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
    pegr, 23 May 2008 @ 11:02am

    Why do people keep repeating this fiction?

    You don't own a license. A license is a contract with the vendor. Unless you sign a contract, there is no license. One does not "own" a license. This is a fiction propped up by years of meaningless EULAs bound within software packages.

    You can, however, own a copy of a copyrighted work. Apart from the restrictions imposed by copyright law (title 17, kids), you can do anything you want with the legal copy that you own. Selling your legal copy to another is legal and does not require the approval of the copyright holder.

    About EULAs: It's a sale and not a license if it looks like a sale. Go to Best Buy and "purchase" some software. That's a sale. It makes no difference that there is a slip of paper in the box that says otherwise.

    Did you pay sales tax? States do not charge sales tax on renumeration that changes hands within the terms of a contract (license). If you paid sales tax, it's a sale. Ignore the EULA.

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