Garage sale genius juices software-hawking eBayers The world's greatest CAD dowser has successfully defended your right to sell second-hand software. Last fall, Timothy "Happy Hour" Vernor sued Autodesk for $10m, after the software maker barred him from selling second-hand copies of its rather expensive AutoCAD app via eBay. At the time, Vernor was flying without a lawyer. But …
If you don't want people to resell your software, and you insist you're selling a licence and not software then don't actually make a boxed product. Isn't it really that simple?
Better sell 'rent' the software for a finite period of time - sorry you can't have it both ways!
Paris...cos it's not like buying handbags...
This post has been deleted by its author
- Colleen Rubart told us. "We believe that software publishers are entitled to license software on an appropriate term."
Well I can see why the vendors don't like it, because selling a used product potentially denies them the sale of a new one. But so what? There should be no special protection in law just because you are selling software.
If a company is genuinely downsizing and selling off unwanted assets, I don't see why they can't realise some capital from unused software, just like they would if they were selling their spare desks or computers.
If you can buy and sell such stuff at a "garage sale" then why shouldn't you be able to buy and sell the same thing on eBay? Autodesk can say what they like about licenses, but the guy is just selling a box with some media in it. Surely it's up to Autodesk to enforce the terms of any license, when and if the new owner decides to try and run the software?
Autodesk are claimimg they rent you software, if so, as my rental car does, they should upgrade every 2 years without charge and provide a next day replacement in the event of a problem, all for free.
This is like telling a homeowner that they dont actually own it, just rent it from the government.
utter profit protecting crap from a less than reputable company, I use Visio nowdays, much cheper and easier to get help for
To put it bluntly, as my CS professor 20+ years ago used to say: Miss, you cannot be a little bit pregnant.
It is either, or:
If it is a sale, it can be resold and customers can in most countries claim tax credits on it as capital expenditure. Similarly, Autodesk can collect revenues in the state/country which is most convenient tax-wise the way it does now.
If it is a licensing contract, it cannot be resold and the cusstomer cannot claim tax credits on it as it is no longer a CapEx. Similarly, lease is subject to different taxation on the Autodesk side. Things like selling it cross-border and registering revenue only in a state/country where it fits you most no longer work. In most countries in the world leasing is subject to local taxation and there is no way to wiggle out of it by registering an office in Ireland (or Texas for that matter).
Frankly, it is about time HMRC and the like payed attention to this. Compared to this VAT carousel fraud is a child's game of conkers.
Essentially, if this judgment stands, it more or less negates any of the "non-transferrence" statements in EULA's of various software. So essentially saying that it it unlawful to prevent the transfer of software between people.
Their argument about the fact that they merely "licence" the software is also off the mark, as in which case he is just selling on the licence. To be honest, the general situation with software being licenced rather than sold I believe to be nothing more than a get out by the software publishing company. I believe they can get away with more than if they sold it, as they basically take no responsibility for the end product.
I own that particular copy of the software I've bought and I can resell MY PARTICULAR copy without it being a copyright violation.
But then every analysis of EULA on package software has said they were junk after sale contracts, so EULA isn't so much dead as a stinking rotting corpse from long ago.
Autodesk screwed the pooch on this one.
The guy is perfectly entitled to sell the software CD's legally and without hindrance.
However these CD's do not come with the right to USE them. The law states that installing software is indeed making a copy. Therefore the rights holder is in total control of this process.
Autodesk should have made him add a warning to his auction. Instead they started doomed legal proceedings which have muddied the waters.
I'm no fan of Autodesk, I've used their ACAD and Inventor products and I have found them to be overly aggressive in their attempts to control the market. Their licensing software can cause misery.
>Essentially, if this judgment stands, it more or less negates any of
>the "non-transferrence" statements in EULA's of various software.
...
More importantly this would seem to negate typical EULAs in general. This would only be fair: if the software companies (and their customers) want to license the wares, fine, but they should do so with an explicit contract, instead trying to impose / extort a contract after the fact (= sale).
Actually, there are a heck of a lot of properties in the UK that are leasehold and hence the house that people have bought is actually rented. Generally on long leases although some older properties were on 99 year leases and are due to expire.
There's often a nominal rent, companies go around buying up the freehold on the leased land and when people forget to pay the 5p a decade ground rent they slap them with a 500 quid "admin charge". So, watch out.
I sold a new and boxed copy of Adobe Photoshop CS3 on ebay, and within a short time had an email from a user called "metropolis" asking details about the label etc. I replied and within 10 minutes my perfectly legal copy had been pulled from ebay. I asked ebay why and they told me that it was illegal to sell pirated or copied software. I replied that it was brand new, fully licenced but they were not interested. I re-listed the item and within 10 mins again got an email from a "prospective buyer" - Metropolis again - and guess what - pulled again.
These people are a nightmare, I was made to look like a crook to prospective buyers after my auction was closed prematurely, with no comeback to ebay.
Skull and crossbones 'cos some people DO sell pirated software - JUST NOT ME !
actually no transfer is needed. generally if i buy your company we don't dissolve your company we just strip all the assets and make them a shell so while it has no employees or turn over the company still exsists and my employees do the work your company calms the money then passes it all to my company as dividend. so we can then use your licenses for no extra costs under a relicense from your company as we provide a service for your company (even though we own you). spent the last week discussing things like this as my companies buying some one else and we are expected to intergrate them into our network and data centre.
the tax cheats dodgey deals are endless.
A few years ago, a company I worked for went titsup and I was asked to help the auctioneer realise capital from the assets. One of the assets was a stockroom full of software. There were several multiple boxes of unopened, unregistered software from big names... They flogged the lot, but strangely, we were informed by Autodesk that we could not sell the £50k plus worth of 3d studio. So they sat in a store room and were collected (unfortunately not in a black van) after the auction. (Similarly, the 20 odd £5kPS2 dev kits also apparently belonged to Sony. We had simply rented them...)
At least in England and Wales, even freehold (i.e. non-leasehold) properties technically remain the property of the Crown — the 'owner' merely has rights to live on the land, dispose of it, raise capital by it, etc. The main practical difference is that the 'owner' only has a right to influence what will happen to the estate after his or her death, not to dictate absolutely. And in the event of land ending up so that it would otherwise have no owner whatsoever, the Crown regain control. They also retain certain mineral rights over all land, irrespective of how it is held.
Whatever happens, however this & future cases go, it won't be in the consumer's favour and it probably won't be to the S/W publisher's benefit either.
It WILL however, ENORMOUSLY benefit those wonderful champions of everyman - I refer of course, to m'learned friends - some of whom, whose magnanimity knows no bounds, now work for a daily fee which is as little as my gross monthly income.
I believe that you can't be made to abide by a contract (which is what a license is) that you have not seen. The law of contracts states that both parties must be in agrement - usually by both signing, but not always - for the contract to be valid. If the EULA agreement was inside the unopened box, then common law should apply. The guy bought a box of software, not a license that he could argue he had no knowledge of, and resold it. He was a reseller, not a user of the software. This is what PC World, et al, do every day of the week.
I think for once, the judge is being sensible and practical. If AutoCad win, then they must have better lawyers, and the law is shown to be an ass.
I'm an application packager/repackager, and worked for some of the biggest corporations on the planet.
As a repackager I'll take an original vendor's setup and take bits out, put bits in (including serial numbers), change bits etc. I'll take something that was designed for XP and stick it on Server2003/Citrix etc.
Every EULA I've looked at explicitly says that such b*ggering around with their shiny app is PROHIBITED.
Even worse, I have multiple copies of very expensive software all over the place. I'll maybe have multiple VMs on the go, and copies of different packages in dev,test and prod environments.
Of course, my employers are legally obliged to make sure they are licensed correctly. Reality is, under the letter of the law - every large enterprise on the planet is breaking copyright law.
In the US, since a copy of the software must be loaded on the computer to use it, the law is very clear that this is legal and permissable.
AutoCad and any other vendor out there always has the option to RE-BUY the software at the full price paid by the previous customer to keep it off the market if they choose.
So what ARE you buying, then? If you buy software, you're not buying it to use??? What was that money FOR then?
Heck, I didn't GIVE you the money, you've just licensed it (try getting the "promist to give the bearer on demand..." bit on that bit of paper honoured..!). I want it back, I've done with lending it to you and you're misusing my money. So I'm cancelling the lease on my money and taking it back.
EULAs have, for a long time, flown against all that's sane and sensible in a legal contract. Typical clauses:
* You may make one backup copy of the software [so presumably customers must abandon a Towers-of-Hanoi backup mechanism, and keep reusing one tape/disk? Ain't going to happen];
* Our liability to you under any circumstances is limited to the price you paid for the product [so even if you destroy our business through bugs in your software, I get £39.95 back?];
* You agree to indemnify us and hold us harmless against any or all claims of any nature arising out of use of the Software [eh? You cause massive financial damage, and _I_ have to pay to defend _you_ against it?];
...and the final glory:
* WE MAKE NO WARRANTIES, CONDITIONS, INDEMNITIES, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY OTHER MATTERS, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, INTEGRATION, ACCURACY, SECURITY, AVAILABILITY, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE [in other words, if it's crap, a rip-off or illegal, tough titty].
Lawyers have been laughing it up at our expense for too long. If the tide is turning in the courts, and contract terms such as these start to be seen as injurious, unreasonable, unfair and unenforcible, then maybe - just maybe - big software firms might start to face up to a responsibility to create products that are fit for purpose and of satisfactory quality.
Why don't they just put in mechanisms that make it hard to resell the software.
Require registration online and lock the software to the hardware in the machine.
Sure, I might not buy such a product, but at least I am not left wondering if I can resell it or not, if I do.
And some clear marking on the product packaging stating not for resale helps as well.
Software is not cheap to produce, and if someone wishes to optimise their return on investment then so be it, the unit price is far below the amount it costs to produce, so people may wish to protect that investment, which is fine in my books if they are willing to make that obvious and put in place mechanisms to secure it.
What gets my goat is when companies like MS force the software on you, even if you are never going to use it then combine it in the sale price of a laptop, that is wrong. But, this scenario is different.
It occurs to me that if you want to dry up the resale market for old versions of your product, you need to make each release significantly better that the old ones. Outlook 97 lists for just $70 on ebay because Outlook 2003, vastly superior, is only $50 more. The problem for many vendors is that upgrades imply aren't compelling enough for the dollar. So Autocad 2009 has a ribbon interface? Nice, but not worth a $2000 upgrade.
You might also argue that having a garage sale market is going to help a lot of student-types cut their teeth on AutoCad and cement AD's hold on the market. AD have a student program so they get this at some level. Having a few hundred copies floating in the ebay ecosystem is a student program that runs itself.
I would presume the reason for the latter route is if they sold the software, that would open up a huge can of worms in respect of rights to reverse engineer the code (why can't I - it's mine - I own it!).
License is (or should be) rights to use. And you should be able to sell on that right without any hindrance.
Just my ha'pennies worth. No Coat - it's warm enough.
"So what ARE you buying, then?"
Ah, an excellent question. If more people thought that way we wouldn't have the abusive practices that we do.
You are buying only a permission. An indefinate lifetime, non-permanent and for you alone, permission. On their terms alone too.
There is a difference between application of the law - jurisprudence and justice. Rarely do they coincide.
Autodesk (Autocad is a product) uses hardware scans to identify a computer. It runs home to mummy and binds this on their system to your licence number. It also writes this to the system area of your hard disk. If you change kit too much the licence is voided and you must buy another at full price.
Academic Adesk products incorporate a virus to watermark the drawings. If you receive data from such a product and it gets used in your drawings archive the virus watermarks all your work.
If you can prove you were an innocent victim then the local reseller can remove the watermark virus for a fee.
"a local architectural firm held another "garage sale.""
So why didn't they go after them? Afraid of losing a customer who might buy the next version? Afraid of taking on someone who might be able to afford nasty, high-priced lawyers. Easier to go after some little guy on ebay?
Weasels.
I OWN the disk and the CDKEY and the dongle and all other illegal DRM attached to MY SOFTWARE THAT I HAVE PAID FOR. And Autodesk or MS or Apple have no legal right of any of preventing from selling my software if i don't keep any copy of it and sell the complete original package. This is another case of broken (c) laws. What Autodesk is saying is: WHen you buy our software, you only paying upward 4000$ for the right to use it, but we (illegally) forbid you to transfere that right. Because at 4000$ a pop we are not stealing anough money from our consumers. Ebay should also be sued (fined) for a couple of billions for been one sided and remove listing without ANY PROOFS of any kind that the software is pirated.
We Need
1. A Law that prevent parasite company from illegally snooping ebay auction in search of pirated software.
2. Only a employee of the concerned software company should be allowed to make a ebay complaint
3. If the software company does not have any hard evidence that the software is pirated, Ebay should be prevented from illegally removing listing
4. If a software company make a complain whitout a proof, it should be banned for life from making any more complian and be subject to a huge fine.
Problem is that licensed is opening another kettle of fish: See MS's being taxed in India because if you aren't selling the product, you can't offset sales to another country: your software is still owned by the company, and that company has a presence and can therefore be taxed IN THAT COUNTRY.
Other problems are the companies "owning" software: no depreciation. So you can't offset taxes against software depreciation. IF you don't own the software, you can't put it down as an asset (you don't own it), so your liquidity is severely shortened. And if all you're buying is the right to use, then when they deny you the right to use, you get your money back (because they broke the contract).
Loads of worms.
English law specifically excludes any 'after sale' addition of restrictions.
Supposed terms added or revealed after the contract is formed (which is the instant both parties agree the sale) are meaningless.
It's primarily aimed at the garbage you often get on the backs of delivery notes & invoices, but equally applies to anything within the goods, such as EULAs, 90 day warranties & shrinkwrap licences.
There is just ONE exclusion - solely for bus & train tickets that have rules on the back...
Basically, you can do whatever you like with *your* property as long as you don't infringe general laws like copyright.
(Unless you sign a licence agreement or whatever BEFORE the purchase, then you are stuck with it).
Thats my copies of Vista (which I dont use because its crap) and Office 2007 onto eBay then.
I did ask whether I could sell my Office 2003 disks as I was intending to buy the full install of 2007 and was told no by some indian chap in a call centre contracted to MS which passes as Microshaft UK.
Bill, because he knows how to rob people blind.
All of you claiming that you can do what you want with the software because you bought it need to read that license that you blindly clicked through. And read the legal notice on the outside of the box before breaking the shrinkwrap.
Autodesk are bastards and extort as much money as they possibly can from their client base. No one likes doing business with them. But they do have a legal right to license their software as they wish. And you're bound to the terms of that license. If you didn't like the terms, "return to point of purchase for a full refund" or however they word it. When you decided not to return it, that's when it became a contract.
I don't want to defend the DMCA vigilantes on eBay as what they are doing is a not-so-subtle form of extortion, but all this wishful thinking about what rights you have under a contract you voluntarily agreed to is just downright silly.
And if you're successful is getting shrinkwrap licenses declared invalid, then you'll see a large increase in the price of software like AutoCAD because other distribution models are much less efficient and therefore more costly. Remember direct software sales from IBM and DEC and the huge contracts you had to sign?
(Paris, because she's permanently confused and because rules don't apply to her.)
First before i go in to my thoughts on this, to clear up some information about how this lawsuit went down, Autodesk didnt go after this guy, it merely filed DMCA notices to Ebay, This guy filed the lawsuit against Autodesk for the purpose of legal clarification, and he won.
Now its going to be very interesting to see how other software vendors and even big box hardware vendors proceed in the future, namely Microsoft, Dell, HP and so on, if software is sold not licensed, all those Volume Licenses microsoft sold are now tangible items, that can be resold, and microsoft may be forced to issue individual product keys for each copy of the software included in the now defunct license volume agreements, so the owners of them can sell individual copies if they choose.
Big box vendors are going to be in for a headache when people who already own a copy of the operating system call and ask for a refund on the OS they force you to purchase when you buy a new computer. this could get really comical in the future.
this could put software vendors who rely on reoccurring sales to the same people in big trouble, i can see MS stock dropping like mad after wall street digests this rulng...
Bill Steve and Brad (bobafett) Smith are probably sitting around screaming right now...
Common titles as Photoshop, Cubase and AutoCAD are now so bloated and hungry (and expensive) that I actively hunt down second-hand versions for a more streamlined and snappier workstation. And I do love a bargain.
It's a shame eBay has become such a quagmire. I qualify for academic titles and I fancied the latest version of a Flash bundle - £350 it was up for - at least half the price I could find it for elsewhere. I thought I'd check with Adobe vis-à-vis upgrades and they informed me that they do not endorse or indeed support any titles at all purchased via eBay. So all those folks claiming to be 'authorised resellers' seem to be mistaken.
This all hums of product take-up bullying to me. I'm still really angry about the analog turn-off and the fact that owners are being forced, yes, forced kids, into slinging their old radios to adopt a far less flexible and robust technology. It really does leave you thinking "How the Fuck can they get away with this?". The consumer shackles are uncomfortably tight.
Burn the Reichstag! Run into the Winter Palace! Blam Blam!
Start license:
1. This is my license, hereafter referred to in vague and specific terms both as the license or sometimes, it.
2. It, here, referring to the license (and not any other "it") establishes a contract between "you" (collective or singular) and "me" defined as myself individually or by someone "I" (referring solely to the Author of it (referring to the license, and not any other "it")) appoint to act as "my" (as pertains to the author if it, the license and not any other "it").
3. Such contract falls under no specific jurisdiction other than that assigned to it by a panel of "experts." (Experts must be listed an preapproved to be used in jurisdictional assignments by other experts only).
4. Upon completion of this sentence. You (collectively or singularly (in isolation and in union with specified or unspecified others (as may be the case)) agree to furnish me with cheap wine and three hundred and sixty five billion dollars.
- Mine's the one with the copy of Black's Law dictionary and a copy of my license.
They way I see it, the guy is a reseller, not a user.
If they really want to get picky, then they should be hunting down their thousands of reseller minions around the world. Autodesk's resellers purchase it and resell it onto their clients, all the while taking a nice little profit. Autodesk, you can't have it both ways.
As a user of their overpriced software, I hope they get nailed on this one. Go Vernor!!
Re: Overpriced [...]
"Bah to overpriced software. I'm very surprised that they aren't quaking in their pants since open source CAD software that doesn't cost is cent is now widely available."
Have you actually tried using any of them?
Re: Lock the software
"Why don't they just put in mechanisms that make it hard to resell the software.
Require registration online and lock the software to the hardware in the machine."
Autodesk does exactly that. Unless the software being sold is unregistered, I don't know how this guy's customers are going to be able to actually use it.
On the Continent, there have been several cases that have negated a non-transfer clause in a license contract, reasoning that a license by itself is a trade good, hence can be wholly owned and therefore also resold by the buyer. The case in point that I remember best was about reselling original copies of MS products.
@AC: "And oh, I can do what their software does with just the line tool in Paint" -- so Paint can be used to control CNC gear and generate 3D models of your drawings? Wow, didn't know that! </sarcasm>
It is really quite simply.
When you buy a music CD, you are buying a physical CD ( yours to do with as you wish) and a licence to listen to the music IN THAT FORMAT. That's why it's a copyright infringement to rip the music to mp3.
Same with software. The physical disk is yours, the software on it is subject to the EULA which may say no transferring etc etc
I'm not saying this is acceptable, just that this is the way it is at the moment.
If the ELUA says no transferring, selling secondhand etc etc than that's what it says.
Equally, if you rip a CD to mp3 then you are copyright infringing (unless there are specific laws in your country striking down this and allowing format-shifting)
Sucks, but there it is.
Now, if the Autocad had already previously been installed on a machine and the guy was selling it on ebay (even if the machine was no longer using it) then the EULA would prohibit the licence transfer and I would imagine the company's servers would enforce that rule, so the new owner would not be able to activate that copy of Autocad once he had installed it.
If it was a brand new unopened copy of Autocad, then he had a perfect right to sell it.
"When you buy a music CD, you are buying a physical CD ( yours to do with as you wish) and a licence to listen to the music IN THAT FORMAT. That's why it's a copyright infringement to rip the music to mp3."
Wrong. It's a copyright infringement because you make a copy - NOT because you break a contract.
"Same with software. The physical disk is yours, the software on it is subject to the EULA which may say no transferring etc etc"
EULAs and click-thru licenses are legally shaky. The terms of the license must be clear at the time of sale, and any subsequent agreements/amendments are strictly at the discretion of both parties. You have the right to disagree to the EULA (and not agree not to reverse-engineer the agreement box ;-)
Of course, I am not a lawyer. So do your own research.
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