from Civil to Inventor

The Autodesk enthusiast exile

Autodesk Vernor Lawsuit

A lawsuit has been ongoing since August of 2007, regarding Mr. Vernor’s alleged sale of R14 on ebay.  Some aspects of the case have been settled but the ongoing current issue appears to be Copyright law and the EULA.

It’s touted as the Big Bad Wolf is squeezing Little Red Riding hood.  It would appear that way, perhaps if I just looked at the headlines, and the face value information. 

There has been considerable discussion about the possibility that the software was already upgraded, at a reduced upgrade fee (there was also a statement that this was not in the case documentation).  If it is true, then the individual accepted an agreement to upgrade or move up to a new product at a reduced cost, and subsequently stop using the old version.

Upgrades

I view a normal upgrade in the following mechanical fashion:

If the product was upgraded, the original is now UPGRADED, and no longer exists.  You can’t sell something that doesn’t exist.

But of course the tiny detail that Autodesk says in order to purchase the license, you agree not to release any portion of the software to any third parties.  Right or wrong, the statement is in there.  Read the EULA. 

I read all of the agreements and summaries that go along with the products, including trademark uses, etc.  I don’t agree with every detail in there, but I do know before I purchase, that the general idea that I can’t sell it again without written approval for Autodesk.

My Opinion

If the guy upgraded at a reduced cost, the sale is unacceptable.

If the guy paid full price at each iteration, box and all, then I am caught between, “I understood Autodesk would not have sold the product to me If I disclosed that I would resell it”, and “I paid $8000 for a CD, and now I’m done using it, and want to give it to the next guy.  Why not?”

Here’s the thing.  I have a “No Whiny Bastards” rule here.  If you accept the paycheck, do the work requested.  When you can no longer deal with what is being asked of you, don’t take the paycheck.  It’s called honor.

If you purchase software knowing you can’t resell it, but then say “that’s just not fair, I should be able to sell something I purchased”, then it’s dishonorable.  Period.  Would I like to resell some older software, HELL YES!!  But the agreement was understood, and saying “yeah, I know about the EULA, and I purchased, but it’s not fair” doesn’t hold water.  If you don’t like the deal, don’t take the deal.  Anything else is just backhanded and dishonorable.

Disclaimer

I did not read every detail of the case. I don’t know if there was an upgrade purchased. I was commenting on the discussion that was published. I have posted the information I did read, so that the facts could be seen as they are.

The Docket Info

Case Number  2:07-cv-01189

Case Name  Vernor v. Autodesk Inc et al

Court  United States District Court, Western District of Washington (Seattle)

Presiding Judge  Richard A. Jones

Initiated On  8/1/2007

Synopsis

eBay seller Timothy Vernor decided to strike back at Autodesk after they issued multiple DMCA takedown notices claiming that his sales of AutoCAD software on eBay violated Autodesk’s copyright. This lawsuit caught the attention of consumer activist group Public Citizen, which is now representing Vernor in the case.

Introduction

Autodesk uses provisions of the DMCA (Digital Millenium Copyright Act) to send takedown notices when someone lists legitimately purchased AutoCAD software for sale on an auction site like eBay. Autodesk’s license agreement prohibits resale, however Mr. Vernor notes that Autodesk’s takedown notices are sent under the auspices of copyright law, not contract law. He further contends that the license agreement is not enforceable in any case.

The main point of the argument here is the notion that the DMCA does not apply because no copyrights are being violated, and therefore Autodesk cannot force auction sites to remove listings of AutoCAD for sale. On its face, this argument has merit because it is not copyright law that prohibits the resale of AutoCAD — it is the shrink wrap license agreement, which falls under contract law.

Information herein was taken from web sources as follows:

Cad Court outline of events and summary

Owen’s statement about initial settlement and remaining issues

Interesting Discussion "Why I think Autodesk is right"

Advertisements

March 26, 2009 - Posted by | Autodesk | , , , ,

7 Comments »

  1. One thing I think you’re missing, and which complicates the case significantly, is that Vernor never agreed to any EULA. (It’s debateable that any of us do in an enforceable way, but I’ll leave that discussion for another place).

    He bought a bunch of R14 boxes from a company that had upgraded them to 2000, and resold some of them. He didn’t agree to Autodesk’s EULA. Even if the EULA is a contract, it’s one that Vernor didn’t enter into.

    Comment by Steve Johnson | March 26, 2009 | Reply

    • Hey Steve,
      Thanks for coming over here. I enjoyed your discussionl.
      I did say that I did not know the complete details of the case, and I am happy you added that for us here.
      Without useing the software, the EULA is not significant. I see.
      However he is bound by the copyright issues. Any word on that verdict?

      Comment by John Evans | March 27, 2009 | Reply

  2. Well, I don’t think Vernor thinks he is bound by the copyright issues. He appears to be of the view that “first sale” overrides all. If it wasn’t for the sold items being the remnants of upgraded software, something I find morally objectionable, I would have agreed with him. It will be interesting to see what the court decides.

    Comment by Steve Johnson | April 3, 2009 | Reply

  3. This verdict could effect the ability to resell software with other EULA like this one; can’t wait to see how it turns out.

    Comment by Pre Settlement Loan | April 3, 2009 | Reply

  4. I doubt that Vernor was ever obligated to “honor” Autodesk’s EULA. Further, Autodesk waived their right to do anything in retribution – if in fact any ever existed.

    Consider an example: let’s say I ask you to hold something for me until I instruct you to return it to me; further, you agree by holding it. But, instead of returning it to me, you gave it to someone else or sold it.

    Such is clearly forbidden according to our agreement, but nothing gives me the right to go after the third party without simultaneously going after you for breaking our agreement. If I fail to go after you, then I am forbidden to go after any third party regardless of all other circumstances, even if that includes the possibility the thing will be forever damaged or destroyed.

    1. It is my understanding that, in law, all objections to anything must be done timely, and in a specified manner. Failure to do so constitutes assent, agreement by implied consent in this particular instance. IF such EULA is enforceable against anyone, Autodesk absolutely must go after the company (unnamed in your article) that purchased the unused “bunch of R14 boxes” and later made them available; otherwise Autodesk waives such right forever. Nothing in the article suggests otherwise, and it appears safe to presume Autodesk made no such noise.

    2. No EULA, or anyting else, can confer greater rights on anyone than they already had.

    3. Clearly Vernor never agreed to any provision of Autodesk’s EULA, thus he is not bound by it, especially in light of Autodesk’s failure to go after the only one they may have had any contractural agreement with – something which is presumed herein but by no means proven.

    I trust the court rules in favor of Vernor, kicks Autodesk’s ass, and awards Vernor millions of dollars in compensation.

    Most of all, I hope this brings sanity to the madness which surrounds the use of fine print that companies automatically acquire the right to do anything.

    If you doubt that companies will try to extend their rights beyond the bounds, watch for the day when Microsoft tries to claim all rights to the GUI.

    Comment by D Gardner | January 10, 2010 | Reply

  5. […] lots of discussion across the internet regarding content.  Issues ranging from ownership of content to the general discussions of net neutrality.  You can charge people for content you can slander […]

    Pingback by Error 404: Content not found « WillofOne | October 30, 2010 | Reply

  6. […] lots of discussion across the internet regarding content.  Issues ranging from ownership of content to the general discussions of net neutrality.  You can charge people for content you can slander […]

    Pingback by Error 404: Content Not Found « SteeleWill's Blog | October 30, 2010 | Reply


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: