back to article Autodesk goes after eBay seller - again

The case of Timothy Vernor, the man Autodesk tried to stop selling their software on eBay, has had another day in court. Vernor is a full-time eBay seller, usually of comic books. But in 2005 he found a copy of AutoCAD design software at a garage sale - software which usually sells for about $4,000. Shortly after he put the …

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  1. Juillen 1

    The law is likely..

    To turn around and tell it that it can stipulate whatever it wants on a license agreement, but if the contract is illegal due to what it claims, then it's null and void.

    Any accountants out there like to comment on the depreciation cycle of something you buy and instantly has a value of zero to the company (no possible value as an asset, apart from not having to buy it again)?

  2. Anonymous Coward
    Go

    About time too.

    eBay/Paypal and even their partner network seem to have a habit of removing accounts that are you livelihood for unknown reasons at no notice with no evidence and then not replying to emails for many days.

    You just get an email in your inbox saying they've blocked it and they've confiscated any funds they have from you and then that's it - gone.

    After much persistence and attempting to get hints from their forums which usually gets responses such as "well you must have done wrong, piss off" you might get it back in a month in which time someone has stolen your market and you have lost reputation.

  3. Tom Kelsall
    Thumb Down

    It's an unworkable model...

    It's been working for a while now, but I just don't see how "You are licensed to use it but you don't own it" is a sustainable model. When I upgrade my PC to a shiny new one with shiny new software, I don't WANT to put my old software back on it, but SOMEONE could benefit from it... a sale is a sensible and logical way to pass the "right to use" onto someone else without them having to fork out for another copy, probably of a version which won't run on their old system.

    Second Hand Markets exist for EVERYTHING else... why not software?

  4. The Indomitable Gall

    License conditions?

    " Autodesk is likely to argue that it can license its own products on any basis it chooses. "

    Yes, but the license is inside the box. Were these unopened copies...?

  5. Anonymous Coward
    Anonymous Coward

    If the package was never installed

    If the package has never been installed before, he could argue that the license is intact and he is entitled to sell it exactly like any other distributor is, however, if the package has been opened and installed, the licensee is the original owner and as the EULA goes he was never allowed to resell the package. The original owner should've sent it back to Autodesk and ask his money back if he was no longer interested in the software.

  6. Michael C
    Headmaster

    This is a simple argument

    A "licence" is something bound by terms of use, and a term of time, or continual cost. A "sale" is something paid for only one time, with no further obligations. The only "sale" restriction commonly accepted is the "not for commercial use" sale, where pricing for commercial versions of a product (which are often not any different at all from retail versions) come at substantially higher prices.

    If the license does not include a limited time use clause, a recurring license fee, the limited use of centrailized systems, or other limiting factor contoilling how the purschaser has access to the item, then it is not "licensed" but is sold.

    Since you are not required to upgrade to a newer version to continue using the software, and since there are no recurring fees, the ONLY thing AutoDesk has a case with is the "licenced" use of their product authorization servers (aka a form of DRM) and perhaps they might charge some fee to reassociate one person's "license" to a new user (which I'm sure if they said $4,000 that you sir, the courts would call the fee unreasonable and shoot it down, since those fees were not disclosed in the original purchase agreement.

  7. Aristotles slow and dimwitted horse Silver badge
    Stop

    Another chicken and egg...

    Where you can only read the EULA by opening the shrink wrap, but by opening the shrink wrap to read the EULA - you are deemed to have accepted the license terms.

    Hope he wins this case.

  8. Anonymous Coward
    Flame

    Profiteers

    You would have thought the license agreement exists between AutoDesk and the person who has installed it? I know that if you want all the support you should buy through an authorised agent who can give you all the support you require. But what if you don't? You are adept, then why pay for something you don't need or want? To keep the prices high? To maintain an artificial business model? To pay for a new yacht for the CEO? or is it pay all the engineers who toil away endlessly to improve and enhance a product? Why should I pay for something that might be coming? That I might not want?

    When all is said and done if I buy a physical item. I own it! I don't care what slime ball of a lawyer parasite says. I've exchange hard cash for something. It is mine. If I choose to sell it on, that's my prerogative. In selling it on I give up any claim on it. Besides have you seen the prices of AutoDesk products? Not cheap I can tell you. AutoCAD LT retails at £835, for a basic 2D drafting program? I'm in camouflage so they didn't see me coming. I bought Punch VIACAD 2D/3D for £49. Does all I require. So that is £49 vs £835. They depend upon large business sales, so people don't question silly prices, as the guy who signs the order is not paying out of his pocket. Run your own business then it hurts. A pox on these people, may their lives be of interest to other people and may they live in interesting times! May they wander over the face of the earth forever, never sleep twice in the same bed, never drink water twice from the same well and never cross the same river twice in a year. I curse AutoDesk and all others that seek to profiteer.

  9. LuMan
    Thumb Down

    Ludicrous

    Have Autodesk nothing better to do with their time? Putting so much time, effort and money into stopping 1 person from selling one of their products is ludicrous. Not to mention potentially damaging to their sales.

    Vernor has done Autodesk a favour by making their product known and available to another purchaser - perhaps one who will continue to buy, register and update their software on a regular basis, thus ensuring Autodesk repeat custom.

    Conversely, Autodesk have labelled their software "non-sell-on-able" so some prospective buyers may move to an alternative product that has re-saleability at some point in the future.

    Christ, can you imagine what the 2nd hand videogame market would be like if the likes of M$, SCEE and their ilk prevented us flogging our old Xbox, PS3, Wii, etc. titles on eBay!

  10. g e
    WTF?

    "claims Vernor is licensed to use its software but not to sell it on"

    So of course they asked for the details of who this poor guy bought it FROM, right? Or perhaps garage sales are authorised AD distributors these days.

    Hope any judge prints that out on a cactus and rams it up AD's arse. Twice.

  11. Annihilator Silver badge
    Troll

    Garage sale

    Hmmm... this chap is rather fortunate really isn't he? Anyone else found $4K software licences onsale at their local bring and buy?

  12. Neil 4
    Alert

    Selling a license?

    Is he actually claiming to sell a license? Or just the CD? If he's just selling the media, surely that's fine. It'd then be up to the buyer to get a license for it.

  13. Anonymous Coward
    FAIL

    USA law that different to UK law iro simple contract law?

    Simple contract law. Vernor has not paid Autodesk anything at all. Therefore he has not contracted with them - no relationship exists.

    Offer > acceptance > recompense. The chain has a link missing.

    Under English law he has no case to answer.

    Been 26 years since I studied this though.

  14. Anonymous Coward
    Grenade

    Have they actually thought this through?

    If the licence can't be transferred from the original licencee, then it's unlicenced in his hands anyway, right?

    But how's that work with resellers? If I buy a copy off a distributor on behalf of my customer - the end-user - does that mean I can't sell it on, either? Could the distie sell it to me legitimately?

    If the licence is going to be so damn grey by the time it's got to a wannabe-legit user, why _shouldn't_ they just shrug and pirate it...?

  15. a walker

    Open Source alternatives?

    Why pay Autodesk, have a search on SourceForge for CAD applications.

    As a suggestion .... http://sourceforge.net/projects/free-cad/

  16. The Mysterious Panda
    Paris Hilton

    Licence? We don' need no steeenkeen licence

    Sure the licence issue is between the company and the original user? And I am sure that part of the licence agreement was that the licence was non-transferable.

    The gentleman in the story may be able to physically possess the CD, but he does not have a valid licence of his own to use, let alone one that he has any right to pass on. Whether or not the licence was opened/read/accepted by him is, to my understanding, nothing to do with it as the original user had no right to pass it on to him in the first place.

    Not saying I agree with that state of affairs, mind...

    Paris, because she understands the the importance of correct transferral.

  17. Frank Zuiderduin

    License condtions can be voided by law

    "Autodesk is likely to argue that it can license its own products on any basis it chooses."

    That's debatable. Any condition in that license that's against the law -like not allowing people to make backup copies- would certainly be null and void in this country.

  18. Anonymous Coward
    FAIL

    Hmm....

    I can't see the license and thus can't agree to it unless I break the seal.

    By breaking the seal, I accept the unseen license.

    (Or some variation on the above)

    Is it just me, or does anyone see this as completely bass-ackwards?

    And why can't one sell on the media and the license-to-use? One isn't selling on the support (where the real money is), the buyer is going to have to sort that out themselves. Or negotiate some transfer of contract (for a fee).

  19. This post has been deleted by a moderator

  20. JetSetJim Silver badge
    WTF?

    So...

    ...he buys it at a garage sale, and is therefore licensed - therefore validating the "first sale doctrine" principle, then he sticks it up for sale on our favourite tat-merchant site and that doctrine no longer applies? Can't see Autodesk winning that argument...

  21. Anonymous Coward
    Thumb Up

    Pish

    The license and any support is between the original purchaser and Autocad. At best anyone buying the software will be able to use that version only, will have no support and no upgrade path.

  22. Dave 129

    This should be fun

    To the best of my knowledge (IANAL, and not American); US consumer law has a first sale doctrine in that the original purchaser is free to re-sell, loan, etc. the item that they purchased. In the case of software, provided that the package includes the original media, books (if any) and other components, the original purchaser is free to flog it on to anyone they choose and no company, or "EULA" can stop them - it's a right enshrined in the good ol' Constitution (or something like that).

    So basically any EULA is actually preventing a US citizen from enjoying their rights. I wonder if Autodesk have thought this through properly... because they could end up in a position where their EULA is examined in detail, found to be so ass-backwards, convoluted and so against the consumer that it is found to be null and void. That could possibly then set a president in law that software EULAs are in fact illegal where they attempt to control the sale of goods and the entire software industry suddenly has a rather large problem on their hands. Oww, I like that idea! ;)

    It's like the games companies trying to stamp out the second hand market. They are the only people that are demanding another bite of the pie. Well you know what guys? Tough! No other industry has something like that. You want an example? My mother is an author, has had several books published. She only makes money on first sales and loans/sales from/into libraries (but library fees is tiny, like fractions of pennies). She gets nothing from second hand book sales and some of her first published titles are going for 70-100 USD! (originally price something like 8 USD). Is that fair? No, but that is how things are. Same deal with used cars, or TVs or DVD players or... Software industry makes me angry sometimes, but I digress.

  23. steogede
    FAIL

    not for resale

    I don't understand, if the licence can't be transferred, how can he be in violation of a licence which was never transferred to him? If the original owner has a contract with Autodesk, what effect does that have on Verner? He may not have a licence to use the software or sell the software, but does that mean he isn't allowed to sell the physical installation media? What if someone has a licence to use AutoCAD but is lacking the installation media for whatever reason? Did Verner even receive a copy of the licence in a printed format or just the disc? Autodesk may retain ownership of the copyright, surely they don't retain ownership of the physical disc.

  24. Jimbo 7

    come on

    why in the world they suspended his whole account and not just removed this one item?

    I'm pissed at eBay that they do things like this

  25. TJ 1
    Alert

    Get the facts right!

    Never let the facts get in the way of a good rant!

    In a hearing in May 2008 the Judge DENIED a motion to dismiss and motion for summary judgement moved by AutoCAD.

    The Judge also DECIDED as a matter of law that Vernor does OWN the copies of AutoCAD and the U.S.A.'s first-sale doctrine applies. He relied on a 9th circuit precedent but took time to also point of more recent cases that might have pushed his decision the other way if they had more standing.

    The case is NOT about a garage-sale copy, although Vernor did obtain a previous copy that way. In this case Vernor bought FOUR copies from a company called CTA who were the first-sale purchaser, who no longer required the copies.

    AutoCAD is now trying to claim that Vernor and any subsequent buyer of the copies is bound by the license agreement that CTA entered into. The judge pointed out in the May 2008 ORDER that the AutoCAD license agreement with CTA has a NON-TRANSFERABLE clause and therefore it is unlikely Vernor or subsequent purchases of the copies are bound by the CTA license.

  26. Puck
    Thumb Up

    UK/US law/Delaware

    This is a fascinating story, as are others on US law, but, on US law it remains, and, as far as I know, they don't have nearly the strength of consumer protection as we do here in the UK-these points about the end purchaser not having contracted with Autodesk seem interesting-but as for " void clauses", I gather that's more a concept introduced with British statutes like the sale of goods act and especially the unfair terms in consumer contracts regulations. I gather American law, entails far more "privity", ie "freedom" of contract between parties-and possibly also relating to intellectual property. The "Delaware " principle basically is that American companies will tend to have their head offices in Delaware, the state where there is least consumer protection, and most freedom to write unfair contracts.

    Basically, this is a fascinating story, and although it's interesting to hear fellow British readers giving their legal opinions on it, my understanding is that it needs someone who knows all about American law to give proper qualified comment on the matter.

  27. Anonymous Coward
    Flame

    @g e

    Hope any judge prints that out on a cactus and rams it up AD's arse. Twice.

    And then slaps them in the nads with the a fresh cactus.

  28. Anonymous Coward
    Anonymous Coward

    Rubbish

    "Autodesk, in common with most software makers, claims Vernor is licensed to use its software but not to sell it on."

    That's an oxymoron. He isn't the original purchaser either; they're contradicting their own claim.

    Anyway. Autodesk's software EULA is only accepted when you install the software and click Accept. I have 3DS Max, Maya and Motionbuilder, all direct from Autodesk resellers, and none of them have an EULA in the shrink-wrap.

    And, as it happens, you can get a non-shrink-wrapped disk from your reseller if you tell them you're in a hurry. Because the only part of the installation that constitutes ownership of the software is installation and activation (via internet, dongle or manual callup), which is a clumsy annoyance at best.

    And they wonder why so many people pirate their software.

  29. deegee
    FAIL

    Failers failed

    Some people need more of that there book learnin'... ;-)

    Note that I am not referring to GPL, MIT, freeware, shareware, or any other variations on software licenses. This comment is referring to the common general retail software license, which is on topic since this is an Autodesk software discussion.

    Software is not the same as hardware. It is sold and licensed differently. You own the media if there is any included but you never ever ever own the software. You only have a right to use the software under the terms and limitations of the EULA (End-User License Agreement). You have no other rights with the software -- at all. What you are purchasing when you pay your money for the software is a license to use it in accordance with the EULA.

    So if you find a disc in the dumpster, or buy a copy off eBay or from a friend, or torrent yourself a copy, you DO NOT have a right to use the software because you do not have a valid license. The eBay exception would be a purchase from a valid online Ebay software reseller, and none are authorized Autodesk resellers.

    Most software companies have licenses that do not allow you to sell or transfer that license to another person. Only a few companies will let you contact them to transfer the license to another party. Before the person who bought the used software can use it, they must contact the company and get the license transferred.

    Most software companies also license upgrades with the limit that you own and retain the prior version(s) that you purchased the upgrade to. In other words, if you purchased WidgetSoft 1.0 Full, then WidgetSoft 2.0 Upgrade, you must retain version 1.0 in order to use version 2.0, since 2.0's license is only an upgrade extension to 1.0. This is why many upgrade software installs check for the existence of the previous version. You CANNOT purchase the 2.0 Upgrade and then sell off the 1.0 Full.

    Regarding the "I have to open it to see the EULA" is almost always false. Most companies have a copy of their EULAs available on their web site. Also, almost all retail software is sold with a similar EULA so what applies to one software almost always applies to another since most use similar EULAs, and it is usually mentioned on the package that it contains a EULA allowing you to check online or with the company regarding the limitations of the EULA prior to purchase. So you can't use the bogus claim that you couldn't see the EULA without opening the package.

    Regarding those who said that you can easily resell games and other software so Adesk is being dicks. Wanna bet?!? Try using an opened WinPC game where the person has already registered the CD Key for online play. Good luck on playing the game. Most will prevent you from online connections since the key is already registered. Go to some of the forums for online games and see how many people have been scammed by buying used copies of game software this way.

  30. Dazed and Confused

    Second hand book shops

    It's not uncommon to find a statement in books that the claim that you don't have the right to sell the book on. Well they can print what they like in books, it doesn't mean it's true. The world is full of 2nd hand bookshops after all.

    In the case of books I understood that under UK law, the publish has the right of first sale, but once they've sold it, the person they sold it too is perfectly at liberty to sell it on.

  31. Anonymous Coward
    Anonymous Coward

    I can see where Autodesk are comming from

    I hope Autodesk loses as I hate the way Software Licenses are used to punish users, on the other hand I can see Autodesk's point.

    I am assuming that the software has been used and is not still shrink wrapped and unused.

    They sold a License (+ CD KEY) and physical media containing the software.

    From what I understand, the License is a one shot deal, once you install the software and use the key to activate the software the license and key are now used up! It is bound to you forever.

    Without the License and CD Key you have nothing!

    What if there was NO CD, what if you had to download the software, does that give you the right to burn the software to a CD and sell it when you dont need it anymore?

    An origional CD without a Valid & unused License and Key is basically a pirate version.

    You cant give somone else your driving license in order to drive a car.

  32. Adrian Esdaile
    Grenade

    Autodesk licensing

    I think you'll find in the small print that Autodesk own all of your work, your desk, your car, your dog, your first born children, your kidneys and your left nut.

    In all the screaming about MS v Apple v Unix v common sense, no-one has noticed how one single company now pretty much ownz architecture & engineering. How has this happened? Agressive buying of smaller vendors, killing off products, forcing people onto the upgrade treadmill. How the owners of Autodesk must LAUGH as we pay, pay, pay and pay again, again, and again for software we don't "OWN" but a merely paying $7,000 per seat per title per year to ALPHA TEST. Yes, Autodesk's products make MS look like perfect writ in software. Major bug stopping you from producing work that is your livelyhood? - here, buy next year's release. No, they WON'T fix the old one.

    Once I'm dictator Autodesk will be first against the wall. Watch out!

  33. Anonymous Coward
    Anonymous Coward

    AutoCAD License Transfer

    I legally sold a licensed version of AutoCAD R13 I purchased for about $3600 in 1990s. I had to advise Autodesk and both the transferred licensee and I had to sign and submit a copy of the transfer agreement to Autodesk. But I was permitted to sell the license. I used it for about 3 years and still got a half decent return and the new 'owner' got a good deal on a new seat (his firm had 2 or 3 already).

    For corporate/Gov design work there really are no broadly attractive alternatives despite the hollow insults from the great unwashed. It just has the engineering design addon market completely to itself since the DOS days.

    I have used a number of cheaper CADs (including LT) as well as Microstation (a competing high end program that was used extensively for mapping in this jurisdiction before Arcinfo (ArcGIS) was ported to NT). Using Microstation was a breeze after fighting AutoCAD for years, despite it's complexity. But the knockoffs never had what it took to integrate fully with the addons that are so prevalent in the industry. Even IntelliCAD which came close for awhile couldn't keep up to Autodesk's constant rewiring of the 'API's.

    As a small biz licensee neither could I. A $1000 yearly 'protection fee' was too rich for my one person firm so I shut it down and sold the license rather than keep up the extortion.

  34. Charles 9 Silver badge
    Thumb Down

    @deegee

    So code is different from books, music, and movies? Last I checked, neither books nor music nor movies are licensed, and even books that say on the text they cannot be REsold are pre-empted by federal law (the 1976 Copyright Act and the First Sale Doctrine contained therein). Why should software (which is essentially code that can itself be printed like a how-to book) be any different? Are not distributions of software protected by the First Sale Doctrine, which specifically dictates that producers have no real control over THE product (note I say THE--you're not allowed usually to replicate THE product and turn it into A product) once it leaves their hands?

    And driver's licenses are a bad analogy since they're governmental permission to perform a potentially dangerous act. Going by that argument, we'd need licenses to use a computer.

  35. Alex 32
    Black Helicopters

    Lucky Bugger

    That's some garage sale he's found there, where you can buy $4k licences over a few visits for peanuts..

    Hmmm... Sounds like an inside job to me..!

  36. Anonymous Coward
    Anonymous Coward

    Autodesk Actions

    After the miners strike in UK the coal board set up a network of training centres to retrain miners. I supplied Full AutoCAD software at Educational price ie approx 90% discount.

    After 2 or 3 years the centres were closed and the software was sold, at commercial prices !

    I notified AutoDESK, in writing, but they took no action

    Also when a new version of AutoCAD came out in 2001 they had New York Skyline on the box with the Twin Towers featured. This was several months AFTER 9/11

    I fortunately saw the illustration pre public launch and contacted their Sales Director in UK and they withdrew the packaging.

    So they really are sensitive caring folks at AutoDESK.

    After 15 years dealing with them I can confirm their staff think AutoDESK rules are the law of the land!!!

    One day someone will teach them a lesson. Perhaps this e bayer?

  37. deegee
    Pint

    c'mon people reel it in...

    @Adrian Esdaile 05:08 "Autodesk licensing"

    "I think you'll find in the small print that Autodesk own all of your work ..."

    Complete B.S. Otherwise Autodesk would own the rights to millions of pieces of architectural and movie fx materials. Which they do not. You had better re-read the EULA or provide proof for your statement.

    " ... pay and pay again, again, and again for software we don't "OWN" but a merely paying $7,000 per seat per title ..."

    More B.S. No one is saying that you have to purchase the updated versions of any software, whether it be the next AutoCad or Max or the next MS Office. And $7000 per seat per title? What the hell are you buying? An app with every possible addon? Max is only around $3000 US for a new commercial license, usually ~1/3rd that for any upgrade. I pay only ~$500 per year for Subscription and I get EVERY version and update plus all of the Subscription benefits which are numerous videos, training material, addons, special applications, etc. Most people posting complaints on here probably pay more than that every year for their iPhone or for beer.

    The only thing you did get right is that you don't own the software, which you don't, which is correct. What this means is that you have no rights to the code or source code, you can't sell it as your own, claim any rights or copyrights to it, reverse engineer or duplicate it, etc. Same as you don't have the rights to Rowling's Harry Potter books if you buy a copy -- you don't have the right to make copies, sell, re-write, claim the story as your own creation, etc. Same as movies, I can't claim that I "own" The Matrix because I bought the DVD, so now I have the full rights to it, that's garbage.

    I think too many people don't understand the difference between owning the IP and owning the physical object you bought it on. You may own the Harry Potter book but you don't own the writing itself, if I want to eat the pages or burn it, I can as I own the physical paper. You may own a disc but you don't own the rights to the software or movie on it, if I want to use it as a coffee mug coaster or frisbee, I can. But in any of these cases I do NOT own the contents of the object nor do I have full rights to them. My purchase will allow me the various rights to view the movie or read the story or use the software, but anything else that I try to do may be legally limited depending on the license etc. This includes possible limits on resale, making copies, etc.

    @Charles 9 10:56

    "So code is different from books, music, and movies?"

    Yes it is, if it is standard retail software (GNU, MIT, etc. licenses vary). With software you are buying a license to use the software under the terms of the EULA. You are agreeing essentially to a somewhat-contract when you purchase and install it.

    "Last I checked, neither books nor music nor movies are licensed..."

    Not all media and digital media are in exactly the same way as software, but the next time you purchase a regular VHS or DVD movie check out the license limitations. You have a limited right to personal viewing only, you cannot rent it, you cannot provide public viewing, etc., etc.; you can only make a single backup copy assuming you do not break the DRM; etc.

    With books you normally do not agree to a shrink-wrap license when you buy them. However, some books do have limitations printed on them, especially books that include discs with source code, etc., limiting you from selling or publicly distributing the code, or claiming it as your own creation.

    I have no doubt that if it were your authored book or movie or software, that you wouldn't want people exploting your rights to your IP, would you? It's always easy to steal someone else's hard work and money without seeing any impact from it on your own life. I'm always amazed at how free people's morals become when it is someone else's work and it's easy to take or exploit.

    All of this information can be easily found online.

    Next time before giving me the thumbs-down, check your facts before posting, or provide me with real proof for your comments. :-p

  38. Lord Baphomet
    Megaphone

    Licence / License

    "He is represented by lobby group Public Citizen, which claims that Autodesk is using DMCA takedowns incorrectly and that Vernor cannot be bound by a license agreement he never agreed to."

    That would be 'licence'.

    This is a forum for geeks, right?

  39. Charles 9 Silver badge

    @deegee

    "Yes it is, if it is standard retail software (GNU, MIT, etc. licenses vary). With software you are buying a license to use the software under the terms of the EULA. You are agreeing essentially to a somewhat-contract when you purchase and install it."

    That still doesn't mean it's any different from anything else you buy. When one buys a car (to put this in perspective, one of many copies of the same model), one is entitled to drive only as permitted, but it doesn't preclude the right of the owner of the car (you) to turn around an resell it. And cars and other vehicles are used by businesses all the time and no one complains about them being resold (now if they're leased--rented, IOW--that's another story).

    Similarly, with software (one of myriad copies of the same version), one is entitled to use it as permitted, but it is still a copy in one's possession--IOW, it's PROPERTY. Why shouldn't I, as owner of the copy (property), be allowed to turn around and resell it to another party? It's mine, after all. Just as a car dealer can't say I'm not allowed to resell a car I buy, similarly a software company should have no say as to whether or not I resell a copy. All rights to the copy thereof, by law, go with it. That's one reason the First Sale Doctrine was written down in the Copyright Act of 1976, to make those rights clear. One is not allowed to circumvent the First Sale Doctrine with a more-restrictive license, and if it looks like a sale and transacts like a sale, IT'S A SALE. That's why Autodesk lost last time (read the judgment).

    @Lord Baphomet: Both are right. It's an American case, and that's the American spelling.

  40. deegee
    Stop

    @Charles 9 12:02

    You might like to try to read my post again, and perhaps do some research first yourself.

    When you bought that car, did it come with a license that you had to agree to before using it that stating that you could NOT resell it? I'm sure that it didn't.

    Well guess what, MOST software DOES. And when you bought and used that software YOU AGREED TO THAT LICENSE.

    When you buy software it is NOT your property. You own THE MEDIA and a right to use ONLY, you DO NOT OWN THE SOFTWARE NOR DO YOU HAVE ANY RIGHTS TO THAT PROGRAM CODE OTHER THAN YOUR RIGHT-TO-USE AS DESCRIBED IN THE EULA.

    Purchasing a car and purchasing software are NOT the same thing.

    And if anyone here bothered to actually check up on it, all of the throwing around of First Sale Doctrine is false.

    A EULA which prohibits resale is binding because the end user expressly consents to the terms of the EULA and Terms of Use by clicking 'I Agree'. If you don't believe me, check it out yourself. Look up clickwrap contracts.

    You can also Wikipedia first-sale doctrine. Unfortunately, a few US judges believe they make the laws (they do not) and have passed a few cases where they went in favor of the end-user on resale.

    Personally I would have no problem with people reselling software so long as they did not continue to use it themselves, but many people do. And many people purchase upgrades and resell the previous version, which is even further negatory.

    I do take matter with the thought that you own the software itself though, you only own the media and right-to-use. It's like saying that I bought a movie so now I own that film product itself, or I bought a book so now I own that story.

  41. Charles 9 Silver badge
    Thumb Down

    @deegee

    You forget the fundamental tenet of First Sale Doctrine--it sets LIMITS that no one, not even a license, can overreach. YOU CANNOT MAKE A STRICTER LICENSE BEYOND WHAT THE FIRST SALE DOCTINE ALLOWS. First Sale Doctrine as stated in the Copyright Act is a RIGHT, NOT a PRIVELEGE and therefore CANNOT BE COMPROMISED.

    I win.

    http://www.channelregister.co.uk/2009/10/06/software_ownership_ruling/

  42. deegee
    Pint

    @Charles 9 12:10

    lol you win, eh?

    I'll just say this:

    Regarding the case and ruling that you linked, I'm betting it gets thrown out on appeal. Software is NOT the same as "prints of hollywood films", it is not "similar enough".

    1. Then how come the click-wrap license is still upheld by almost all courts.

    2. I'm personally not against people reselling software, so long as either: they never opened or used the software; they sell the entire complete original package and do not continue using a "backup copy"; they inform the buyer and the software company of the license transfer. However, this is too often not the case with used software sales.

    3. As soon as you can go spend a $1 on a blank DVD and steal... er.. "make a backup copy" of your car, sell the original car you just bought, and continue driving the "backup copy" of your car, then you will see those same limitations put onto the sale of cars etc. Because this is what we see by a large number of people with software, and this is why we have click-wrap licenses. If people were honest, we wouldn't need any of this stuff: copy-protection, DRM, etc.

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