back to article Lawyerless eBayer sues Autodesk over garage-sale miracle

YouTubers have Christopher "Jedi" Knight. And eBayers have Tim "Happy Hour" Vernor. In much the same way the light-sabred Jedi Knight stood up to the DMCA-waving lawyers at Viacom, defending the rights of YouTubers everywhere, Happy Hour Vernor is leading the charge for eBayers, intent on curbing the DMCA doings of software …


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  1. Chris

    Typical American

    Waaaah, you won't let me do what I want, waaaaah. I know, I'll sue you! This guy has no legal leg to stand on. He's suing Autodesk because eBay suspended his eBay account, preventing him from selling stuff on eBay? Correct me if I'm wrong, but shouldn't it be eBay on the receiving end? As for not getting a lawyer, could it be because he couldn't find one in his area who's unscrupulous enough to take the case?

    While this may not be a case of copyright infringement (because he didn't actually copying anything), he *is* attempting to sell and distribute unlicensed software. I would think there would be some law against that, but I could be wrong. Though, speaking as a consumer, I find those "non-transferable" clauses ludicrous. As long as you use the software on no more than the allowed number of systems at a time, there shouldn't be a problem. That also means that you should be legally allowed to install the software onto any number of systems as long as you only use it on the allowed number of systems at once (for example, I should be able to install AutoCAD on five systems, as long as it's only running on one system at a time).

  2. foxyshadis

    EULAs are the ultimate catch-22

    The trouble is that most companies _won't_ let you return the software. Even if the license specifically says that you should return it to the retailer if you find the terms disturbing and don't accept the license, the retailer won't take it back over justified fears of piracy, and the manufacturer won't accept it because they say their involvement ends at the retailer. Ed Foster of GripeLog goes over this topic in depth. Some licenses are so overreaching that they claim you have automatically accepted the contract simply by opening the box, even if the only place the license shows up is on installation of the software. Read over their terms and it'll be obvious that most publishers want the benefits of licensing with sales, without the pesky downsides like free upgrades, replacement media, and service.

    So far the case law on the validity itself of EULAs is murky, the major decision trumpeted in their favor is blizzard vs bnetd, but the recent ruling that sprint's contract of adhesion is invalid puts things in a new light. Hopefully this case will finally stop Autodesk's perversion of the first sale doctrine.

  3. Darren Coleman

    Watch your targets

    Autodesk wouldn't have told eBay to yank this guys account, they would've simply called for the specific *auctions* relating to their product AutoCAD to be pulled. Autodesk would have no control or jurisdiction over the guys eBay account, so I can't really see how they can be persued for "loss of income" damages (outside of the value of the software Autodesk wanted removed from eBay).

    This is exactly why the guy needs a lawyer, so he can actually advise him of which entities are responsible in this whole affair.

  4. steve

    UK Law...

    I'm not a solicitor but I have studied contract law...

    1) and as far as I'm aware the contract is formed at the point of sale. The conditions of the contract are then set in stone at this point. Neither party can then add terms afterwards.

    As such in theory a shrink wrapped licence should be unenforceable

    2) UK Sale of Goods Act enshrines the transfer of title on purchase, regardless of whether the sale is B2C or B2B. The only way to not transfer a title, and thus to actually be able to control the behaviour (ie limit resale) ability of customer the item must be sold as a service and not as a good.

    I'm not aware of a specific UK test case for software licences, but I can see parallels with several major contract cases that should come out in favour of the consumer.

  5. Anonymous Coward
    Anonymous Coward

    Re: Typical American

    "As for not getting a lawyer, could it be because he couldn't find one in his area who's unscrupulous enough to take the case?"

    Funniest thing I've read all week! If there is money involved you will ALWAYS manage to find a lawyer willing to take the case, I don't think many of them believe in scruples!!!!!!

  6. anonymoustroll

    it's deja vu all over again

    I seem to recall a similar case involving a student reselling a still-shrink wrapped copy of Windows XP. It was a tit-for-tat filing of motions and counter suits, that eventually resulted in Microsoft backing down and giving the poor student a "hush-up" compensation package, which fortunately did not result in a non-disclosure agreement (thus made it into the popular press).

    So... one of the things that I remembered from my "law and computers" class in the late 1980s was that Louisiana's special shrinkwrap-license statute facilitated the modern software industry as we know it... in direct violation consumer tort law.

    What is remarkable is that the shrinkwrap "licenses" have stood unchallenged as long as they have. I believe the Microsoft backed off the college student because they suddenly realized that someone who was willing to fight back, could set a precedence that would unravel the "legality" of shrinkwrap software licenses by pitting shrinkwrap case law (which there is not much of) against consumer tort law (which there is a lot of).

    This is the angle to the story that most of the popular press is completely missing.

    Oh, and BTW, the college student to caused Microsoft to back off was only to do so because he had access to a lexis-nexis account... American justice at it's finest: serving only the rich.

  7. Anonymous Coward
    Anonymous Coward

    The catch-22 situation is ridiculous

    It's about time somebody took them on properly with this.

    It's like posting a letter to someone which says "By opening the envelope that this letter came in, you have agreed to give me your house" and then expecting the courts to uphold your right to the house!

    I'm all for licensing software, but I see no reason that you shouldn't be able to transfer the license to someone else if you no longer want to use it.

  8. Andy

    It really is time someone sorted out licensing

    This might be a good stalking horse for addressing a bunch of licensing oddities. "you accept this contract by looking in it's general direction", "you can't install this software on your new PC even if you destroyed the old one", "you can't sell this when you are done with it" and "if it doesn't work, tough" being the biggies.

    On a side issue, how do companies which change their name cope with non-transferable licenses. For example, PriceWaterhouse and Coopers & Lybrand merged. Both companies ceased to exist and a new company (PwC) took over all their assets (including software). Does this mean that all the non-transferable software licenses have been broken.

  9. Paul

    Microsoft/eBay pulled my MS Office auction

    I won a copy of MS Office 2007 at the UK launch and tried to sell the shrink wrapped software on eBay. It got taken down.

    At the moment I'm planning to let a judge decide :-

    1. Whether in fact the software(^1) is "not licensed for retail distribution" (given notes 'a' and 'b' below, this would seem unlikely)

    2. If it is found to be so licensed then whether such restriction is unfair according to Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999 No 2083)

    3. In the unlikely event that any "Not For Resale" clause is found to be lawfully binding and fair, that it be held not to apply in this case on the basis that I do not intend to "resell" the item. I will be selling it for the first time, it not having been purchased in the first instance. Simply put, a prize can not logically be "resold" by the winner as it was not sold to him.

    I've asked Microsoft for a detailed point by point explanation as to the basis for their claim to include a full copy of any contract(s) that they believe to apply and include specific reference to any clause(s) that I would allegedly be in breach of.


    a. The competition rules made no mention of any such restriction of sale or resale

    b. The included EULA is a cut and paste of the standard full retail version

    The Sale of Goods Act comment above by Steve (thanks) is also worth thinking about).

    Leg to stand on?

  10. Anonymous Coward
    Anonymous Coward

    EULA can't possibly stand up in court, the problem is no one's challenged them yet

    Maybe this court case will finally invalidate all EULA as the court will have no option but to find EULA unenforceable and actually illegal (for example, in the US a minor cannot enter into a contract on their own, so what happens when a 12 year old buys software?)

  11. Anonymous Coward
    Anonymous Coward

    RE: Steve

    I have years of experience with Autodesk and their products from being an engineer. They are extremely agressive in their business activities and their attempts to control the market. Their Rootkit-like DRM often renders legitimate software unusable.

    Several assumptions have been made that I shall try to clear up.

    1) ADSK. only sells its premium products through a dealer network. Therefore you enter the full contract just by buying the box so yes you are bound by the non-tranferrable licence.

    2) If the product was an LT (LITE) version as RETAILLED in a shop and remained UNOPENED then no contract exists and you may sell the box and the licence.

    3) If you do come into possession of an old premium product OTHER THAN BY SALE, you may transfer the box and CD's but there is no right to use it on a computer in existance anymore.

    4) Under UK law a copyright holder has no rights with regards to usage of their intellectual property. You can use /sell / modify / destroy, a book, map or image as you see fit.

    Now the sting in the tail of computer software comes because it is perceived that by installing software you make a copy on the hard disk. When you run software you make another copy in RAM. It may also be argued that you make a third copy on the screen !

    The act of MAKING A COPY renders you subject to the wishes of the rights holder and his licence.

    There are many examples of the courts adopting this perception.

    5) There is no law in the UK against abusive contract terms. Ironically the Unfair Contracts Act is not relevant.

  12. Anonymous Coward
    Anonymous Coward

    Autodesk might want to settle this one

    Autodesk has used DMCA 4 times before to pull auctions and did not complete the next step according to the law. The 5 time they did this, the vendor lost sales. Unless they took him to court over the 5 they are clearly guilty of using the DMCA to strong arm the guy and since ebay is involved as well, RICO could come into play with its every so interesting fines.

  13. Anonymous Coward
    Anonymous Coward

    Can't be right

    " the US a minor cannot enter into a contract on their own, so what happens when a 12 year old buys software?"

    Whenever you buy *anything* you're entering into a contract, so does that mean that in the US, 12-year-olds can't legally buy anything at all?

  14. Gannon (J.) Dick

    AUTODESK should ...

    ... take the "Return". At $20k that's not too much fun, but it would protect their fair to partly cloudy legal position.

  15. Stephen Tordoff

    Office 2007


    Ebay were right to pull your auction. You entered the competition knowing that it was not for resale, if not you did not read the entry info properly.

  16. Anonymous Coward
    Anonymous Coward

    Works both ways,,,

    I once found a click agreement license which allowed me to edit the text in the box. I changed it to read "<company> will pay me 50,000 GBP upon completion of installation of the software". I emailed a screenshot to <company>. Bizarrely they haven't written back to ask me how I should like them to fulfill their legal obligations. I can only imagine that they're not worth the paper / pixels they're written on.

  17. John Stag

    "most companies _won't_ let you return the software."

    This is why I don't buy anything without a 30 day free trial.

    ...and if there's no trial, I'll go to P2P and get a pirate copy to try. Of course, once the pirate copy is in the machine and running then they risk me not paying for it. It's their own fault for not providing a free trial.

    The better a company treats me, the more likely they are to get some of my money.

  18. Hud Dunlap

    Remember the train software?

    Awhile back there was an article on the Reg about copyright infrigment on open source software relating to model trains. The court ruled it was a breach of contract case not copyright.

    I don't see any copyright infringment at all. And since he didn't open the package he never agreed to the terms.

  19. Mectron

    Autodesk join the rank of criminal corporate America

    Not only Autodesk charge way to much for they wares, now they said your only RENTING it and cannot sell it LEGALY when you no longer need it?

    Seem to me that the great american dream is based only on extortion. Of Course autodesk is WRONG on this one. but will they get punish? no way! They will continue to misslead consumer, use a ILLEGAL law (the DMCA) to steal money from they onwn consumers. Way to go! Don't forget to thank those who paved the way to this new business model: the MPAA, RIAA, SONY, Macrovision and other parasitic companies who have no legitimate reason to oparate a business.

  20. Paul

    @Stephen Tordoff

    I dont think you read my previous comment. There was nothing in the competition T&Cs about resale + resale seems to be specifically allowed by the EULA.

    I suggest anyone who won a copy feel free to assert their contractual and statutory rights. ;-P

  21. Anonymous Coward
    Anonymous Coward


    At 12 years you can't own anything in the US or the UK as far as I'm aware.

  22. Gilbert Wham


    "As for not getting a lawyer, could it be because he couldn't find one in his area who's unscrupulous enough to take the case?"

    Then we should find out where he lives and all move there, as truly it is paradise itself...

  23. Ian Michael Gumby

    @Chris why sue Autocad

    IANAL, but the reason he sued Autocad was under tort law for interfering with his business.

    Here is a person who makes his living by buying and selling things on eBay. Note that he's not the first person to do this.

    So his claim is that Autocad's complaints caused him harm because he lost access to his eBay account.

    His case has merit, meaning that the complaint is strong enough to go to trial. It doesn't mean he is going to win.

    I'm also not sure that Autocad did the smartest thing by using the DCMA to stop the auction.

    Without seeing the actual shrink wrap contract, its hard to say.

  24. Léon

    Re: Typical American

    I agree with your point about installing software on multiple systems. I think the following scenario: if i install the software on a machine and then this machine breaks down/gets stolen/disappears/sold/whatever, i wouldn't be allowed to install it again on another system? If i follow the contract literally, this would be correct, no?

  25. Richard Milner

    No-one ever reads the EULA. </exaggeration>

    If they did they would have no intention of complying with it unless forced to because it is so unbalanced.

  26. Anonymous Coward
    Anonymous Coward

    Who is selling a license?

    There isn't a problem selling the disks box & manual surely?!

    as for a valid license, well isn't that an issue between autodesk and anyone who installs the software?

    as far as I can see this guy has not installed anything.

    And yes ebay may have cut his purse strings but it was because of unjust complaints by autodesk, hence the suit.

  27. Nigel R Silver badge

    In that case, is THIS legal or not?

    After reading the item above about not being allowed to resell Office, I have to ask, has this activity been made illegal yet - the organized reselling of old MS Operating System and Office software:

  28. Anonymous Coward
    Anonymous Coward


    SCREW Autodesk! ... I had to deal with tese morons 15 years ago and considered burning down the Marin county HQ

  29. Matt Pedley

    but where does the figure come from

    I know it's 'in america' where the most ridiculous ideas are considered, but how is this guy getting to $10m based on loss of earnings from his ebay comic shop!

    Surely at most there is the value of the AutoCAD products, 4-5 copies plus ebay fees. Plus 1 months income, although not being able to sell comics will not mean a loss in value of the property he is still in possesion of surely? and a small percentage for those customers who maybe found alternative shops whilst his was offline.

    Would be interesting to see someone 'genuinely' take on the strong-arm tactics of Autodesk maybe using an incorrect policy to have the item removed or EULA agreements from a point of principle not greed!


  30. Disco-Legend-Zeke

    Return it, get the $20,000 or offer "unopened box"

    if you don't open the box, there is no contract.

    if you do, and discover terms you don't like, return it for the cash.

    oh, and whatever happened to the DOCTRINE OF FIRST SALE, which provides that copyright owners may not legally prevent resale of physical product.

  31. A. Merkin

    I Rate

    Where's the IT ang... oh, right.

  32. Anonymous Coward
    Anonymous Coward


    If he had only sold the single item then the 'catch 22' claim could be enforceable but being as he was aware of this clause and continued to distribute the product his argument is invalid. The other legalities of the case are debateable.


  33. Anonymous Coward
    Anonymous Coward


    According to Common Law (which is the basis of all US law), minors may enter into a contract for the purchase of "necessaries", which include food, clothing, and shelter. Whether computer software falls into that category would be open to discussion.

    IANAL, though.

  34. Anonymous Coward
    Anonymous Coward

    Legal system...

    This is just one more example how the US JUSTICE system has slowly devolved into the US LEGAL system..

  35. Geoff Mackenzie

    Welcome to your agreement.

    By beginning to read this comment* you** have agreed to be bound by its terms. You undertake to pay a sum of at least £10 (Great British Pounds) cash, by hand, daily, to the author or his representative between 8am and 9.30am (at your inconvenience) until such time ... (OK, enough).

    * reading this comment begins when you enter into an HTTP transaction with a machine within, or when your browser, or invisible, silently installed malware, does so on your behalf, irrespective of whether you scroll down far enough to see this text, or even whether this text is delivered (since I cannot be held responsible for failed HTTP transactions).

    ** including anyone seated or standing within 20m with a view of not less than 10% of the viewing surface of the monitor or other display or projection equipment attached to the computer running the software which initiated the HTTP transaction.

  36. Mike

    Not even MS reads the EULA

    I once complained about egregious MSFT EULA wording in a public forum, and was "called out for exageration" by a lawyer from MSFT. I then proceeded to tell him the exact product, revision, and section of the EULA from which I had quoted the text. Got back a "Well, I'll be darned" from him after he verified it himself.

    I conclude that not even MSFT lawyers actualy read their EULAs. But I do.

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