Topic: "Vernor v. Autodesk - Cross Motions to Dismiss - First Sale Case"

[Mark]

http://www.groklaw.net/article.php?story=2009093014420419

I didn't know this case was still going on. Did you? Vernor v. Autodesk? When Vernor prevailed against Autodesk's motion to dismiss in May of 2008, I guess I just assumed it got settled. The order [PDF] was so powerfully on Vernor's side as far as first sale was concerned, I thought it was game over for Autodesk. Not so. The parties simply went forward, and on the 29th there was a hearing on cross motions to dismiss. This is all happening in the US District Court for the Western District of Washington. That's the state, not the capital.
This is the case about reselling software on eBay, as you'll recall, and since first sale is such a hot topic around here, I thought you'd like to see the motions.

[CAB]

Some very interesting comments at the bottom.
Looks like the Lawyers are making plenty of money on this one.  :kewl:

[GDF]

Some very interesting comments at the bottom.
Looks like the Lawyers are making plenty of money on this one.  :kewl:

ditto

[mjfarrell]

the Judge will be doing AD a favor should he allow the case to be dismissed...

[Mark]

http://www.mediapost.com/?fa=Articles.showArticle&art_aid=114662

A federal judge has rejected a claim by Autodesk that it can restrict sales of its software on eBay. U.S. District Court Judge Richard Jones in Seattle ruled that eBay vendor Timothy Vernor has the right to sell software that he legitimately purchased, despite Autodesk's contention that it only sells licenses to use its software and not the software itself.

[Mark]

Autodesk wins copyright appeal

The 9th Circuit U.S. Court of Appeals reversed a lowercourt ruling that had allowed plaintiff Timothy Vernor to sell Autodesk's computer-aided design software for architects. Since Autodesk licensed the software to its first purchaser, federal copyright law does not allow resales by individuals like Vernor, the court ruled.

[Dent Cermak]

The final outcome of this case is easy to see. AutoDesk's pockets are much deeper than those of Tim Vernor. They will keep it in court as long as it takes to find that final addle brained judge on a high court that will rule in their favor. Vernor's funds will run out long before AutoDesk's bank account does. This is a standard tactic with any large corporation when they have to go to court. look at all of the large court settlements that folks have won against insurance companies, yet the plaintiff has yet to see a dime. It's a flaw in our current judicial system. "Right" and "Justice" mean nothing in today's courtroom.

[DaveWish]

Kudo's Mark on the post. I put up some info on this on woodweb.

Here are my first comments:
would have to say that everyone should be aware now, if a vendors licence agreement says, "You don't own it"., you don't. Ask for it, now that we know, or believe what they say in there (the decision link below) about it taking an Act of Congress to change, or

I am disappointed, that only now does a previous purchaser know for sure if what they have is theirs or not. They didn't know the court would find this way.

For less space here, note this part here:
C. Vernor’s four counterarguments are not persuasive
1. The district court’s decision concerning indefinite
possession

All it says to me is "Read the License" on all software. My customers own their copies. I find it unreasonable and the implications on development, possibly staggering. Get it in writing, "You own the software and can sell it and claim it as your business asset."

It seems every time this issue was heard, the court sidestepped, and based their decision on a bunch of side steps, but they were thorough and mentioned Congress.
Comments?

https://docs.google.com/leaf?id=0B3vwSdJCbc7oY2I2OWU2MGEtMDk3Yi00YmZmLTgyYzEtNTBhNzk3Nzk2OWQ0&sort=name&layout=list&num=50

So apparently, the en banc court (full bench at the 9th, of probably actually only 11 of the 28 judges) can reconsider it., or the Supreme Court, or an Act of Congress.

The case will be appealed to the Supreme Court, if the en blanc court does not take it, but they may not even hear the case. I am sure they will if enough people raise awareness. The judges must decide to hear it en blanc. Sounds like it will take a lot of letters. What I don't like, is that he bought ACAD14 from an architect who upgraded and kept and used the upgraded copies. That's a real big deal. That's different from selling only the (upgraded and probably discounted) originals. The case wasn't the architect selling his only "most current" unused copies. These ELUA's tell you you must destroy your old software, etc.

Sounds like its time for consumer advocate trademark like... "YOM"
(You Own Me) on the outside of packaging. This way you know you will own it before opening the shrink wrap (which usually means you cannot return it to a store).

To me, if this is interpreted broadly and upheld, the court just devalued every American business using computer technology installed with ELUA's that seemed to contradict the First Sale Doctrine.

Think about it...
Not only do you need the approval of a software vendor to sell the software with your business (hoping your business relationship is good (even if they ripped you off), but they also have to approve license transfer (they could require a large sum of $ and even a 30 page test of computer competency and require they "like" the new “licensee”, or you can't get a dime for it. Sigh.

[dgorsman]

If it is ruled legal to resell the software and the developer has to accept that, then whats to stop somebody from purchasing a single seat and selling copies with the activation code at half cost?  Its really hard to get the investment back if virtually nobody is actually paying for the product. 

The thought occurs that if the time and effort people put into trying to make illegal situations legal ones, were to be spent doing something productive we would be much further ahead.   

[Mark]

If it is ruled legal to resell the software and the developer has to accept that, then whats to stop somebody from purchasing a single seat and selling copies with the activation code at half cost?  Its really hard to get the investment back if virtually nobody is actually paying for the product. 

That would be illegal under the first ruling too.

The thought occurs that if the time and effort people put into trying to make illegal situations legal ones, were to be spent doing something productive we would be much further ahead.   

How is selling something you purchased illegal?

[DaveWish]

From the opinion:

Autodesk distributes Release 14 pursuant to a limited
license agreement in which it reserves title to the software
copies and imposes significant use and transfer restrictions on
its customers. We determine that Autodesk’s direct customers
are licensees of their copies of the software rather than owners,
which has two ramifications. Because Vernor did not purchase
the Release 14 copies from an owner, he may not
invoke the first sale doctrine, and he also may not assert an
essential step defense on behalf of his customers. For these
reasons, we vacate the district court’s grant of summary judgment
to Vernor and remand for further proceedings.

Then note this:
7. The parties dispute who bears the burden to prove the first sale or the
absence thereof in a civil case, a question we have not yet resolved. Since
the facts in this case are undisputed, including the chain of software transfers,
we need not decide the issue.


They made it clear and the little comment is of little significance.

"We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions," said the ruling. "[Original owner] CTA was a licensee rather than an owner of copies of [the software] and thus was not entitled to invoke the first sale doctrine or the essential step defense."

I think it violates the constitution, but they don't seem to think so. I can see a license, up to that point, but they disagree and think your personal property should, and can be, owned by others, if you sign away your constitutional rights. All your base belong to us. I didn't know you can legally kill someone if they okay it, but I guess that's naive, as they do it in businesses working people to death all the time.

[dgorsman]

BIG problem - you constitution is not mine.

[JCTER]

BIG problem - you constitution is not mine.

Then why follow a court case in our court system?

[dgorsman]

Repercussions.  A bureaucracy that big makes substantial waves.

[JCTER]

Repercussions.  A bureaucracy that big makes substantial waves.

Then -our- constitution -is- relevant.