Unfortunately for Autodesk, some courts have already ruled that, despite mind-numbing EULAs that no one reads, if you purchase… er… license software, you still get certain ownership rights, which likely include the right to then sell the software. Autodesk is claiming that the right of first sale doesn’t apply in this case, because the guy did not purchase the software, but merely licensed it, thanks to the shrinkwrap license found inside the box, which the purchaser doesn’t get to read until well after he or she has “purchased” the software (which appears like any normal purchase, rather than license). However, once again, the case takes a bit of a twist. Abusing the DMCA with false takedown notices can get you in a lot of legal hot water. This would appear to be an abuse of the DMCA, sending a takedown notice on content that the seller has a legitimate right to put up for sale. However, instead, Autodesk sent eBay a DMCA takedown notice, claiming that the sale was a copyright violation. Assuming he had removed all copies on his own computer and wasn’t using the software any more, there should be nothing to complain about here. He had purchased a good and was trying to resell it. In this case, the guy had a legitimately purchased copy of AutoCAD and was trying to sell it on eBay. However, short-sighted copyright holders don’t always see things that way.
In fact, studies have shown that an active secondary sales market often helps boost the size of the primary market (if you’ll be able to resell a product later, you’re probably willing to pay more for it initially). In copyright, the right of first sale is designed to allow anyone who buys a copyrighted product the right to resell it without going through the copyright holder - just as when you buy a chair, you can resell it without the manufacturer’s permission.
The case raises some important issues that don’t get nearly enough attention. The folks over at Boing Boing are pointing us to a very interesting case where an eBay seller who was kicked off eBay is now suing software maker Autodesk for $10 million. Fri, Sep 14th 2007 06:43am - Mike Masnick
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