An eBay powerseller, Tim Vernor, is suing Autodesk over an alleged abuse of the Digital Millennium Copyright Act. Mr. Vernor has been, for some time, reselling copies of Autodesk software, with Autodesk responding for two years by sending copyright infringement notices to eBay.

Now, the continued notices to eBay have forced them to close the site Mr. Vernor maintains, and he has brought suit against Autodesk for losses, which are small, but punitive damages of $10 million dollars.

The lawyer for Autodesk asserts that the software produced by that company is not able to be legally resold, as it is classified as a license, not a sale.

Mr. Vernor contends that the doctrine of first sale applies. This is a law that states a customer can sell or give away a legally obtained copy of something once it has been paid for, without any permission needed from the copyright holder. The further contention is that a EULA cannot remove this right.

In another, slightly humorous facet to the case, the plaintiff asserts that since the EULA Autodesk uses tells the user that by opening the box, agreement to the terms of the EULA are understood, and consent is implied. The only problem is that this statement is completely inside the box, and so no prior knowledge is possible.

The case is not the first to test the doctrine of first sale, and a similar situation was found in California in 2001, where a man was purchasing Adobe software in a bundle, and reselling it as separate pieces. The California court ruled that the man was not in violation, as the transaction was a sale, rather than a license. Another case is in progress in California concerning CD’s being sold on eBay.

This case is definitely worth watching, as it will have great effect on many software companies, and the liberties they take with EULA wording and usage.

Original article 

Second source

-

[tags] copyright, infringement, EULA, software licensing, lawsuit, EFF, DMCA [/tags]