Yesterday morning, we ran an item on the Autodesk case, but we (as in: me) got all confused about what exactly was going on. As it turns out, I was right from the start; despite my update to the item, the case was not resolved. The link in the update referred to an earlier stage of the legal ramblings. However, we now have a real conclusion in this case – and once again, Autodesk lost: software is sold, not licensed. Note: Thanks to Brian W. Carver from Cyberlaw Cases for clearing everything up via email. Much appreciated!
What took place Tuesday was a hearing on the summary judgement motion. Here, parties put forward the undisputed facts, after which it is the judge’s job to apply the law on those undisputed facts (thanks for the explanation, Brian). The judge can then side with either of the two parties, or, if the judge believes there are still disputed material facts, let it go to trial.
After hearing the undisputed facts, judge Richard A. Jones has sided with Vernor, more or less slapping Autodesk on the wrist. Judge Jones points to both the First Sale Doctrine and the Reproduction Exception. The first Sale Doctrine dictates that owners of copyrighted material may resell this material, despite the monopoly copyright holders have over said material. The Reproduction Exception states that owners of software may make any copies necessary to use the program. Without the latter, you would be unable to run software without breaking copyright law.
The judge further states the Vernor is indeed the owner of the copies of the AutoCAD software he was selling on eBay. The judge obviously reiterated that while Autodesk owns the copyright to AutoCAD, Vernor owns the copies.
The judge also addressed some of the concerns raised by Autodesk about what would happen if Autodesk lost. “Autodesk’s suggestion that consumers will be harmed by rising retail prices if software producers compensate for the resale market does not address the concomitant price benefit in the form of reduced resale prices,” the judge writes, “Although Autodesk would no doubt prefer that consumers’ money reaches its pockets, that preference is not a basis for policy.”
Autodesk also claimed that Vernor’s actions constitute piracy. The judge found this claim “unconvincing”. “Mr. Vernor’s sales of AutoCAD packages promote piracy no more so than Autodesk’s sales of the same packages,” the judge states, “Piracy depends on the number of people willing to engage in piracy, and a pirate is presumably just as happy to unlawfully duplicate software purchased directly from Autodesk as he is to copy software purchased from a reseller like Mr. Vernor.”
Autodesk can still appeal the case, but with yet another slam-dunk loss in court, it might just be that they’re going to give up.
Sudden outbreak of Common Sense. Film at 11.
Well, there is more to it than that. The copy of the software is sold, the use of the software is governed by license, which was stated in the courts findings. It is really important here to distinguish between the 2, as they are 2 separate animals. Basically this case upheld copyright law as it exists to begin with. Either way it is good to have a legal precedent for other Judges to use
So true, while the physical media is sold, usage must adhere to the license.
Sadly, sudden outbreaks of Common Sense are easily confined and cured by massive injections of Corporate Interests.
Edited 2009-10-01 19:55 UTC
thats why its not called common sense anymore, but rather uncommon sense because its so rare.
Nicely put!!!
I posted this fact in a thread about modification of Apple software by the end-user, but now, the judgement made in this case has only strengthened the argument. The judge seems to specifically name the consumer as the “owners of copyrighted material” which would correspond to the “owner of a copy of a computer program” from Title 17 section 117 of the US Code (see below).
“it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine”
Link: http://www4.law.cornell.edu/uscode/17/usc_sec_17_00000117—-000-.h…
The Vernor case has some striking implications, because it was based on upgrades. If I have it correctly, what happened was that people were buying upgrades, not new copies. Then they were reselling the originals. So I buy Autodesk 1.x, then buy an upgrade to 2.x, then sell the 1.x copy on, to someone who installs it.
That is rather fundamental and (have I got it right?) different. It would say that if you buy an upgrade package, Snow Leopard, for instance, you can then sell the base Leopard disks to someone else who can then do a legal install of Leopard. Office similarly. Windows similarly. Photoshop similarly. It is basically saying the rules on upgrades are very different from what we have been used to thinking.
The justification for this is that the upgrade and the original are sold, not licensed, and so can be resold, and that S117 applies and permits lawful owners of copies to install and use.
The implications for Apple are, as I have often argued, that copyright is not going to get them what they want. There isn’t any doubt that when you buy a retail copy of software, as far as copyright law goes you have the right to install it on whatever you want.
The only thing that may stop you is the EULA clause. Now that is going to be a whole lot harder to manage. This is going to be a contract entered into with no consideration, whose terms were not presented at the time of the sale, which is a contract of adhesion, and where there is disparity in negotiating power between seller and (consumer) buyer. In the EC, this is going to be a dead duck. Probably in the US also.
Like Thom, I am really puzzled by the Mac Fanatics. They react as if Apple was going to be unable to bundle if Psystar wins. But that isn’t the issue, if Psystar wins, then you will still be able to buy the whole works and its famous integration from Apple, you will just not be obliged to if you don’t want to. What is so threatening about that? Anyone would think Apple is going to be prohibited from selling preinstalled systems. Why do the Mac people get so excited about other people having hardware choices which they want, but which they (the Mac people) do not? Most mysterious.
anyway, who did invent that “license” for product selling??
Imagine me trying to get a license from VW, just to drive my car… “You can not sell cars, because we are selling u the license, not the car!!!”. That mean if I need to drive the car of my gf I must have a license to drive her car too??
I don’t know who invented it, but it goes back before software. My parents have an antique Edison Co. phonograph machine and, I kid you not, it has a little patent notice plastered on the side of it.
It says something to the effect of, “By purchasing or otherwise obtaining this machine you acknowledge the validity and enforceability of all patents of the Edison Company.”
I was blown away…a hundred year old piece of hardware with an EULA.
There’s still hope! The arguments presented by the judge are plain common sense, It’s refreshing to see a member of tje judiciary system applying the right interpretation of the law, not siding with the big bucks, but with the just.
if software is sold and not licensed, then how can apple enforce it’s eula and force people who buy it not to install it on compatible non apple computers?