a counter claim, which Autodesk would ignore, allowing the software to go back on the site. However, with so many takedown notices, eBay banned his account for abuse -- even though he successfully responded to each claim as being false. For that, he sued Autodesk. Autodesk moved to have the court dismiss the case claiming that the seller had no right of first sale because the software was "licensed" rather than sold. If that sounds like weak semantics, you've got a point... and it appears the court agrees with you. In denying Autodesk's request to dismiss the case, the court indicates that, even though the case law covering this issue often varies, it believes that the software has been sold, not licensed, and therefore the right of first sale does exist on Autodesk's software. The case should now proceed if Autodesk doesn't quickly show up with an offer to settle the case quietly (which it might). Assuming the case does go forward, it's going to be worth watching closely, as it will have important ramifications for the right to resell software you purchased.

Filed Under: auctions, autocad, dmca, right of first sale
Companies: autodesk, ebay

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  1. identicon
    crazyburns, 22 May 2008 @ 3:22pm

    Re: Reselling software

    Well first off, no one reads a EULA and just because it says that a user cannot resell the software does not make it legally binding. If the EULA said you must give your first child to them would you listen?

    "First: they used the software and most likely created with it. This is where software is so different - it is not an item like a sweater or a bike. They "used" the software - that is what the license is for. They did not "own" the software."

    By this same statement, if I buy hammer I can create (or build) a house with it. I "used" the hammer. So does this mean I can't sell the hammer? The only real difference between software and physical items is that software (and all digital content) can be cloned endlessly. The difference is that you can't modify the original program and sell it as your own, wheras if I buy a bike I can repaint it and put a different seat on it and do whatever I like to it and because it is my bike the manufacturer can't do a thing about that. Software is an Intelectual Property, so its really just a collection of ideas written down, like a book, which can be resold, but if you copy the text from the book and try and sell that you are violating copyright.

    Your second point does make sense about upgrade licensing. Typically, though to reinstall the upgrade copy you still need the original copy.

    "Third: we haven't even touched on tech support. Is the person who would buy the resold software supposed to be able to call tech support if they have a problem? is Autodesk supposed to eat that cost?"

    Why would Autodesk have to eat the cost? They were already paid for the copy that is being supported. The original purchaser no loger needs the support, they sold the software so the support transfers with the license.

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