A new test case of the DMCA--this time over an eBay auction

Like a lot of people, Timothy Vernor makes his living selling stuff on eBay he and his girlfriend acquire by scouring local garage sales. But his repeated attempts to resell packages of AutoCAD have led to a tussle with Autodesk and a square-off over the meaning of the Digital Millennium Copyright Act.

Tim Vernor

(Credit: Tim Vernor)

When Vernor first put a copy of AutoCAD up for resale on eBay, Autodesk said a sale would violate its copyright under the terms of the DMCA. eBay suspended the auction and Vernor responded with a DMCA counter-notice. When Autodesk failed to respond, eBay reinstated the auction.

A couple of years later, Vernor got into another tiff with Autodesk.

Even though he ultimately sold off three of four AutoCAD packages he purchased, each attempt turned into a mini-soap opera with DMCA notices flying in all directions. After Autodesk filed a fourth DMCA notice, eBay pulled the plug on his auction, suspending Vernor's account for repeat infringement.

Vernor later went to court to declare his actions lawful and get the court to find Autodesk guilty of unfair competition.

So far, he's ahead in the count, but still at bat.

In a ruling (PDF) filed with the U.S. District Court Western District of Washington at Seattle, federal judge Richard A. Jones wrote that Autodesk can't prevent Vernor from pressing ahead with his lawsuit.

Jones' 21-page opinion cited the so-called first sale doctrine, which paves the way for the owner of a lawful copy of a copyrighted work to sell it. If Vernor ultimately prevails in his lawsuit, the case may set a precedent about the limits of copyright protection.

Attorneys for Autodesk did not respond for comment. For his part, though, Vernor said he was "thrilled, though this didn't really come as surprise. I just really had lot faith in our position."

The 38-year-old, who has been an eBay reseller for the last eight years, said he was surprised when eBay initially shut him down. "I really couldn't believe it. There was always the chance that they misunderstood and thought it was a pirated copy. I basically told (the Autodesk attorney) that I didn't believe it was a violation and would continue to sell the item, and then they threatened further action."

Both sides are slated to meet next month with the judge to decide upon the next steps in the case.

[pmfjoe]

The sooner a court actually decides the legitimacy of not only the ELUAs but also whether or not you actually own the software, have a perpetual license, or have a revocable license. The better off the whole industry will be.

[C_G_K]

Microsoft, as the world's number one purveyor of vaporware, must be sweating over this case and the precedent it could set. Their license terms are insanely slanted in their favor. People should be able to sell their legal license to whomever they please.

[Stormspace]

Licenses should also be transferable as well. It's rediculous that a legal copy of an OS can't be moved to another PC without violating the EULA.

[Rezabe]

If we can't resell our legal software packages like this one, so how about selling our computers?! What if someone lists a laptop pre-installed with windows , office, and somany other softwares even autocad?!
I think it doesn't make any sense to prohibit this reselling under copyright law. What is the difference between a car and an autocad package?! Aren't they both products of different piece of copyrighted and patented materials?

Any way that's just what I think and law always has so many strange things to shows!

[Modred]

You own a car; in most cases, you don't own the software you buy. Instead, you are granted a license to use it under certain conditions. But even more fundamentally, I can't make a copy of a car using copy+paste.

I think many software vendors believe they need these (often) draconian license agreements because software is so easy to copy. Technically, reselling software would be distribution, so I can understand how they argue it violates copyright. Still a bit silly, though.