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Court considers whether its legal to resell software
When you buy a piece of software, you may or may not actually own it. In many instances, software makers insist that what you're actually paying for isn't ownership of the application, but a license to use the application. And if that's all you paid for, then you don't have the right to resell the software.
But what happens when you buy a software CD secondhand? Can you sell it then? That's what Tim Vernor, an eBay dealer did. He bought several copies of AutoCAD. But when he went to sell that software on eBay, Autodesk, the makers of the software contacted eBay and requested that the auctions be suspended. Vernor issued a response, and Autodesk never responded, so his sales were reinstated.
After doing this a few times, eBay apparently received one takedown notice too many, because the auction site canceled Vernor's account. So he took Autodesk to court, claiming that he has every right to sell the software. While formal arguments have yet to be presented, Vernor has already won the first round. A federal judge denied Autodesk's motion to dismiss the case, which means that it can go forward.
The ins and outs of the case are pretty complex, but the judge has ruled that Autodesk has not yet managed to show that Vernor was bound by the company's license and prohibited from reselling the software. If Vernor is successful, this case could pave the way for an increase in used software sales on sites like eBay, although it's likely that the case would only set a precedent in cases that are extraordinarily similar to Vernor's.
[via Techdirt]
Comments
10
Subscribe to commentsRyan AdamsMay 23rd 2008 8:17PM
So the argument is "you didn't buy the software, you bought a license to use the software"?
Wouldn't the easy answer be "fine, I'm not selling your software, I'm selling my license to use the software."?
And on a similar note, wouldn't that argument (buying a licence to use software, not the actual software) invalidate all the recent copy-right infringement cases? I mean, if I download a copy of AutoCAD from thepiratebay, Autodesk can't sue me for damages as they don't even sell AutoCAD (they sell a licence to use AutoCAD), so there would be no lost profit. All they could sue me for would be for stealing a licence to use the software. But first, they would have to prove I used it.
PeterMay 23rd 2008 8:18PM
Ryan - The answer to both of your points is going to be
1) The EULA probably says you cannot resell the license.
2) The copyright violation is in copying the software itself, not the license. Lost profit isn't a requirement for copyright violation. Copying the software and using it without a valid license are really two separate offenses.
(I'm not saying any of this is right, but that's how it's going to go.)
Personally, I think as long as I've removed all my copies of the software and am no longer using it, I should be able to resell it.
Gardiner WestboundMay 23rd 2008 8:23PM
In the early days software could be rented by the day. Microsoft and other publishers shut down the rental stores.
DaveMay 24th 2008 12:43PM
Then what EXACTLY are we paying for when we "BUY" software? If we're buying a license, then the software should be given away FREE OF CHARGE.. If we're buying the software, then the license should be given free of charge.
ONE of these items has to be given freely, we're not buying BOTH under one price, and if we ARE, then why isn't it legal to sell BOTH together?
When I buy a car from Porsche, they are not selling the "VIN number" or title, they are selling me the car itself. Likewise, if I sell the Porsche, the company doesn't turn around and sue me for re-selling their product.
Why is software ANY different than another physical object?
Fine, I'll sell the cardboard BOX it came in, and give the software and serial away for FREE... Then I'm not selling anything other than the packaging.
The logic loop here is freakin endless because of the noose we've ALREADY put our necks in.
Stop the madness, HACK the world.
-Dave.
GutterMay 24th 2008 12:43PM
Are the capitalized words some sort of secret message or something?
JeebusMay 25th 2008 3:15PM
Software is different exactly because it's NOT a physical object. That's why copyright violation is NOT the same as theft.
We need a change to copyright laws. The madness has gone too far. I'll be willing to support copyright for 1-2 years top. After that, it's free for all.
DaveMay 24th 2008 10:03AM
More like emphasis on the key-words of the speech.
- Dave.
ioMay 24th 2008 12:44PM
to them its the intellectual property issue at stake, not the box/serial some of you maniacs yacking about, put yourself in coder's shoes, people. at this time and date we should have some boundary regards to program copyrights, all variations of EULA aren't enough, so are these discussions. its the fundamental education to computer users, whats right and wrong. Isn't that what matters most ? ethics and educations. Have something shields developers from pirates, but not too much as those patent trolls did (namely district court for Eastern District of Texas).
DaveMay 25th 2008 8:33AM
Lets use two examples:
Coder / Programmer Bob goes to his job at Microsoft, writes a program, gets paid an hourly wage or a salary..
In Germany, Dietrich punches a clock and assembles my Porsche..
I'm free to sell my Porsche, but I can't sell my copy of Windows XP?
I bought both from an authorized dealer, used both, and decided to sell both when I upgraded to something new...
BOTH Bob and Dietrich got paid for the time they put in building the products, both got bonuses for completion..
Porsche and Microsoft BOTH got paid for the product I purchased.
Yet Porsche is NOT going to sue or arrest me for piracy if I sell my car complete with VIN number / Title...
There should be NO difference between selling a used car, and a used computer program.
Everyone concerned has (1) gotten their money. And (2) Gotten their use out of each product.
When I upgrade to Vista, I should be able to sell my purchased copy of Windows XP along with its serial.. Windows was already paid for that copy, Bob the programmer was paid for his clock time, and everyone involved with the product lifecycle has been paid.
What software companies are TRYING to do, is get paid full value for something that gets sold second hand.
Its like if I sold you a watch, then you sell the watch, and I sue you for selling the watch you bought from me because you were the only person authorized to wear it.
Maybe this is a whole new market for both lawyers and companies.. Start suing people for selling their used goods because the company or IP owner did not authorize the sale.
Maybe this is the end of sanity because if you don't buy a new product, I'll sue you because your getting money for something I originally sold you..
Maybe Ford should sue everyone who sold any Mustang that wasn't purchased through a dealership..
PIRACY is a completely other issue however.. If I were to build a car that looks like a Porsche, and sell it AS a new Porsche, then I can see where there is a problem.
-- Dave.
JoseBMay 28th 2008 5:28PM
What about refurbished computers? You can walk into some second hand stores and pick up a "cleaned" computer with the original copy of XP loaded on there...is that something MS could sue over? BS