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
    RM, 21 Jul 2008 @ 10:03am

    Subscription software

    It won't be long before lots more software will require an active subscription to run, verified at each launch or at regular intervals. Most, if not all, antivirus products do this already, and Microsoft is well on its way with mandatory activation, the next step is simply flipping the "switch" in the software that tells it to check on every launch and if it doesn't receive a response from a Microsoft server that the user is still paying for his license, a pretty little popup window appears telling him he can't use the software anymore unless he goes to the website and renews his subscription. I suspect MS will activate this in the next couple of versions of Windows and Office products.

    This will be the technical end-all and be-all of software license versus purchase discussion. At the point that your software doesn't work unless you're paying for a subscription, there won't be any doubt.

    As for this case, though, I would defer to the EULA in the Autodesk packaging. If that EULA specifically states that he purchased a license to use the software and doesn't have a right to resell it, then he doesn't. If the wording is ambiguous and/or doesn't outline his rights clearly, then he has a right to challenge the company. It's already laid out for him, and if it's not, then that's Autodesk's fault, and they need eat this one and begin a process to clarify the wording of their EULA in future versions and issue an update or patch to current software that changes the EULA within the software and requires the user to accept it to continue using the software after the patch.

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